                  This opinion is subject to revision before final
                       publication in the Pacific Reporter

                                  2017 UT 33


                                     IN THE

        SUPREME COURT OF THE STATE OF UTAH

                            ERIC LEON BUTT, JR.,
                                 Appellant,
                                        v.
                               STATE OF UTAH,
                                 Respondent.

                                No. 20141121
                             Filed June 19, 2017

                             On Direct Appeal

                    Seventh District, San Juan
               The Honorable Judge Lyle R. Anderson
                         No. 130700030

                                  Attorneys:
    Troy L. Booher, Beth E. Kennedy, Salt Lake City, and Eugene
         Volokh, Los Angeles (pro hac vice), for petitioner
Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Att’y Gen., Salt Lake
                       City, for respondent

 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
 which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS,
                    and JUSTICE PEARCE joined.


 ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
  ¶1 This case comes to us on appeal from the district court’s
denial of Eric Leon Butt, Jr.’s, petition for post-conviction relief.
Petitioner challenges his conviction for dealing materials harmful to
minors, alleging ineffective assistance of trial counsel. The basis for
this claim is trial counsel’s failure to assert certain defenses under the
state and federal constitutions—a free speech defense and a “parent-
child communication” defense. The district court denied Butt’s
petition.
                            BUTT v. STATE
                         Opinion of the Court
  ¶2 We reverse. We conclude that counsel was ineffective in
failing to assert a First Amendment defense and that such a defense
would have succeeded if it had been raised. We vacate Butt’s
conviction on this basis (and decline to reach the merits of his other
claims).

                                   I

  ¶3 Petitioner was convicted of two counts of dealing harmful
materials to a minor. See UTAH CODE §§ 76-10-1201(5)(a), -1206(1)(a).
The counts relate to two letters Petitioner sent to his family from jail
while awaiting sentencing for theft. While processing Petitioner’s
first letter for mailing, a jail guard noticed a drawing that concerned
him. And he held the letter for review by his jail commander.

  ¶4 The letter included handwritten notes to Petitioner’s wife and
five-year-old daughter. Petitioner wrote to his daughter: “Well I
know you want me to draw my whole body, but I can’t draw very
good, so this will have to work.” The drawing was an unskilled,
hand drawn picture portraying Petitioner naked. While the drawing
was rough, it depicted Petitioner’s nipples, chest hair, pubic hair,
penis, and testicles.

  ¶5 Three days later, without knowledge that his first letter had
been intercepted, Petitioner wrote a second letter. This letter was
also intercepted. In this letter, Petitioner again wrote a short note to
his daughter: “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.”

  ¶6 Below this note, Petitioner had again roughly sketched a
picture of himself naked. This picture was even more rudimentary
than the initial drawing. But it portrayed Petitioner’s nipples, penis,
and testicles. This time, however, he was holding his daughter up
with her bottom next to his mouth. A speech bubble from his mouth
read: “Oh your butt taste [sic] so good.” And a second speech bubble
from his daughter’s mouth read: “Oouch! Daddy don’t Bite so hard
Giggle giggle.”

 ¶7 At trial, Petitioner attempted to justify the contents of the first
drawing. He testified that prior to his incarceration he had watched a
documentary about cave dwellings with his daughter, with cave
drawings depicting naked people. Petitioner testified that his
daughter had laughed and asked him to draw a picture of himself
naked like the cave drawings.
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                         Opinion of the Court
  ¶8 With respect to the second drawing, Petitioner testified that
his daughter likes being tickled. So as part of her bedtime routine he
holds his daughter’s hands up in the air and nibbles all over her
stomach, while she laughs. To escape the tickling, his daughter rolls
over from her back to her stomach. At this point, Petitioner teases
her, saying “roll back over or I’m going to bite your butt cheek,” to
which his daughter responds by rolling back over. Petitioner
testified that he does not remember ever actually biting his daughter
during the routine. Rather, he makes an empty threat so that his
daughter will roll back over. Despite Petitioner’s explanation, the
jury returned a guilty verdict on both counts.

  ¶9 Petitioner appealed both convictions. His appeal challenged
only the sufficiency of the evidence—he did not raise an
independent First Amendment defense at trial or on appeal. We
affirmed, noting the substantial deference owed to the jury’s verdict
on a sufficiency of the evidence challenge. Butt then filed a petition
for certiorari with the United States Supreme Court. That petition
was denied.

  ¶10 Petitioner next filed a timely petition for post-conviction relief
in the district court, alleging ineffective assistance of counsel on two
principal grounds. First, Butt asserted that counsel failed to raise an
independent free speech defense under the federal or state
constitutions. Second, Butt claimed that counsel failed to assert a
defense based on federal and state constitutional protections of
parent-child communication.

