State v. Reigelsperger

2017 UT App 101

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DONALD R. REIGELSPERGER,
Appellant.

Opinion
No. 20140773-CA
Filed June 22, 2017

Third District Court, Silver Summit Department
The Honorable Todd M. Shaughnessy
No. 131500027

Ann M. Taliaferro and John K. Johnson, Attorneys
for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

POHLMAN, Judge:

¶1 Donald R. Reigelsperger and his then-wife (Wife) were in
the midst of divorce proceedings when he surprised her at her
place of work, refused to allow her to leave, and engaged in
sexual conduct with her without her consent. Following a jury
trial, Reigelsperger was convicted of aggravated kidnapping and
four sexual assault offenses. He appeals, asserting that the trial
court should have suppressed the statements he made just prior
to his arrest and that, in several respects, the jury instructions
were plainly erroneous and resulted from ineffective assistance
of counsel. We affirm.
 State v. Reigelsperger

BACKGROUND

The Restraint and the Assaults

¶2 Reigelsperger and Wife had been married for more than
twenty-five years when, in October 2012, Wife informed him
that she was ending their relationship. 1 Reigelsperger moved
out, and from that time forward he and Wife had little contact.
As a general rule they communicated only as necessary for
purposes of their divorce proceedings and the property
management business they owned, and they informed one
another of the details of the business through text messages and
voicemails.

¶3 In January 2013, Wife went to a client’s home to complete
projects that had occupied her time for the past several days.
Reigelsperger had also worked at the home recently, but not
during the preceding few weeks, as Wife preferred that they not
be at a client’s home at the same time. When Wife arrived and
entered the home, she saw Reigelsperger. He was inside the
home, standing a few feet from the entryway, and was holding a
BB gun, which Wife mistook for a small handgun. 2

¶4 Reigelsperger grabbed Wife’s hand and tried to pull her
into the house, saying, “[Y]ou are coming with me.” Wife pulled
back and grabbed the doorjamb. The door swung shut on her

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” Mackin v. State, 2016 UT 47, ¶ 2 n.1, 387
P.3d 986 (citation and internal quotation marks omitted).

2. When police officers later arrived at the scene, they also
mistook the BB gun for a handgun. They later inspected the gun
and discovered that it was a BB gun.

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 State v. Reigelsperger

finger, she screamed, and Reigelsperger released his grip. Once
her finger was free, Wife stood in the entryway, crying. She
pleaded with Reigelsperger to let her go, but she did not attempt
to open the door again. With the gun still in hand, Reigelsperger
told Wife she had to stay, and if she tried to escape, he might hit
her “over the head with the gun” or “push [her] to the ground
and hurt [her].”

¶5 Reigelsperger directed Wife to move to the large living
area, where Wife saw a ladder and “a rope hanging from the
high wooden ceiling rafter with a noose on it.” Reigelsperger
told Wife that she “need[ed] to sit in a chair and watch [him]
hang [himself]” and that he might rape her. Reigelsperger also
directed Wife to undress and get into a hot tub, which was in the
living area. Wife did so, removing all of her clothing except her
underwear. Reigelsperger, also wearing his underwear, followed
her into the water. Initially, Wife did not know where
Reigelsperger had put the gun, but she subsequently saw it
“several feet away on the deck.”

¶6 Reigelsperger pulled Wife toward him and told her to kiss
him, but she turned her head. Reigelsperger fondled Wife’s
breasts until he pinched them and Wife said, “[O]uch.”
Reigelsperger touched Wife’s genitals and also penetrated her
anus before moving Wife to a bench inside the hot tub and
instructing her to perform oral sex on him. She complied. Wife
did not attempt to grab the gun, which was currently out of her
and Reigelsperger’s reach.

¶7 After Wife performed oral sex on Reigelsperger, he
became “very emotional” and told her she could leave. Wife
dressed, unintentionally putting her clothes on “inside out and
backwards,” and Reigelsperger commented, “[Y]ou had better
hurry before I change my mind.” Wife went to her car and left.

¶8 Once a short distance away, Wife called 911. Crying
throughout the call, Wife reported that her “husband ha[d] a

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gun” and “want[ed] to kill himself.” When asked to repeat the
purpose of her call, Wife again said, “My husband[] . . . has a
gun and he said he’s going to kill himself or hang himself and he
just held me at [gunpoint] for an hour.” The call was brief, and
Wife did not go into detail regarding what had occurred at the
home nor did she report being sexually assaulted.

