Salt Lake Criminal Defense Attorney - Clayton Simms

new_clayton_about A criminal charge, whether it is a felony or misdemeanor, can be a life changing event. Clayton Simms is a fierce advocate for people who have been charged with misdemeanor and felony offenses. He represents clients who are facing charges in Salt Lake City and Greater Salt Lake County. In addition, he also represents clients along the Wasatch front. Clayton Simms represents defendants in other crimes Clayton has represented athletes, doctors, lawyers, and other notable people and has been featured on the news. Do you have a legal question? Contact Clayton Simms today!

First Amendment Freedom of Profanity and Accompanying “Gestures” – Even Towards Police

The First Amendment protects a Utah residents rights to speak their opinions and frustrations, even by the use of profanity and accompanying gestures during dealings with police.

Photo by: John Nakamura Remy

First Amendment

The First Amendment to the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The phrase “freedom of speech” gets thrown around a lot, yet many citizens may wonder exactly how free they can be with their speech, especially when dealing with police.

Profanity

Many individuals would not want to participate in a verbal altercation with a police officer, yet some may blurt out profanity or obscenities before thinking of the possible consequences. Fortunately, freedom of speech protects a person’s right to use profanity, whether spoken or nonverbal like the use of the middle finger. When a Utah resident is dealing with police, there is a good chance that emotions will be running high.

Photo by: Ron Bennetts

Someone facing an arrest or feeling like they were the recipient of a biased traffic stop might have some choice words for attending officers. Perhaps they were able to bite their tongue but couldn’t help flipping the bird toward less than friendly police. Or maybe a person’s normal vocabulary is similar to that of a sailors and using obscenities is just how they communicate with everyone. Regardless of why someone would use profanity with police, it might make officers uncomfortable but it is protected free speech.

Don’t take it too far

While everyone should feel free enough to use whatever language they want or give the middle finger when they feel like it, there are times when profanities and other obscenities could cross the line. If someone uses their harsh language to try to get others to join in a fight against officers, that could be considered disorderly conduct or inciting a riot. Another example is if the foul language being used describes sexual behavior against children that most people would find offensive or disturbing. In these and like incidents, using profanity could end with criminal charges.

Spoken crimes

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There are some words and phrases beyond profanities that are also not protected under the First Amendment. Some of these include:
Threats of violence – Utah Code 76-5-107 warns residents that verbally “[threatening] to commit any offense involving bodily injury, death, or substantial property damage, and [acting] with intent to place a person in fear of imminent serious bodily injury, substantial bodily injury, or death” . . . is punishable as a class B misdemeanor.
Threats of terrorism – Utah Code 76-5-107.3 explains that “a person commits a threat of terrorism if the person threatens to commit any offense involving bodily injury, death, or substantial property damage, and: threatens the use of a [real or hoax] weapon of mass destruction . . . “ A verbal threat of that magnitude is a second degree felony.
Harassment – Harassing another person or as Utah Code 76-5-106 defines as “. . . with intent to frighten or harass another, [when the actor] communicates a written or recorded threat to commit any violent felony” is a class B misdemeanor.
Obstruction of Justice – According to Section 76-8-306, “An actor commits obstruction of justice if the actor, . . . inten[ds] to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense”. A couple ways someone could use their words to obstruct justice is by warning a suspect of police activity or by providing false information to law enforcement. Obstruction of justice is charged one degree less than the crime for which the person is obstructing.

Use freedom of speech wisely

Not all talking points or usage of profanities are protected free speech, but the First Amendment can help those who have a tendency to run their mouth when talking to law enforcement. If someone is facing charges due to their use of profanity when dealing with police or if they crossed the legal line with their words, it is best to consult with a criminal defense attorney before attempting to play the free speech card.

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Utah Man Charged a Second Time With Enticing A Minor

A Utah man facing charges for enticing a minor was arrested a second time after attempting to entice a minor while out on bail.

Online crimes

Photo by: Bill Selak

31 year old Kyler Craig Robertson was arrested in early May for enticing a minor after he was caught trying to lure a young teen off the internet to meet him for sex. Robertson was arrested when the teen he was trying to meet up at a local park turned out to be an undercover police officer. Robertson told authorities he had sexual thoughts about minors and that he considered himself a danger to children. Regardless of this confession that could put other minors in harm’s way, he was released on bail shortly after his arrest.

Arrested while on bail

Less than three weeks following his arrest for enticing a minor, Robertson again attempted to entice a teen on the internet. When he arrived at the planned location to engage in sexual activity, he was arrested again. Robertson admitted to being attracted to young teens and claimed he also viewed child pornography. Following his second arrest, his bail was listed at a hefty $100,000.

Enticing a minor

Utah Code 76-5-401 states “A person commits enticement of a minor when the person knowingly uses the Internet or text messaging to solicit, seduce, lure, or entice a minor, or to attempt to solicit, seduce, lure, or entice a minor, or another person that the actor believes to be a minor, to engage in any sexual activity which is a violation of state criminal law.” The punishment for enticing a minor depends on the type of sexual activity the suspect intended to engage in with the minot. Section 76-5-401 goes on to explain that “Enticement of a minor . . . is punishable as follows:

(a) enticement to engage in sexual activity which would be a first degree felony for the actor is a . . . second degree felony upon the first conviction . . . ;
(b) enticement to engage in sexual activity which would be a second degree felony for the actor is a third degree felony;
(c) enticement to engage in sexual activity which would be a third degree felony for the actor is a class A misdemeanor;
(d) enticement to engage in sexual activity which would be a class A misdemeanor for the actor is a class B misdemeanor; and
(e) enticement to engage in sexual activity which would be a class B misdemeanor for the actor is a class C misdemeanor.”

Double or subsequent charge

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The charges against Robertson would have been a first degree felony had he committed the act he intended to do with the young teen, so he is now facing multiple second degree enticement charges as explained above. It has not yet been stated whether or not he will be facing those charges together or individually, one right after the other, otherwise known as a subsequent charge. Section 76-5-401 warns that a second or any subsequent conviction of a second degree enticement charge is. . . “punishable by imprisonment for an indeterminate term of not fewer than three years and which may be for life”.

Knowing he’s a danger

Robertson committed these crimes against minors, but he also knew that he had a problem. By voicing to authorities his sexual feelings toward minors and admitting he was a danger to children, he was putting the safety of potential victims in the hands of the judicial system. Releasing him on an obtainable bail the first time set him up to fail a second time while also putting those around him in danger. Anyone facing criminal charges, regardless of whether or not they have a mental health issue is encouraged to be represented by a qualified attorney.