SCOTT WEIGHT (14027)

ESPLIN | WEIGHT
Attorneys for Defendant
290 West Center Street
P.O. Box “L”
Provo, Utah 84603-0200
Telephone: 801-373-4912
Facsimile: 801-373-4964
Email: scott@esplinweight.com

IN THE FOURTH JUDICIAL DISTRICT COURT

IN AND FOR UTAH COUNTY, STATE OF UTAH

STATE OF UTAH,

Plaintiff, DEFENDANT’S MOTION TO DISMISS

and MEMORANDUM IN SUPPORT
vs.
Case: 221401310 FS
PAUL BRYANT,
Judge: POWELL
Defendant.

COMES NOW the defendant, Paul Bryant (“Bryant”) by and through his counsel of record

Scott Weight and, pursuant to UTAH CODE ANN. §77-27-21.7(1)(b), moves this Court to dismiss

Count 4 of the Information with prejudice for the reasoning that the elements cannot be met to

support the offense. This motion is based more particularly upon the following memorandum of

points and authorities:

STATEMENT OF FACTS

1. On June 22, 2022, the State filed an Information charging Bryant with COUNT 4: Violation

of Sex Offender Registry, a class A misdemeanor in violation of UTAH CODE ANN. §77-

27-21.7.

2. The Walk at Ivory Ridge (the “Community”) is a townhome complex where Bryant

resides and owns a townhome.

3. The Community consists of “common areas” containing two (2) parks.

4. Julie Ladle, counsel representing The Walk at Ivory Ridge Homeowner’s Association (the

“Association”) provided a letter (the “Letter”) clarifying that the “Common Areas in the

Community are not public. They are private and are owned and maintained by the

Association.” See, Julie Ladle Letter dated April 26, 2022, Re: The Walk at Ivory Ridge

Home Owners Association at p. 2 attached herein as “Exhibit “A.”

5. Section 1.13 of the Second Amended Declaration of Covenants, Conditions, and

Restrictions (the “CC&R’s) for the Community, state the following:

“Common Areas and Facilities” shall mean and refer to the real
and personal property for the common use and enjoyment of the
Owners not dedicated to the City or property of the Master
Association, or designated as Benefitted common Area and
specifically, shall include, but not be limited to the following: (a)
all Common Areas and Facilities designated as such the Plat,
including any area designated as open space; (b) all Project
improvements exclusive of the Unites; (c) all utility installations,
systems, and equipment connected with, or in any way related to,
the furnishing of utilities for the common use and/or for the
Common Areas and Facilities; (d) any road, street, lane, alley or cul-
de-sac within the Project not dedicated to the City or designated as
Benefitted Common Area; and (e) all other parts of the Project
necessary or convenient to its existence, maintenance, and safety, or
normally in common use, reserved for the exclusive use and
enjoyment of the Owners and their respective family members,
tenants, guests, and invitees, and all other parts of the Project
outside of the Units not dedicated to the City or the public or which
are necessary or convenient to the Project’s existence, maintenance,
and safety, or normally in common use. In accordance with the Plat,
the Common Areas and Facilities shall be owned by the Association.

Id.

6. The Letter further explained that “[c]ommon areas in HOAs are always private unless

owned or maintained by a city or other public entity. Common areas are for the use and

enjoyment of the members and their guests and are maintained using HOA assessments

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 assessed against the members. HOAs have the right to limit use of the common areas to

members and their guests.” Id.

7. The purpose of Ms. Ladle’s letter was to clarify with the Lehi Police Department any

misunderstanding they had in believing the park within the HOA is open to the public.

ARGUMENT

I. THE PLAIN LANGUAGE OF THE STATUTE INDICATES THAT THE

ELEMENTS HAVE NOT BEEN MET.

Under Utah Code section 77-27-21.7(2), a registered offender may not “be in any protected

area on foot or in or on any vehicle.” State v. Trotter, 2014 UT 17, ¶ 23, 330 P.3d 1267. Section

77-27-21.7(b) states the following: (i) “Protected area” means the premises occupied by: (A) any

licensed day care or preschool facility; (B) a swimming pool that is open to the public; (C) a public

or private primary or secondary school that is not on the grounds of a correctional facility; (D) a

community park that is open to the public; (E) a playground that is open to the public, including

those areas designed to provide space, recreational equipment, or other amenities intended to allow

children to engage in physical activity; and (F) expect as provided in Subsection (1)(b)(ii), an area

that is 1,000 feet or less from the residence of a victim of the sex offender if the sex offender is

subject to a victim requested restriction. See, UTAH CODE ANN. §77-27-21.7(1)(b)(i)(A)-(F).

Bryant contends that the Information should be dismissed with prejudice for the reasoning

that the Information does not fulfill the statutory requirements of UTAH CODE ANN. §77-27-

21.7(1)(b). Specifically, the evidence is lacking to support a restriction violation based upon the

protected areas specifically described in Subsections (A) – (F) of the statute.