¶9 Wife went to the police station where she reported being
sexually assaulted, was interviewed, and was then escorted to a
local hospital. At the hospital Wife underwent a physical exam,
which included a swab of the inside of her mouth. Wife
struggled to “really communicate” with the examining nurse,
but again reported what had occurred between herself and
Reigelsperger.

¶10 Meanwhile, back at the house, Reigelsperger had been
attempting to reach Wife. Almost immediately after she left,
Reigelsperger called Wife and left a voicemail message, saying,
“[Y]ou’re already on the phone. I hope [you’re] not calling
someone to make this situation escalated. I just committed a
felony.”

¶11 Shortly thereafter, police officers arrived at the house and
took Reigelsperger into custody, not under suspicion of
committing a crime, but based on the risk that he was “going to
harm himself or someone else.” Reigelsperger was taken in an
ambulance to a nearby hospital. A police officer followed and,
upon arriving at the hospital, filled out forms regarding
Reigelsperger’s involuntary admittance. The officer reported a
substantial risk that Reigelsperger would harm himself unless
taken into protective custody, and the officer indicated that he
“wanted to be notified prior to the patient’s discharge.”
Reigelsperger was subsequently transferred to the University
Neuropsychiatric Institute (UNI).

¶12 That night Reigelsperger left another voicemail message
for Wife, stating, “I’m sorry for my actions,” “I treated you so

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 State v. Reigelsperger

poorly,” and “I’m so very sorry for offending you and intruding
on your sexuality.” Reigelsperger also sent a text message to
another family member, stating, “I made [Wife] get in the hot
tub with me, and I made her kiss me,” and “I acted
inappropriately towards her.”

The Interview at UNI and Other Statements by Reigelsperger

¶13 Reigelsperger spent several days at UNI. Five days after
he was admitted, two police detectives went to UNI to ask
Reigelsperger for a DNA sample. One of the detectives
(Detective) had been in “daily contact” with a UNI staff member,
“hop[ing]” to be “told when [Reigelsperger] was going to be
released” so she could arrest him at that time. Detective
apparently believed, based on her communications with UNI
staff, that Reigelsperger would be released the following day.

¶14 Although Detective brought a warrant for Reigelsperger’s
arrest, UNI staff initially refused to provide access to
Reigelsperger or even to acknowledge his presence there. But the
detectives were persistent and told UNI staff that they would be
taking Reigelsperger into custody that day. They reached an
understanding with UNI staff that they would obtain a DNA
sample from Reigelsperger if he consented, and they would then
arrest Reigelsperger and remove him from UNI.

¶15 The detectives were escorted to a fairly large room with a
couch flanked by two chairs. The detectives sat down in the
chairs and waited until UNI staff brought Reigelsperger to the
room. Detective was not in uniform and her badge was not
visible. The detective who accompanied her was wearing his
informal police uniform and his badge and was carrying
handcuffs. Both were unarmed.

¶16 Reigelsperger arrived and sat down on the couch. He was
not restrained by the detectives or by UNI staff, and he was not
“hooked up to any sort of medical equipment.” Reigelsperger

20140773-CA 5 2017 UT App 101
 State v. Reigelsperger

was not told that he was under arrest, that the detectives had a
warrant for his arrest, or that the detectives planned to remove
him from UNI. Reigelsperger also was not told that he was a
suspect in a crime, although he had learned from other sources
that Wife had contacted the police and reported what had
occurred.

¶17 Detective asked if Reigelsperger would provide a DNA
sample, and he provided one. Reigelsperger then began talking
as though he “wanted to get his side of the story out.” Detective
stopped him and informed him of at least some of his Miranda
rights, but the recitation and explanation of Reigelsperger’s
Miranda rights were not recorded because the detectives’ audio
recorder had not yet been turned on.

¶18 Detective also provided Reigelsperger with a form
entitled “Miranda Waiver.” The form provided: “You have the
right to remain silent. Anything you say may be used against
you in court. You have the right [to] an attorney. If you cannot
afford an attorney, one will be appointed free of charge.” The
form contained the additional language, “Do you understand
these rights? Will you explain your side of the story? If so, please
sign.”