  ¶11 In response to this petition, the State stipulated to the vacatur
of Petitioner’s conviction relating to his initial nude drawing. The
State also conceded that trial counsel’s performance was deficient in
failing to raise an independent First Amendment defense. But the
State moved for summary judgment with respect to the conviction
on the second drawing, arguing that Petitioner suffered no prejudice
because the First Amendment defense lacked merit. The State also
asserted that trial counsel’s failure to raise a parent-child
communication defense was neither deficient nor prejudicial because
no court has ever expressly adopted such a defense.

  ¶12 The district court agreed with the State and granted its motion
for summary judgment. The court held that Butt suffered no
prejudice because his First Amendment defense lacked merit. And it
concluded that the parent-child communication defense was too
“novel” to fault trial counsel for failing to raise it. On that basis the

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                          Opinion of the Court
court denied Butt’s petition for post-conviction relief. Petitioner then
filed this timely appeal.

                                     II
  ¶13 This case is before us on appeal from the denial of a petition
for post-conviction relief on a claim for ineffective assistance of trial
counsel. See UTAH CODE § 78B–9–106(3). To succeed on this claim,
Petitioner must show both that his counsel’s performance was
constitutionally deficient and that there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466
U.S. 668, 687, 694 (1984). The State acknowledges that trial counsel
was deficient in failing to raise a First Amendment defense. So the
only issue presented on appeal is whether Petitioner was prejudiced
by this failure.

  ¶14 The viability of Petitioner’s free speech defense turns on the
question whether the drawing qualifies as “obscenity.” If it does
then it falls outside the protection of the First Amendment, and the
assertion of a free speech defense would not have altered the
outcome of the trial.

  ¶15 That is the key question presented here. The State contends
that Petitioner’s drawing meets all of the elements of the doctrine
defining the category of materials deemed obscene as to minors.
Petitioner disagrees. His position is rooted in the notion that the
drawing does not “appeal[] to a prurient interest in sex.” Miller v.
California, 413 U.S. 15, 21 (1973); see Roth v. United States, 354 U.S. 476,
487 (1957).

  ¶16 The U.S. Supreme Court’s obscenity jurisprudence has a
“somewhat tortured history.” Miller, 413 U.S. at 20. And the
obscenity as to minors doctrine is a particularly underdeveloped
corner of this field. So we first provide background on the doctrinal
underpinnings regarding state authority to prohibit distribution of
obscenity as to minors. We then synthesize the standard for
determining whether material appeals to a minor’s prurient interest
in sex. And we conclude that under this standard, Petitioner’s




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                        Opinion of the Court
drawings did not appeal to the prurient interest in sex of his five-
year-old daughter.1

                                  A
  ¶17 The United States Constitution prohibits any law “abridging
the freedom of speech.” U.S. CONST. amend. I; see also Miller, 413 U.S.
at 19–20 (acknowledging that “the First Amendment [is] applicable
to the States through the Fourteenth Amendment”). This protection
extends to “[a]ll ideas having even the slightest redeeming social
importance—unorthodox ideas, controversial ideas, even ideas
hateful to the prevailing climate of opinion.” Roth, 354 U.S. at 484.
But even the sweeping protection of the First Amendment has limits.
“[I]mplicit in the history of the First Amendment is the rejection of
obscenity as utterly without redeeming social importance.” Id. And
in Roth v. United States, the court first identified this conclusion as
rooted in the original meaning of the First Amendment. See id. at
482–84. The Roth court observed that “[t]he guaranties of freedom of
expression in effect in 10 of the 14 states which by 1792 had ratified
the Constitution, gave no absolute protection for every utterance.”
Id. at 482 (footnote omitted). “As early as 1712,” the court noted,
“Massachusetts made it criminal to publish ‘any filthy, obscene, or
profane song, pamphlet, libel or mock sermon’ in imitation or
mimicking of religious services.” Id. at 482–83 (citation omitted).
Relying on this and other evidence in the historical record, the court
concluded that “[a]t the time of the adoption of the First
Amendment . . . there is sufficiently contemporaneous evidence to
show that obscenity . . . was outside the protection intended for
speech and press.” Id. at 483.

  ¶18 Yet the Roth court also asserted the prerogative of setting
standards for defining the category of obscenity. Roth endorsed the
following jury instructions given by the district court in that case:

       The test is not whether [the material] would arouse
       sexual desires or sexual impure thoughts in those
       comprising a particular segment of the community, the



   1 Because we reverse Petitioner’s conviction on this basis, we
decline to reach the merits of his arguments under the state
constitution. And we likewise do not address whether there is a
parent-child communication exception to the doctrine of obscenity as
to minors.

