Can see-through covering prevent a lewdness conviction in Utah? State v. Powell Explained

The Utah Court of Appeals addressed an important question about the boundaries of criminal exposure in State v. Powell, examining whether covering one’s genitals with see-through material can prevent a lewdness conviction.

Background and Facts

Powell was convicted of two counts of lewdness arising from separate incidents at retail stores. Witnesses observed Powell in his wheelchair wearing jeans with the crotch area “cut out,” with only see-through mesh material covering his genitals. Both witnesses testified they could see his penis through the material. Powell admitted to police that he regularly exposed himself in public “for the thrill of it” and confirmed he typically wore “spandex or mesh material” that someone “could see through.” The trial court denied Powell’s motion for directed verdict, and the jury convicted him on both counts.

Key Legal Issues

Powell argued his conduct did not constitute criminal exposure under Utah Code Section 76-9-702(1) because his genitals were technically “covered” by mesh material. He also claimed his trial counsel provided ineffective assistance by failing to object to jury instructions and not moving to dismiss based on destroyed surveillance evidence.

Court’s Analysis and Holding

The Court of Appeals reviewed the sufficiency of evidence in the light most favorable to the verdict and applied the correctness standard to the directed verdict ruling. The court held that covering genitals with see-through material does not prevent criminal exposure when witnesses can actually observe the defendant’s genitals. The testimony that witnesses “could see, and actually did see, his penis” through the mesh material was sufficient to establish the exposure element of lewdness. The court rejected Powell’s ineffective assistance claims, finding no deficient performance in counsel’s handling of jury instructions or failure to file suppression motions.

Practice Implications

This decision clarifies that Utah’s lewdness statute focuses on actual visibility rather than technical covering. Defense attorneys should concentrate on whether witnesses could genuinely observe their client’s genitals rather than arguing that any form of covering defeats exposure charges. The ruling also demonstrates the high burden for proving ineffective assistance when counsel’s decisions can be characterized as reasonable trial strategy.