¶19 After Detective provided Reigelsperger with the form and
discussed it with him, the audio recorder was turned on.
Detective asked Reigelsperger if he wanted to keep talking with
her, and Reigelsperger immediately indicated that he did and
signed the form. He began telling the detectives about the day in
question. Detective asked Reigelsperger several questions, which
were largely about his divorce and living situation, his intent in
going to the client’s home on the day in question, and the events
that occurred there. Reigelsperger talked at length without
indicating any desire to cease speaking with the detectives or to
stop answering their questions. The recorded interview lasted
less than thirty minutes.

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 State v. Reigelsperger

¶20 During the interview, Reigelsperger said his plan was to
harm himself and for Wife to find him, but he had “no idea”
Wife would be at the house that day. He recounted that when
Wife arrived, she “freaked out,” and he “[g]rabbed her by [the]
arm.” When asked if Wife had said “she wanted to leave, like
leave the house” or “[g]et away from [him],” Reigelsperger
replied, “I think she might [have], yes.”

¶21 Reigelsperger also recalled telling Wife that he wanted
her to get into the hot tub, but she said, “No, I’m not going to,”
and he responded, “Oh yes, you are.” Reigelsperger said he
asked Wife for a kiss and “one last jacuzzi,” but she said, “I don’t
feel like doing it and you’re not going to make me,” and he
replied, “Oh yes you are.” Reigelsperger reported that he
“grabbed [Wife] and held her and kissed her” while they were in
the hot tub, and she “pushed [him] away and went and [cried] in
the corner.” When asked whether further sexual contact
occurred, Reigelsperger stated that Wife did not perform oral sex
on him.

¶22 At the conclusion of the interview, Detective informed
Reigelsperger that he was going to be arrested. The detectives
then handcuffed Reigelsperger and removed him from UNI.

¶23 During the weeks following his arrest, Reigelsperger
spoke with a neighbor several times. In those conversations,
which were recorded, Reigelsperger said he had held Wife
“against her will . . . [s]o . . . [he was] definitely going to get
something,” and he “held [Wife] and . . . kissed her” but “[t]hat[]
[was] it.”

The Charges and the Evidence at Trial

¶24 Reigelsperger was charged with five first degree felonies:
one count of aggravated kidnapping, see Utah Code Ann. § 76-5-

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 State v. Reigelsperger

302 (LexisNexis 2012), and four counts of aggravated sexual
assault, see id. § 76-5-405. 3 The charges were framed in the
statutory language defining aggravated kidnapping and
aggravated sexual assault, and every type of conduct identified
in those statutes was alleged, as well as a brief statement of facts.
The prosecution proceeded under the theory that four separate
sexual assaults had occurred: (1) nonconsensual penetration of
Wife’s genital or anal opening (object rape, count II);
(2) nonconsensual genital-to-mouth sexual act (forcible sodomy,
count III); (3) nonconsensual touching of Wife’s breast (forcible
sexual abuse, count IV); and (4) nonconsensual touching of
Wife’s genitals (forcible sexual abuse, count V).

¶25 Before the case went to trial, Reigelsperger moved to
suppress the statements he had made during his interview at
UNI, asserting that the statements were elicited during custodial
interrogation without a valid waiver of Reigelsperger’s Miranda
rights. The trial court denied the motion, concluding that
Reigelsperger had not been in custody for Miranda purposes at
that time. The court found that Reigelsperger was not in police
custody in the days leading up to his interview, and after
considering the site of the interrogation, whether the
investigation focused on Reigelsperger, whether objective indicia
of arrest were present, and the length and form of the
interrogation, the court concluded that the attendant
circumstances did not render the interview a custodial
interrogation.

¶26 In support of its ruling, the trial court found, among other
things, that the detectives did not misstate the facts, did not
misrepresent the “state of the investigation,” and did not
mislead Reigelsperger “in any way”; and that Reigelsperger

3. Reigelsperger was also charged with one count of aggravated
burglary, see Utah Code Ann. § 76-6-203 (LexisNexis 2012), but
that charge was not pursued at trial.

20140773-CA 8 2017 UT App 101
 State v. Reigelsperger

“voluntarily participated,” “seemed rather eager to tell his side
of the story,” was asked “very open ended” questions, and was
not “coerced in any way to make the statements that he did.”
The court also found that the recorded portion of the interview
constituted “the entire substance” of the interrogation, and the
detectives’ failure to record their earlier interactions with
Reigelsperger appeared to be accidental rather than intentional.