While the sex offender restrictions include “protected areas” such as parks and

playgrounds, the statute is specific in that the parks and playgrounds be “open to the public.” See,

UTAH CODE ANN. §77-27-21.7(1)(b)(i)(D) – (E). Here, Bryant lives in a Community that has a

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common area with two (2) parks. According to Section 1.13 of the Community’s CC&R’s, the

common area and facilities are “reserved for the exclusive use and enjoyment of the Owners and

their respective family members, tenants, guests, and invitees.” See, Exhibit “A.” These common

areas are considered private and are “owned” and “maintained” by the Community’s Association.

Id. and UTAH CODE ANN. §57-8A-102(5) defining the term “common areas” as property that the

association: (a) owns; (b) maintains; (c) repairs’ or (d) administers.

Further, the two (2) parks are within the Community’s boundaries and are protected under

Utah law pursuant to the Private Property Protected Act. It is clear from the Community’s plat

map – attached as Exhibit “B” - that the parks and common areas within the boundaries of the

Community are “owned” by all the residents who reside in the Community as they pay a fee for

any “maintenance” upkeep and/or “repairs” that may be required. UTAH CODE ANN. §57-8A-

102(5). Utah County Recorder documents clearly designate the park as “private.” Exhibit D.

According to the Utah County Plat Map – attached as Exhibit “C” – the common area is directly

located near Bryant’s residence and is located between the Community’s homes. The Letter even

indicated that additional signs have been placed within the Community indicating the private

nature of the Community’s amenities. Thus, the common area in Bryant’s Community is “private”

and does not fit the statute requirements of being “open to the public.” See, UTAH CODE ANN.

§77-27-21.7(1)(b)(i)(A)-(F).

Given that this case is lacking in fulfilling the statutory requirements, the merits of the case

can be effectively resolved by being dismissed. A dismissal with prejudice would also prevent the

State from filing the violation again on the basis of where Bryant maintains the ability to “choose

where to live” causing a strain on judicial economy and resources for having to litigate the same

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thing over and over. See, Trotter, at ¶ 25. Thus, Bryant requests that this Court grant this motion

and order the above-captioned case be dismissed with prejudice for the reasons argued supra.

II. ALTERNATIVELY, THE STATUTORY CONSTRUCTION OF UTAH CODE

ANN. §77-27-21.7 INDICATES A DEFENDANT’S RESIDENCE SHOULD BE
AN EXCEPTION.

The statutory construction of UTAH CODE ANN. §77-27-21.7 dictates the Legislature did

not intend to make it criminal for a sex offender registrant to reside in a complex that contained a

park and/or playground. The crime contained in this code section says that a sex offender (defined

as an adult or juvenile required to register in accordance with Title 77, Chapter 41 of the code due

to conviction for any offense committed against a person younger than 18 years old) may not be

in a “protected area.” UTAH CODE ANN. §77-27-21.7(1)(c) and (3)(a). A “protected area” includes

a community park that is open to the public and “a playground that is open to the public, including

those areas designed to provide children space, recreational equipment, or other amenities intended

to allow children to engage in physical activity…” UTAH CODE ANN. §77-27-21.7(1)(b)(i)(D) and

(E). Exceptions are made where the victim is a member of the immediate family of the sex offender

and the terms of probation or parole allow them to reside in the same residence as the victim. UTAH

CODE ANN. §77-27-21.7(1)(b)(ii). Further, the Department of Corrections can implement victim

requested restrictions for those on the registry if the victim desires the sex offender be excluded

from the area where the victim resides. UTAH CODE ANN. §§77-27-21.7(1)(b)(i)(F) and (2). Further

exceptions are provided to allow a sex offender to be in a protected area to perform their parental

responsibilities, when the school is open and being used for public activity other than school-

related functions, and where a facility that operates as a day care or preschool is open to the public

for purposes other than the operation of those facilities. UTAH CODE ANN. §§77-27-21.7(3)(a).

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 The statute itself frequently defers to the terms of probation or parole defining any

additional boundaries or exceptions to boundaries for the movement of the offender. The Trotter

Court was called on to determine whether registration was akin to deportation in curtailing the

rights of the defendants involved. It found that it was not. In the process, the Utah Supreme Court

interpreted the statute at issue herein as it relates to the curtailing of such rights. It held that, “a sex

offender retains a good deal of freedom to conduct himself as he or she chooses.” Trotter, at ¶ 25.

“The offender’s movement and activity is relatively uninhibited by registration, with the exception

of certain protected areas under narrowly tailored circumstances.” Id. “The offender may go to

work, to school to the gym, to the grocery store, to the movie theater, to the post office, and to a

restaurant without violating any of the conditions set out by the registry laws.” Id. “For the most

part, the registered offender maintains the choice to live and work where he or she chooses.” Id.

