Does sending intimate recordings to the victim constitute distribution under Utah law? State v. Kitches Explained

In State v. Kitches, the Utah Court of Appeals addressed whether sending voyeuristic material to the person depicted constitutes “distribution” under Utah’s voyeurism statute, settling an important question about the scope of the offense.

Background and Facts

Daniel Kitches monitored his ex-wife’s text messages through integrated messaging after their divorce and discovered she was dating. Over eight days, he threatened to distribute a video he secretly recorded of them having sex. When she refused his demands to reactivate his phone service, he sent her clips of the intimate video via text and email. He also drove to her boyfriend’s house at 4:30 a.m., pounded on the door, then broke into her parents’ home at 5:00 a.m. where the children were staying. A jury convicted him of multiple voyeurism counts, voyeurism-distribution, stalking, and criminal trespass.

Key Legal Issues

Kitches challenged the sufficiency of evidence for all convictions and argued that “distribution” under Utah Code § 76-9-702.7(3) requires sending voyeuristic material to third parties, not to the victim depicted. He also contested jury instructions on voyeurism-distribution and stalking offenses.

Court’s Analysis and Holding

The court rejected Kitches’s interpretation of “distribution.” Analyzing the statute’s plain language, the court found that distribution means “to deliver” and occurs when voyeuristic material is sent to “another individual,” including the victim. The court distinguished Utah’s revenge-porn statute, which explicitly requires distribution “to any third party,” noting the legislature’s purposeful omission of such language from the voyeurism statute. The court found ample evidence supporting all convictions, including multiple distinct acts constituting stalking’s required “course of conduct.”

Practice Implications

This decision clarifies that voyeurism-distribution prosecutions can proceed even when material is sent only to the victim. Practitioners should understand that the statute criminalizes any transfer of voyeuristic recordings, regardless of recipient. For stalking charges, attorneys must carefully analyze whether multiple distinct acts occurred, as the offense requires “two or more acts” directed at the victim. The court’s emphasis on viewing acts “cumulatively in light of all facts and circumstances” demonstrates that seemingly isolated incidents may collectively establish a course of conduct.