¶27 At trial the prosecution relied on Wife’s testimony; expert
testimony that the swab from Wife’s mouth contained DNA
from seminal fluid that matched Reigelsperger’s DNA; and the
examining nurse’s observations and interactions with Wife, from
which the nurse concluded that Wife had experienced a
traumatic event. The prosecution also introduced, among other
evidence, the recording of Wife’s 911 call; testimony from family
members regarding Wife’s appearance, conduct, and mental and
emotional state following her encounter with Reigelsperger;
statements Reigelsperger made to the detectives at UNI;
Reigelsperger’s conversations with his neighbor; and
Reigelsperger’s voicemail and text messages to Wife and another
family member.

¶28 Defense counsel attempted to discredit Wife by, for
example, pointing out inconsistencies between Wife’s trial
testimony and her earlier statements, including inconsistencies
as to whether she and Reigelsperger removed all of their
clothing before stepping into the hot tub, inconsistencies as to
whether Reigelsperger attempted to have sexual intercourse
with her, and the omission in Wife’s earlier statements of
Reigelsperger’s threat to harm her if she tried to escape. Defense
counsel also attempted to discredit Wife’s testimony that she
mistook the BB gun for a handgun and that she was “completely
cooperative” with Reigelsperger because “the fact that there was
a gun kept [her] from doing any kind of resisting, any kind of
provoking.”

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 State v. Reigelsperger

¶29 In addition, Reigelsperger testified and presented a
different account of the events in question. He testified that he
went to the client’s home to gather and put away tools. He
brought the BB gun to the home to shoot rodents, and he placed
the BB gun and extra ammunition on the pool table. He then
began crying and decided to end his life. He brought in a ladder,
set up the noose, and put it around his neck. At that instant, his
dog went to the entryway and started barking. Reigelsperger
saw Wife’s car and watched as she made her way to the
entrance, opened the door, and caught her finger in it. Knowing
“there[] [was] no way that [Wife] would want to see [him],”
Reigelsperger nevertheless went to the entryway, and she
“freaked” upon seeing him. He “push[ed] the door harder on
[Wife’s] finger so it would” unlatch, and when her finger was
free, she “went berserk.”

¶30 According to Reigelsperger, Wife said “things that
weren’t really nice” but never told him to leave. He tried to hug
her but she pushed him away, indicating that she wanted him to
“get away from [her].” Wife saw the gun on the pool table, and
Reigelsperger explained that it was a BB gun he had brought to
kill rodents. Wife then saw the noose and ladder, and she began
screaming. Wife indicated that she wanted to leave, but
Reigelsperger told her, “no, [she] ha[d] to come in” and answer
questions, such as whether she left him “for another man.”

¶31 Reigelsperger asked Wife if she would get into the hot
tub, and she said she did not want to, but Reigelsperger pleaded
with her to do so. Wife stepped into the hot tub wearing only her
underwear. Reigelsperger left to use the restroom, then returned
and joined Wife in the hot tub. The BB gun was still on the pool
table, where it remained until after Wife had left the house.

¶32 Reigelsperger asked if he could have “one last kiss and
hug,” and Wife responded, “[N]o,” but when Reigelsperger
walked toward her, Wife wrapped her legs around him and sat
in his lap. Reigelsperger tried to kiss her, but she turned her

20140773-CA 10 2017 UT App 101
 State v. Reigelsperger

head. He touched Wife “between her legs” and penetrated her
anus, but stopped when Wife said, “[O]uch.” Reigelsperger
kissed Wife, and she briefly kissed him back. He felt Wife’s
breasts until she said, “[S]top.” Reigelsperger stood up, and Wife
reached down and squeezed his penis. He turned toward her,
putting his penis “toward[] her mouth” without saying
anything. Wife performed oral sex on him, and afterward
Reigelsperger told her she “probably should go.” Wife then
dressed and left.

¶33 Reigelsperger dressed and waited for the police to arrive.
When they did, an officer escorted him to an ambulance, stating
that the police were there to take care of him. The officer
handcuffed Reigelsperger, “just for [Reigelsperger’s] safety,”
and told Reigelsperger he was not under arrest. Reigelsperger
was then taken to the hospital.