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                          Opinion of the Court
        young, the immature or the highly prudish or would
        leave another segment, the scientific or highly educated
        or the so-called worldly-wise and sophisticated
        indifferent and unmoved.
        The test in each case is the effect of the book, picture or
        publication considered as a whole, not upon any
        particular class, but upon all those whom it is likely to
        reach. In other words, you determine its impact upon
        the average person in the community. The books,
        pictures and circulars must be judged as a whole, in
        their entire context, and you are not to consider
        detached or separate portions in reaching a conclusion.
        You judge the circulars, pictures and publications
        which have been put in evidence by present-day
        standards of the community. You may ask yourselves
        does it offend the common conscience of the
        community by present-day standards.
        In this case, ladies and gentlemen of the jury, you and
        you alone are the exclusive judges of what the common
        conscience of the community is, and in determining
        that conscience you are to consider the community as a
        whole, young and old, educated and uneducated, the
        religious and the irreligious—men, women and
        children.
Id. at 490 (internal quotation marks omitted).
  ¶19 For years after the Roth decision, the court struggled to define
the proper scope of this formulation of the obscenity doctrine. See
Miller, 413 U.S. at 18–23. In Miller v. California, the court revisited
Roth and identified new standards to govern state obscenity statutes.
Miller first required states to adopt a statutory definition of obscene
material. See id. at 23–24. It then required states to incorporate the
following standards into their obscenity statutes:

        A state offense must . . . be limited to works which,
        taken as a whole, appeal to the prurient interest in sex,
        which portray sexual conduct in a patently offensive
        way, and which, taken as a whole, do not have serious
        literary, artistic, political, or scientific value.
Id. at 24.


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                         Opinion of the Court
  ¶20 This framework now governs the constitutionality of state
obscenity offenses covering distribution of materials to adults. Yet
there is ambiguity in the framework’s application to materials
distributed to minors. In the time between Roth and Miller, the court
held that states have authority to “adjust[] the definition of
obscenity” when regulating distribution of sexual materials to
minors. See Ginsberg v. New York, 390 U.S. 629, 638–39 (1968). Under
Ginsberg, states may assess the “appeal” of sexual materials “in
term[s] of the sexual interests” of minors. Id. (internal quotations
omitted). In light of its timing, the Ginsberg adjustment is understood
to relate to the original Roth standard. It remains unclear whether the
“obscenity as to minors” standard is to be adjusted in relation to this
standard alone or whether the adjustment also extends to the Miller
framework. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 n.10
(1975) (“We have not had occasion to decide what effect Miller will
have on the Ginsberg formulation.”).

  ¶21 Fortunately, Roth and Miller identify roughly equivalent
standards on the question presented here. Both require that “the
material taken as a whole appeal to a prurient interest in sex.” Miller,
413 U.S. at 21; Roth, 354 U.S. at 487, 489 (“Obscene material is
material which deals with sex in a manner appealing to prurient
interest.”). That is the central question to be decided here—whether
the material provided by Butt to his daughter can be said to appeal
to the prurient interest in sex of a minor under governing U.S.
Supreme Court precedent.

                                   B
  ¶22 Governing First Amendment jurisprudence does not provide
clear guidance on this issue. It is evident from U.S. Supreme Court
precedent that appeal to the prurient interest in sex is assessed in
terms of the “intended and probable recipient group.” See Mishkin v.
New York, 383 U.S. 502, 509 (1966). But to date, there is no clear
guidance on how this standard should apply when the target
audience is a minor of such young age that she may not have
developed a capacity for sexual arousal.2




   2 We acknowledge research indicating that children are born with
the capacity for sexual response. See, e.g., CHRISTIANE SANDERSON,
THE SEDUCTION OF CHILDREN 63 (2004). But absent exposure to
sexually explicit material or conditioning of sexual behavior, any

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                            BUTT v. STATE
                         Opinion of the Court
  ¶23 Petitioner asserts that a minor’s lack of capacity for sexual
arousal conclusively establishes that any material distributed to the
minor does not, and could not, appeal to the minor’s prurient
interest in sex. In support of this position, Petitioner cites the high
court’s repeated statements that “to be obscene ‘such expression
must be, in some significant way, erotic.’” See, e.g., Erznoznik, 422
U.S. at 213 n.10 (quoting Cohen v. California, 403 U.S. 15, 20 (1971)).

