State v. Coble

2010 UT App 98, 232 P.3d 538, 654 Utah Adv. Rep. 16, 2010 Utah App. LEXIS 96, 2010 WL 1617482

• Court: Court of Appeals of Utah
• Decided: April 22, 2010
• Docket: 20080866-CA
• Status: Published

Opinions

OPINION

THORNE, Judge:

¶ 1 The State brings this interlocutory appeal from the district court’s bindover order reducing the charge against defendant Frank C. Coble from distributing pornographic material, a third degree felony, see Utah Code Ann. § 76-10-1204 (Supp.2009), to lewdness, a misdemeanor, see id. § 76-9-702. The district court concluded that, under the circumstances, the felony pornography distribution charge was barred by the doctrine enunciated in State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969), limiting the prosecution of a defendant to the less serious of two crimes with identical elements (the Shondel doctrine). We reverse and remand this matter for further proceedings.

BACKGROUND

¶ 2 In December 2006, Coble was online in an internet chat room. At some point, Coble initiated a private chat with an individual he believed to be a fourteen-year-old girl, but who was actually an undercover police officer. During the course of the chat, Coble activated the web camera attached to his computer, focused it on his genitalia, and began masturbating. The web camera produced a live image that was transmitted to the undercover officer, who then used computer software to record still photographs of the live images. Based on these facts, the State charged Coble with distributing pornographic material.

¶ 3 The district court held a preliminary hearing in February 2008. Before the district court ruled on whether to bind Coble over as charged, Coble submitted a memorandum arguing, among other things, that (1) the distribution of pornography statute excluded private, one-on-one conversations or interactions; (2) the live web camera images were not “material” as contemplated by Utah Code section 76-10-1201, see Utah Code Ann. § 76-10-1201(7) (2008); (3) Coble’s actions did not constitute a public performance under Utah Code section 76-10-1204(l)(f) because the alleged conduct occurred in a private internet chat room, which is not a “public place,” see id. § 76-10-1204(l)(f) (Supp. 2009); and (4) Coble was entitled to have the charge reduced to lewdness under the Shon-del doctrine. In response, the State filed a motion for bindover on the charge of distributing pornographic material.

¶4 After hearing arguments on the motions and issuing an oral ruling, the district court issued written findings of fact, conclusions of law, and an order. The district court concluded that “[a] web camera’s capture of a person masturbating comes within the definition of ‘material’ for purposes of Utah Code [section] 76-10-1201(7).” The district court then determined that Coble’s “alleged act of exhibiting himself to one other person via a web camera over the Internet in a private chat room while in the act of masturbation may come within the definition of distributing pornographic material for purposes of Utah Code [section] 76-10-1204.” However, the district court also concluded that Coble’s alleged act “comes within the definition of lewdness for purposes of Utah Code [section] 76-9-702.” Accordingly, the district court determined that the Shondel doctrine was applicable because “the elements of Utah Code [section] 76-10-1204, distribution of pornographic material, and the elements of Utah Code [section] 76-9-702, lewdness, as applied to the alleged facts of this case, are wholly duplicative.” Based on these conclusions, the district court denied the State’s motion for bindover on the felony charge and instead ruled that the prosecution could proceed only on a charge of misdemeanor lewdness.

¶ 5 The State petitioned for interlocutory appeal of the district court’s bindover order on the Shondel issue, and we granted the State’s petition. However, Coble did not seek interlocutory review of the district court’s decision that a webcam feed constituted “material” for purposes of the pornography distribution statute, nor did he petition for review of any other express or implied rejection of his arguments by the district court. Coble also did not initiate a cross-appeal upon the granting of the State’s petition.

ISSUE AND STANDARD OF REVIEW

¶ 6 The only issue properly before this court on appeal is the Shondel issue raised by the State. The State argues that the district court erred in applying the Shon-del doctrine to reduce Coble’s felony pornography distribution charge to one of misdemeanor lewdness because the elements of the two crimes are not identical. “Our review under the Shondel rule focuses on the trial court’s legal conclusions, which we review under a correction-of-error standard, according no particular deference to the trial court’s ruling.” State v. Green, 2000 UT App 33, ¶ 5, 995 P.2d 1250 (internal quotation marks omitted).

ANALYSIS

¶ 7 Coble was charged with distributing pornographic material under Utah Code section 76-10-1204 when he transmitted a live web camera image of himself masturbating to another individual in a private chat room on the internet. The relevant portions of section 76-10-1204 as it applies to this case provide as follows: “A person is guilty of distributing pornographic material when the person knowingly ... distributes or offers to distribute, or exhibits or offers to exhibit, any pornographic material to oth-ers_” Utah Code Ann. § 76-10-1204(l)(c) (Supp.2009). Thus, to be convicted of distributing pornographic material, Coble must have (1) knowingly; (2) distributed or exhibited, see id. § 76-10-1201(3)-(4) (2008); (3) to others; (4) material, see id. § 76-10-1201(7); (5) that was pornographic, see id. § 76-10-1203(1). By contrast, the crime of lewdness is committed when a defendant performs any of a number of enumerated acts, including masturbation, “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.” See id. § 76-9-702(1) (Supp.2009).

