Photo: Bernard Pollack
There is an old saying about obeying the letter of the law versus the spirit of the law. In a nutshell, following the letter of the law means to obey the literal interpretation (the letter) of the law but not necessarily the intent (or spirit) of those who wrote the law. When it comes to a criminal appeal, it is usually up to the court to work according to the very specific letter of the law. This was the case recently with Eric Leon Butt, Jr., who was convicted for distributing harmful materials to a minor and took his appeal to the Utah Supreme Court.
Even if She Asked, Still a Bad Idea
The case that resulted in the Butt’s conviction of distributing harmful materials to a minor began when Butt was already incarcerated in the San Juan County Jail on charges of theft. From jail, Butt mailed two separate letters addressed to his wife with individual letters for her, his eight-year-old son, and five-year-old daughter. In both instances, the letter to his daughter contained a nude drawing of himself. In the second letter, the picture showed the Defendant holding the daughter’s buttocks up to his mouth with a balloon caption saying, “Hi beautiful girl. I miss you so much. I can’t wait to bite your butt cheek. This is what it will look like. I love you.”
Both letters were intercepted by a prison guard and taken to Deputy Alan Freestone, the deputy sheriff for the San Juan County Jail. Freestone asked Deputy Martha Johnson to find out the ages of Butt’s children without explaining the motivation or asking for any other information. As a result of the information gathered, the State moved forward and convicted Butt of two counts of distributing harmful material to a minor according to Utah Code 76-10-1206.
In regard to the nudity in the drawing, Butt testified in the original hearing that he did intend for her to see the pictures and didn’t find them offensive because his daughter had specifically asked him to draw a picture of himself like the cave drawings she had seen in a documentary. Regarding the second picture, Butt claimed it depicted a game he played with his daughter that involved biting and tickling.
Butt appealed this conviction. In order to address the Defendant’s contention that his Fifth Amendment rights were violated and that the State’s case lacked sufficiency of evidence, the Supreme Court got down to the “letter” of the law, examining several individual definitions to determine if this was indeed a proper conviction.
A Question of “Custody” and “Interrogation”
The first argument Eric Butt proposed in regards to what he believed was an improper conviction of distributing harmful materials to a minor was that his Fifth Amendment rights were violated when Deputy Johnson asked him about his children’s age without issuing him his Miranda warning. The portion of the Fifth Amendment of the U.S. Constitution applicable here is the following:
“No person . . . shall be compelled in any criminal case to be a witness against himself.”
In order to preserve this right, the U.S. Supreme Court stated that a defendant being subjected to “custodial interrogation” is entitled to his/her Miranda warning [“You have the right to remain silent,” etc.] The Defendant claimed that even though the information about his children could have been attained elsewhere, since it was a necessary element of the crime of which he was being accused, he should have received a Miranda warning.
To evaluate this assertion, the Utah Supreme Court examined the words “custody” and “interrogation.” Their first step was determining whether or not a reasonable person would have felt that he or she was at liberty to terminate the interrogation and leave–regardless of whether said person was already incarcerated, as in the case of Butt. This included “the location of the questioning, its duration, statements made during the interview, the presence or absence or physical restraints during the questioning, and the release of the interviewee at the end of the questioning.”
When examining these circumstances, even though Deputy Johnson “was sent deliberately to ask Defendant a pointed question that elicited a response concerning an element of the crime being investigated” and that a defendant in a prison cell would never feel “free to leave,” ultimately the other factors weighed against Butt, and the Supreme Court decided Miranda warnings were not required.
Defining “Distributing Harmful Materials”
In the second challenge to his conviction of distributing harmful materials to a minor, Butt questioned the terms of the conviction itself. The Utah Supreme Court thus followed suit to see if, A) he did intentionally “distribute” the material, and B) whether the material would be considered “harmful to minors.”
According to Utah Code 76-10-1201(3), “distribute” is defined as “transfer[ring] possession of materials whether with or without consideration.” The State was tasked with proving that Butt did this with intent to commit the crime or that he acted with awareness that his conduct was going to cause a criminal result.
Butt argued that this didn’t apply because the letters and pictures in question were addressed to his wife, not his daughter. His wife would ultimately have the decision of deciding whether or not the material was appropriate. While this may have been a valid argument, in what was a mistake in his original trial, this information was never brought up, and according to State vs. Holgate, “[C]laims not raised before the trail court may not be raised on appeal” unless the defendant can demonstrate some form of exceptional circumstances or error, neither of which Butt was able to do.
The next question was over the definition of “harmful to minors.” According to Utah Code 76-10-1201(5)(a), for the State to prove this, the material in question must meet the following three criteria:
- taken as a whole, appeals to the prurient interest in sex of minors,
- is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and
- taken as a whole, does not have suitable value for minors.
Butt contended that the State hadn’t met its burden of proof on the first two criteria. He questioned the fact that the State only presented the letters and not any additional evidence or expert testimony to support the terms “harmful,” “prurient,” or “patently offensive.” However, according to decisions on several previous similar cases, the legislature relinquished its ability to define such terms, leaving that responsibility to the jury.
According to the Appeals Court documents: “As an appellate court, our role in reviewing a sufficiency of the evidence claim is simply to ‘consider the evidence and the inferences that may reasonably be drawn from that evidence to determine whether there is a basis upon which a jury could find the defendant guilty beyond a reasonable doubt.’ In a ‘harmful to minors’ case, it is left to the jury to decide for itself what is harmful and what is not. We therefore conclude that the State’s presentation of only the drawings in question falls within the parameters of the ‘harmful to minors statute, and that the jury reasonably drew the inference that the material met the elements of ‘harmful.’”
The Best Offense is a Good Defense
This example serves yet again to illustrate the importance of a good criminal defense attorney. Perhaps raising the question of whether Butt actually “distributed” the material in his original trial might have been enough to acquit.
Remember, there is a reason for professional criminal defense attorneys. If you in trouble with the law, either for distributing harmful material to a minor or something else, make sure you seek their counsel. They have your best interests in mind.
[For another recent post discussing the issue of how mail being sent by a prisoner is handled, click “Sixth Amendment Violation the Basis for Court of Appeals Decision”
For another appeals case that might have been handled better in trial court by the Defendant’s defense attorney, click “Fingerprint Evidence Questioned in Utah Appeals Case”]