(emphasis added). “Moreover, rather than permanently interfering with familial relationships …

the registry allows offenders to continue to live with their families despite registration.” Id. at ¶

26. “[E]ven if the offender’s parole does not allow contact with the victim and requires the offender

to live elsewhere, nothing in the statute itself prohibits visits and interactions with other family

members.” Id. “Moreover, the statute allows an offender to enter even protected areas on a very

limited basis to carry out necessary parental responsibilities.” Id.

Of note is that our Supreme Court indicted that Bryant maintains the choice to live where

he chooses, although qualified with “[f]or the most part.” So when would he not be able to do so?

When the offender’s parole or probation status dictates otherwise, such as when it requires him to

live elsewhere other than with the victim. Can an offender live near a community park or

playground that is open to the public? Yes, because he is not residing on “the premise occupied

by” it. UTAH CODE ANN. §§77-27-21.7(1)(b)(i). A crime does not occur until he is on the premises

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occupied by that specific park or playground, and only when it is open to the public. No one

“resides” on public property. See, e.g., Travelers/Aetna Ins. Co. v. Wilson, 2002 UT App 221, ¶

13, 51 P.3d 1288 (“Webster's Third International Dictionary defines ‘reside’ and ‘residing’ as ‘to

dwell permanently or continuously,’ ‘have a settled abode for a time,’ and ‘have one’s residence or

domicile.’ Webster's Third New International Dictionary 1931 (1986). In addition, Webster's

defines ‘resident’ as ‘dwelling or having an abode for a continued length of time.’”). As Trotter

somewhat recognized, UTAH CODE ANN. §§77-27-21.7 does not dictate where a registrant may or

may not reside. The Legislature’s construction of this statute, however, does address it by

differentiating “public” from “private.” It can only govern public spaces, not private ones unless

it is a valid victim’s requested restriction adopted into that individual person’s parole/probation

terms by the Department of Corrections—and this is standardly to restrict the registrant’s

movements around places the victim lives or frequents.

Additionally, there is no distance requirement under UTAH CODE ANN. §77-27-

21.7(1)(b)(i)(D) and (E). The Legislature placed a 1000-foot distance requirement only on the

victim’s residence or the victim’s requested restriction for other places they may frequent. UTAH

CODE ANN. §77-27-21.7(1)(b)(i)(F). Why? The answer is obvious. The victim could feel fear at

seeing the offender, and this distance ensures that they do not have to be subject to that. But there

is no similar level of fear for the general public who does not know the offender, and it is much

more minimized even for those who know of the offender’s past from knowledge of the registry

itself. Thus the Legislature specifically dictated that they were simply restricted from being

actually on “the premises occupied by” the park or playground. By use of “open to the public” for

both a park and playground, it indicated it was not regulating private areas and it was only

including areas that did not restrict their right to reside and live where they choose. The statutory

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construction indicates the Legislature left any restrictions on residence for registrants to the

Department of Corrections under terms of probation and parole, which is appropriate and where it

should remain.

The code also allows for exceptions for registrants to enter protected areas on a limited

basis to fulfill parental responsibilities. UTAH CODE ANN. §77-27-21.7(3)(a)(i). The Trotter Court

held to an extent that this was evidence the Legislature did not intend to infringe on their familial

relationships by the restrictions that were placed on them. It further recognized that there are

acceptable times where the limitations can be eased if necessary to ensure it does not infringe on

certain rights.

Since the Legislature did not opt to regulate the registrant’s residence, it did not include

residences in the crime listed under UTAH CODE ANN. §77-27-21.7(3). Even if Bryant or those like

him live in complexes with parks/playgrounds contained therein that a court defines as “public,”

unless the registrant is loitering or lingering on those premises, it does not rise to the crime charged

herein. The crime cannot simply be because the registrant lives nearby (since there is no distance

restriction), or because they might walk near the restricted premises in exercise of normal daily

activities in the coming-and-going from their own residence nearby. This would be an

unauthorized restriction unsupported by the code, not contained in precedent, and causing

notification issues with their own provisions of their parole or probation as to what is expected.

The Utah Legislature clearly did not intend to regulate a registrant’s residence, and this

Court should not allow the State to interpret the statute as though it had. The park/playground at

issue herein is private property but, even if it were considered public, Bryant’s residence in a

complex with a playground or park nearby is not on “the premises occupied by” his residence. He

is not committing a crime by choosing to live in the Community, particularly where there are no

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restrictions that have been requested by the victim nor the Department of Corrections regarding

such communities. Trotter, at ¶ 25.

CONCLUSION

WHEREFORE, based upon the foregoing Bryant requests that this Court dismiss the Count

4 with prejudice.

DATED this 24th day of October, 2022.

/s/ Scott Weight_____

SCOTT WEIGHT
Attorney for Defendant Paul Bryant

CERTIFICATE OF MAILING

I hereby certify that on this October 24, 2022, I electronically filed and caused to be served

via e-filing a true and correct copy of the above Defendant’s Motion to Dismiss and Memorandum

in Support to the following:

Tony Graf
Attorney for Plaintiff
/s/ Scott Weight