  ¶24 We do not think Petitioner’s approach is compatible with the
caselaw. The term erotic is used in the cases to describe the character
of a particular sexual depiction, not the capacity for sexual response
of the intended audience. When erotic appears in the caselaw, it is in
contradistinction to “a film containing a picture of a baby’s buttocks,
the nude body of a war victim, . . . scenes from a culture in which
nudity is indigenous,” “newsreel scenes of the opening of an art
exhibit,” or “shots of bathers on a beach.” Erznoznik, 422 U.S. at 213
& n.10. So the requirement that material be “erotic” is rooted in the
notion that not all nudity has sexual appeal. The question goes to the
character of the material in the context in which it is presented. It
does not require that the recipient be capable of experiencing sexual
arousal. To hold otherwise would preclude states from protecting a
class of particularly vulnerable and impressionable minors from
being exposed to sexually explicit materials. Such an interpretation is
inconsistent with U.S. Supreme Court precedent in this field.

  ¶25 This conclusion is bolstered by the court’s statements
regarding the underlying rationales for giving leeway to states to
adjust the obscenity-as-to-minors standard. In identifying the
circumstances in which a minor’s rights are not co-extensive with
those of adults, the court has said that states “may permissibly
determine that, at least in some precisely delineated areas, a child—
like someone in a captive audience—is not possessed of that full
capacity for individual choice which is the presupposition of First
Amendment guarantees.” Id. at 214 n.11 (quoting Ginsberg, 390 U.S.
at 649–50 (Stewart, J., concurring)). And “[i]n assessing whether a
minor has the requisite capacity for individual choice,” the court has
indicated that “the age of the minor is a significant factor.” Id. These
statements suggest that a state’s power to prohibit distribution of


sexual response in very young children “is innocent and discovery-
based, and does not consist of more adult type sexual activity.” See
id. at 67.

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                         Opinion of the Court
sexual material to minors is at its peak when the target audience for
the material is very young children. This is incompatible with the
notion that the court has pegged the prurient interest test to a
minor’s capacity for sexual arousal. If that were the inquiry, no
adjustment would be needed to protect young children from obscene
materials because no materials distributed to them could ever be
considered obscene as to minors.

  ¶26 The requirement that material be “erotic” is accordingly
directed only at the question of whether it is aimed in some
significant sense at appealing to a minor’s interest in sex—not at
whether a given minor or class of minors is likely to become sexually
aroused upon viewing it. A contrary rule would establish a
constitutional right to purvey material aimed at “grooming” a young
child as a target for future sexual activity. If Petitioner’s approach
were the law, then a sexual predator would have a right to show
erotic material to a young child with the goal of desensitizing the
child to the activity depicted therein—and with an eye toward future
sexual (and quite criminal) activity involving that child. Surely the
First Amendment does not establish such a right.

                                   C
  ¶27 For these reasons we reject Petitioner’s threshold argument.
Yet we nonetheless reverse—and uphold the viability of Petitioner’s
First Amendment defense—on other grounds.

  ¶28 Petitioner argues in the alternative that we should conduct an
independent review of the record to determine the merits of his First
Amendment defense. And he asks us to conclude that his drawing
was, as a factual matter, not overtly sexual or sexually suggestive.
We find this a close call but ultimately agree.

  ¶29 We agree, as a threshold matter, with the standard of review
proposed by Petitioner. The First Amendment defense at issue
involves a mixed determination of law and fact. And we have
recognized that “while it is true that judges possess no special
expertise that qualifies them to supervise the private morals of the
nation or to decide whether a particular speech or communication is
good or bad for a local community, judges are better equipped by
their training to appreciate and protect First Amendment values.”
City of St. George v. Turner, 860 P.2d 929, 932 (Utah 1993). With this in
mind, we have held that appellate courts are to conduct an
independent review of the record to judge the merits of a First
Amendment defense in an obscenity action, yielding no deference to
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                           Opinion of the Court
the jury’s verdict or the district court’s conclusions on underlying
mixed questions of law and fact. See id. (reviewing United States
Supreme Court precedent and concluding that on appeal from an
obscenity conviction the appellate court conducts independent
review of the jury’s determination to ensure the constitutional
standard was properly applied). We apply that standard here, and
reverse the district court’s decision concluding that Petitioner’s First
Amendment defense would not likely have succeeded if it had been
asserted at trial.