¶ 8 Under the Shondel doctrine, “where there is doubt or uncertainty as to which of two punishments is applicable to an offense an accused is entitled to the benefit of the lesser.” State v. Shondel, 22 Utah 2d 343, 453 P.2d 146, 148 (1969). However, subsequent cases have made clear that application of the Shondel doctrine is limited to cases where the elements of two different crimes are truly identical. “[I]f one or both of the crimes at issue require[ ] proof of some fact or element not required to establish the other, the statutes do not criminalize identical conduct and the State can charge an individual with the crime carrying the higher classification or more severe sentence.” State v. Fedoroioicz, 2002 UT 67, ¶ 47, 52 P.3d 1194 (alteration in original) (internal quotation marks omitted). “Unlike the merger doctrine, the Shondel doctrine treats as irrelevant the conduct of a particular defendant; only the content of the statutes matters.” State v. Williams, 2007 UT 98, ¶ 14, 175 P.3d 1029.

¶ 9 Examining the statutory elements at issue in this case, it is clear that, at the very least, the pornography distribution statute differs from the lewdness statute by requiring the State to prove that the material or performance underlying the charge is pornographic, as opposed to merely lewd. Compare Utah Code Ann. § 76-10-1203(1) (defining “pornographic” as appealing to a prurient interest in sex under community standards, being patently offensive, and lacking other value), vnth id. § 76-9-702(1) (Supp.2009) (enumerating lewd acts including acts of sexual intercourse or sodomy, exposure, masturbation, and “any other act[s] of lewdness”). In this case, a lewdness conviction would require only proof that Coble masturbated under circumstances that violated the lewdness statute. While those same circumstances might also establish certain elements of the pornography distribution statute, the State would additionally have to prove that the webcam feed of Coble masturbating was pornographic, i.e., that it appealed to a prurient interest in sex under community standards, was patently offensive, and lacked other value, see id. § 76-10-1203(1) (2008). Accordingly, because the legislature has chosen to define the two offenses differently, the Shondel doctrine is not applicable here and the district court’s order reducing Coble’s charge must be reversed.

¶ 10 Coble dedicates a substantial amount of his appellate briefing to arguing various theories as to why his private, noncommercial webcam feed cannot constitute the distribution of pornography under Utah Code section 76-10-1204. For example, Co-ble argues that the live nature of the webcam feed renders it a private “performance” under the statute rather than “material,” an argument expressly rejected by the district court. These arguments are not, however, properly before us because Coble failed to bring them either by way of a cross-appeal or by separate petition for interlocutory appeal. See generally State v. South, 924 P.2d 354, 355-57 (Utah 1996) (applying the doctrine enunciated in Langnes v. Green, 282 U.S. 531, 538-39, 51 S.Ct. 243, 75 L.Ed. 520 (1931)).

[Litigants must] cross-appeal or cross-petition if they wish to attack a judgment of a lower court for the purpose of enlarging their own rights or lessening the rights of their opponent. Conversely, if appellees or respondents merely desire the affir-mance of the lower court’s judgment, they need not, and should not, cross-appeal or cross-petition. “The practical justification for the rule is that a party satisfied with the action of a lower court should not have to appeal from it in order to defend a judgment in his or her favor on any ground no matter what an adversary does.” Nor should a party be allowed to employ its adversary’s appeal or petition as a vehicle to gain a greater benefit than that granted below.

Id. at 355-56 (citations omitted).

¶ 11 Coble’s arguments go far beyond merely defending the district court’s decision applying the Shondel doctrine. Indeed, if successful, Coble’s arguments would result in a ruling from this court precluding the State from prosecuting at least some webcam feeds — including Coble’s — as the distribution of pornography. Such a result would constitute “enlarging [Coble’s] own rights or lessening the rights of [the State],” see id. at 355, and Coble was therefore required to pursue that result by way of his own interlocutory appeal or cross-appeal. Having failed to do so, Coble is not entitled to have us consider his arguments that his alleged actions cannot be punished as the distribution of pornography.¹

CONCLUSION

¶ 12 The district court erred in reducing the charge against Coble from distributing pornographic material to lewdness under the Shondel doctrine because the elements of those two crimes are not identical. Accordingly, we reverse the district court’s order and remand for further proceedings under the original charge.²

¶ 13 I CONCUR: CAROLYN B. McHUGH, Associate Presiding Judge.

1 . The Utah Supreme Court has also held that it is not appropriate for this court to reverse a trial court’s decision on alternative grounds, i.e., grounds other than those raised by an appealing party. See State v. Robison, 2006 UT 65, ¶¶ 20-22, 147 P.3d 448; cf. Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 (stating than an appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record). Here, the only ground for reversal urged by the State was the district court’s misapplication of the Shondel doctrine. Coble’s arguments cannot be considered as alternate grounds for affirming the district court’s bindover order because success on those arguments would necessarily require a complete dismissal of the pornography distribution charge and reversal of the portion of the order allowing the prosecution to proceed on the uncharged count of lewdness. Cf. State v. South, 924 P.2d 354, 357 (Utah 1996) (“The State merely offered another line of reasoning which, if accepted, would result in precisely the same outcome as that originally granted by the trial court .... ” (emphasis added)).

2 . Although we do not address Coble’s arguments about the proper interpretation and application of the pornography distribution statute as it applies to private webcam feeds, this opinion is not intended to preclude Coble from raising those same arguments on a direct appeal or seeking to raise them by petition for interlocutory appeal. We also do not mean to discourage further development of these issues in the district court, particularly to the extent that such development might include factual determinations relating to the nature of webcam technology for purposes of satisfying the "material,” "distribution],” and "exhibition]” elements of Utah Code section 76-10-1204. See Utah Code Ann. § 76-10-1204(l)(c) (Supp.2009).