Summary
The Utah Supreme Court considered Eric Leon Butt, Jr.'s claim that trial counsel was ineffective for failing to assert a First Amendment defense to his convictions for dealing materials harmful to a minor. The court held that the drawings did not appeal to the prurient interest in sex of the intended five-year-old recipient and that the First Amendment defense would have succeeded. It reversed the denial of post-conviction relief and vacated the conviction at issue.
Topics
Practice areas
Questions Presented
- Whether Butt was prejudiced by trial counsel's conceded deficient performance in failing to assert a First Amendment defense to the charge of dealing materials harmful to a minor.
- Whether the second drawing was obscene as to the intended minor recipient because it appealed to the five-year-old child's prurient interest in sex.
- Whether the appellate court should independently review the mixed legal and factual determination underlying the First Amendment defense.
Holdings
- Butt was prejudiced by counsel's failure to assert a First Amendment defense because the defense would have succeeded as to the second drawing.
- Material is not obscene as to a minor unless, taken as a whole and in context, it appeals to the minor's prurient interest in sex; the second drawing did not satisfy that requirement.
- An appellate court independently reviews the mixed determination of whether material is obscene, without deference to the jury's verdict or the lower court's conclusions on the underlying mixed questions of law and fact.
Key quotations
“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.” (¶ 2)
“We conclude that the drawing is not sexual or sexually suggestive, and accordingly does not appeal to a prurient interest in sex.” (¶ 37)
Factual background
Butt sent two letters from jail to his wife and five-year-old daughter, each containing a rough drawing of Butt naked. The second drawing depicted Butt holding his daughter near his mouth while a speech bubble stated that her butt tasted good; Butt testified that the drawing reflected a nonsexual bedtime tickling routine and that the first drawing was inspired by cave drawings. The jury convicted Butt of two counts of dealing materials harmful to a minor, and trial counsel did not assert an independent First Amendment defense.
Procedural history
Butt was convicted of two counts of dealing materials harmful to a minor based on nude drawings sent in letters to his wife and five-year-old daughter while he was jailed. His direct appeal challenged only the sufficiency of the evidence, and the Utah Supreme Court affirmed; the United States Supreme Court denied certiorari. In post-conviction proceedings, the State conceded deficient performance concerning the failure to assert a First Amendment defense but argued that Butt suffered no prejudice. The district court granted summary judgment for the State and denied relief. The Utah Supreme Court reversed and vacated the conviction related to the second drawing.