¶34 When asked whether all that happened between himself
and Wife was consensual, Reigelsperger responded, “I don’t
know. [Wife] didn’t jump right on it, no. She didn’t say yes, let’s
have sex, or—but she never pushed me away, ever. . . . I guess
she could’ve punched me in the face and pushed me away, yeah.
So it probably was consensual.”

The Verdict

¶35 The jury convicted Reigelsperger of aggravated
kidnapping but did not convict him of the four aggravated
sexual assault charges. Rather, the jury convicted Reigelsperger
of four lesser included offenses: object rape, forcible sodomy,
and two counts of forcible sexual abuse. Reigelsperger appeals.

ISSUES AND STANDARDS OF REVIEW

¶36 Raising several challenges to the proceedings below,
Reigelsperger first asserts that he was given an incomplete

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 State v. Reigelsperger

Miranda warning and therefore the trial court should have
suppressed the statements he made during his interview at UNI.
When reviewing the denial of a motion to suppress, we review
the trial court’s factual findings for clear error, State v. Worwood,
2007 UT 47, ¶ 12, 164 P.3d 397, and its legal conclusions for
correctness, State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650. A trial
court’s ultimate determination that a defendant was not subject
to custodial interrogation and thus was not entitled to a Miranda
warning is a mixed question of law and fact that we also review
for correctness. See State v. Levin, 2006 UT 50, ¶¶ 32, 46, 144 P.3d
1096.

¶37 Second, Reigelsperger asserts that, due to defects in the
jury instructions, he was convicted of the four sexual assault
offenses “based upon facts and theories” of nonconsent and
specific intent “for which [he] was not charged and/or bound
over at preliminary hearing.” Third, Reigelsperger asserts the
jury was not adequately instructed that the State was required to
prove he possessed (1) a culpable mens rea as to Wife’s
nonconsent, for purposes of the sexual assault offenses; and
(2) intent or knowledge with respect to the elements of the
aggravated kidnapping offense.

¶38 These alleged defects in the jury instructions were not
brought to the trial court’s attention, and “[a]s a general rule,
claims not raised before the trial court may not be raised on
appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
Reigelsperger, however, asserts these errors under the
exceptions for plain error and ineffective assistance of counsel.
These “doctrines serve as exceptions to our preservation rules,
permitting a court to review errors that would otherwise be
forfeited.” State v. Bond, 2015 UT 88, ¶ 46, 361 P.3d 104.

¶39 When a party fails to object to a jury instruction in the
trial court, “the instruction may not be assigned as error except
to avoid a manifest injustice,” Utah R. Crim. P. 19(e), and in most
circumstances manifest injustice is synonymous with plain error,

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 State v. Reigelsperger

State v. Powell, 2007 UT 9, ¶¶ 11 & n.2, 17, 154 P.3d 788. To
succeed on a claim of plain error, Reigelsperger must establish
harmful error that should have been obvious to the trial court.
See Holgate, 2000 UT 74, ¶ 13. To establish ineffective assistance
of counsel, Reigelsperger must show that counsel’s performance
was deficient and prejudicial. See Strickland v. Washington, 466
U.S. 668, 687 (1984).

ANALYSIS

I. The Motion to Suppress

¶40 Reigelsperger asserts that the trial court erroneously
denied his motion to suppress the statements he made during
his interview at UNI. He argues that the statements resulted
from custodial interrogation and were given following an
inadequate Miranda warning.

¶41 Under the Fifth Amendment to the United States
Constitution, “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. The
Fourteenth Amendment incorporates this constitutional
protection and applies it to the states, including the procedural
safeguards initially set forth in Miranda v. Arizona, 384 U.S. 436
(1966), which require that certain warnings be given prior to
custodial interrogation if the resulting evidence is to “be used
against [the accused].” Id. at 463–67, 478–79; accord Dickerson v.
United States, 530 U.S. 428, 432, 434–35 (2000). 4 “Statements

4. In his briefing on appeal, Reigelsperger mentions the Utah
Constitution but does not further address it. We will not
undertake a unique state constitutional analysis of our own
accord. See State v. Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397.
Because Reigelsperger relies exclusively on federal constitutional
(continued…)

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 State v. Reigelsperger

elicited in noncompliance with this rule may not be admitted for
certain purposes in a criminal trial.” Stansbury v. California, 511
U.S. 318, 322 (1994) (per curiam).