  ¶30 The jury returned a general verdict in Petitioner’s underlying
trial. It accordingly made no findings of fact. The same holds in the
district court proceedings on post-conviction review—that court
made no express findings of fact in its review of Petitioner’s First
Amendment defense. For those reasons we need not decide here
whether we owe any deference to a jury’s or lower court’s purely
factual findings. All we have before us are mixed findings—the
ultimate application of legal standards to the particular facts of this
case. And we have previously held that no deference is owing to
those sorts of findings. See id.

  ¶31 On independent review, we conclude that Petitioner’s
drawing was not aimed at appealing to an interest in sex. This
decision rests on our independent factual conclusion that the
drawing at issue is so rudimentary that taken as a whole—including
the context of Petitioner’s unrebutted testimony about his routine
with his daughter—it does not depict a sexual act. And we likewise
conclude that the drawing is not sexually suggestive.

  ¶32 An appeal to the prurient interest in sex of a five-year-old is
not a particularly high bar. A prurient interest in sex is one that is a
“shameful or morbid.” See, e.g., Brockett v. Spokane Arcades, Inc., 472
U.S. 491, 504 (1985). And in the context of obscenity as to minors, this
assessment is judged in light of the minor’s age. Cf. Erznoznik, 422
U.S. at 214 n.11 (“In assessing whether a minor has the requisite
capacity for individual choice the age of the minor is a significant
factor.”). While a five-year-old likely does not experience sexual
arousal,3 material can still generate a desire to engage in sexual
relations. Whether that desire stems from curiosity, conditioning, or



   3   But see supra note 2.

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                         Opinion of the Court
otherwise, it may cross the prurient interest line. Perhaps it could be
said that a five-year-old’s present desire to engage in any form of
sexual activity is prurient. At a minimum, however, it can be said
that this standard is met with respect to material that is aimed at
appealing to a young child’s interest in engaging in sexual activity
with a parent (or any adult); such activity is criminal, and thus easily
deemed “shameful or morbid.”

  ¶33 The State insists that this is precisely what Petitioner’s
drawing entices. In the State’s view, Petitioner’s drawing appeals to
the prurient interest in that it piques his daughter’s curiosity as to
sexual conduct that is shameful or morbid: It makes sexual conduct
that is shameful look positive, wholesome, or enticing. In the State’s
view the drawing does this in at least two ways. First, it is a
communication between father and daughter. The drawing is thus
imbued with the trust and good-will inherent in the parent-child
relationship, coloring shameful sexual conduct in a wholesome light.
Second, the depiction itself portrays Petitioner’s daughter laughing
and giggling while Petitioner, in the nude, bites his daughter’s
bottom.

  ¶34 The State’s premises are hard to quarrel with. If we viewed
the drawing as depicting sexual conduct between Petitioner and his
daughter we would have little difficulty agreeing with the State. But
on balance, and in light of the context given to the drawing by the
only testimony on the matter presented at trial, we view the drawing
differently. We do not view the drawing as portraying a sexual act.

  ¶35 Although the drawing clearly depicts Petitioner naked, it is
unclear whether it shows him biting his daughter or simply holding
her in the air and joking about doing so. It is equally unclear whether
his daughter is clothed or naked. Importantly, moreover, there is no
context in the record to support the State’s inferences that sexual
conduct is in fact being portrayed.

  ¶36 We likewise conclude that the intended audience, Petitioner’s
daughter, would not have perceived the drawings as sexually
suggestive. Context is particularly important in this area. And the
only contextual evidence in the record is Petitioner’s own testimony
regarding the cave drawing television program and his bedtime
routine with his daughter. We have little way of knowing whether
Petitioner’s testimony was truthful. Perhaps the State is right to be
skeptical about the explanation offered by Petitioner. But the
problem is that we have no contrary evidence before us—no

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                            BUTT v. STATE
                        Opinion of the Court
indication on the record to give a different context to the drawing,
and no basis for the conclusion that Petitioner’s explanation was
fabricated. We give little weight to Petitioner’s story. But we do give
it some weight, which together with his daughter’s young age leads
us to conclude that Petitioner’s daughter would not have seen the
drawing as sexually suggestive.

  ¶37 We conclude that the drawing is not sexual or sexually
suggestive, and accordingly does not appeal to a prurient interest in
sex.4 We reverse the district court on this basis and vacate
Petitioner’s conviction for dealing in harmful materials to minors.




   4  We caution that this is a close case. We conclude that on the
record before us, Petitioner’s drawing was so rudimentary that taken
as a whole it would not have appealed to any sexual interest of
Petitioner’s daughter. But context matters. And a contrary decision
might be merited in a case involving additional facts evidencing
double entendre, an older child more perceptive of sexual
suggestion, a context where the intended recipient might perceive a
sexual meaning, or a more explicit drawing.

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