¶42 In Miranda the Supreme Court examined the pressures on
individuals cut off from family, friends, and familiarity and
subjected to interrogation by officers practicing psychological
manipulation. 384 U.S. at 442–58. The cases before the Court
involved “incommunicado interrogation . . . in a police-
dominated atmosphere,” which resulted in incriminating
statements made “without full warnings of constitutional
rights.” Id. at 445. Noting that the compelling nature of such an
environment may prompt statements that do not reflect an
individual’s “independent decision” to speak, id. at 465, the
Court held that the constitutional protection against self-
incrimination applies to coercive situations in which persons are
“questioned while in custody or otherwise deprived of [their]
freedom of action in any significant way,” id. at 445, 467.

¶43 In the half-century following Miranda, the Supreme Court
has refined its analysis with regard to the coercion and “in
custody or otherwise deprived of . . . freedom” aspects of its
decision. See, e.g., Howes v. Fields, 565 U.S. 499, 508–17 (2012);
J.D.B. v. North Carolina, 564 U.S. 261, 268–81 (2011); Yarborough v.
Alvarado, 541 U.S. 652, 660–69 (2004). As interpreted, Miranda
applies only when “there has been such a restriction on a
person’s freedom as to render him ‘in custody,’” Oregon v.
Mathiason, 429 U.S. 492, 495 (1977) (per curiam), and “custody” is
not synonymous with supervision or control but is “a term of art
that specifies circumstances that are thought generally to present
a serious danger of coercion,” Howes, 565 U.S. at 508–09.

(…continued)
law in making his claim, we likewise apply only federal
constitutional law in resolving it.

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 State v. Reigelsperger

¶44 Thus, while every “‘interview of one suspected of a crime
by a police officer will have coercive aspects to it, simply by
virtue of the fact that the police officer is part of a law
enforcement system which may ultimately cause the suspect to
be charged with a crime,’” that baseline level of compulsion does
not trigger the requirement of a Miranda warning. See State v.
Mirquet, 914 P.2d 1144, 1148 (Utah 1996) (quoting Mathiason, 429
U.S. at 495). In addition, being temporarily detained or even
incarcerated at the time of questioning does not necessarily
mean that a person must be apprised of his or her Miranda rights
prior to questioning. See Howes, 565 U.S. at 512 (“Service of a
term of imprisonment, without more, is not enough to constitute
Miranda custody.”); Berkemer v. McCarty, 468 U.S. 420, 440 (1984)
(“[P]ersons temporarily detained pursuant to [ordinary traffic]
stops are not ‘in custody’ for the purposes of Miranda.”). An
individual’s freedom of movement must be sufficiently
curtailed, and sufficient coercive pressure must exist, to render a
person in custody for Miranda purposes. See Howes, 565 U.S. at
508–09.

¶45 When determining “whether a person is in custody in this
sense, the initial step is to ascertain whether, in light of the
objective circumstances of the interrogation, a reasonable person
would have felt he or she was not at liberty to terminate the
interrogation and leave.” Id. at 509 (brackets, citations, and
internal quotation marks omitted). “[H]ow a suspect would have
gauge[d] his freedom of movement” is determined by examining
“all of the circumstances surrounding the interrogation.” Id.
(second alteration in original) (citation and internal quotation
marks omitted). Because the inquiry is an objective one, it does
not turn on the “actual mindset” or “idiosyncrasies of [the]
individual suspect” or on the “subjective views harbored by . . .
the interrogating officers or the person being questioned.” J.D.B.,
564 U.S. at 271 (citations and internal quotation marks omitted);
accord Stansbury, 511 U.S. at 323. If the court concludes that the
person’s freedom of movement was sufficiently curtailed, the

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court then asks “whether the relevant environment present[ed]
the same inherently coercive pressures as the type of station
house questioning at issue in Miranda.” Howes, 565 U.S. at 509.

¶46 Over thirty years ago, the Utah Supreme Court identified
four factors (the Carner factors) “that inform this analysis: (1) the
site of interrogation; (2) whether the investigation focused on the
accused; (3) whether the objective indicia of arrest were present;
and (4) the length and form of interrogation.” State v. Fuller, 2014
UT 29, ¶ 44, 332 P.3d 937 (citation and internal quotation marks
omitted). More recently, the United States Supreme Court noted
several factors it has considered relevant to the custody analysis,
which largely overlap those identified in Salt Lake City v. Carner,
664 P.2d 1168 (Utah 1983): the location and duration of the
questioning, the statements made during the interview, the
presence or absence of physical restraints, and whether the
interviewee was released at the end of the questioning. Howes,
565 U.S. at 509.

¶47 These factors guide our analysis, in the context of the
Supreme Court’s refusal to “demarcate a limited set of relevant
circumstances” that control the inquiry and to instead “require[]
police officers and courts to examine all of the circumstances
surrounding the interrogation.” J.D.B., 564 U.S. at 270–71
(citation and internal quotation marks omitted); see also State v.
Maestas, 2012 UT App 53, ¶ 50, 272 P.3d 769 (stating that while
the Carner factors “aid” in the custody analysis, “[n]o one factor
is dispositive,” and the custody determination depends on “the
totality of the circumstances”). We thus consider the Carner
factors, 5 as well as any additional factors indicated by the

5. The Utah Supreme Court has not indicated, and the parties
have not argued, that the Carner factors should be retooled in
light of evolving Supreme Court case law. Because we are
required to consider all relevant circumstances, see Howes v.
Fields, 565 U.S. 499, 509 (2012), and the Utah Supreme Court has
(continued…)

20140773-CA 16 2017 UT App 101
 State v. Reigelsperger

Supreme Court, within the broader contextual picture in
determining whether the environment was “coercive enough to
be custodial.” Cf. United States v. Pelletier, 700 F.3d 1109, 1115 (7th
Cir. 2012). And when, as a background matter, a person is
subject to extensive, state-imposed restrictions on freedom of
movement, the custody analysis should address “all of the
features of the interrogation,” including “the manner in which
the interrogation [was] conducted.” Cf. Howes, 565 U.S. at 514
(addressing the custody issue under circumstances involving the
questioning of a person serving a term of imprisonment).

¶48 We note that the record is somewhat unclear with regard
to Reigelsperger’s status at UNI at the time his statements were
made. Initially, Reigelsperger was taken by ambulance to a
nearby hospital, where he was involuntarily admitted.
Reigelsperger was subsequently transferred to UNI, but the
record is silent as to the timing and process of that transfer and
the conditions of Reigelsperger’s stay, including whether he
remained there involuntarily.

¶49 The parties do not address these questions, and they are
not dispositive. For purposes of our analysis, we view
Reigelsperger’s status at UNI in the light most supportive of his
claim that he was in custody for Miranda purposes. We therefore
assume that, at the time his statements were made, Reigelsperger
was subject to the extensive curtailment of freedom of action that
is consistent with involuntary commitment for mental health
treatment. We also assume that those restraints were State-
imposed, emanating not simply from the provision of treatment
but from the State’s power to confine an individual to a

(…continued)
recently identified the Carner factors as relevant, State v. Fuller,
2014 UT 29, ¶ 44, 332 P.3d 937, we consider each Carner factor in
determining whether Reigelsperger was in custody.

20140773-CA 17 2017 UT App 101
 State v. Reigelsperger

treatment facility. Even with the benefit of these assumptions,
however, Reigelsperger’s challenge fails, for he was not in
custody for Miranda purposes when he spoke with the detectives
at UNI.

¶50 Reigelsperger asserts that the police involvement in his
admission to the hospital and the detectives’ attempts to monitor
his status thereafter demonstrate that he was in Miranda custody,
particularly when viewed in combination with the other
circumstances attendant to his questioning. Reigelsperger first
challenges the trial court’s findings (and several subsidiary
findings) that the police detectives did not effectively oversee his
stay at UNI and that he was not in their custody prior to the
interview. Reigelsperger claims the detectives were in “complete
control” of his situation because, among other things, the
detectives expected to know of his release in advance and an
officer was stationed at the hospital until “it was determined that
[Reigelsperger] would not be released except to law
enforcement.” (Internal quotation marks omitted.)

¶51 But Reigelsperger has not adequately supported these
claims. Reigelsperger’s last assertion lacks any supporting
citation to evidence and does not appear to be borne out by the
record. In addition, Reigelsperger does not marshal, counter, or
even address the main evidence in support of the trial court’s
finding that he was not in police custody prior to the interview—
specifically, the lack of police oversight of Reigelsperger’s
treatment; the obstacles the detectives faced in obtaining
information from UNI; UNI’s reluctance to allow the detectives
to meet with Reigelsperger or even to acknowledge his presence
there; and Detective’s statements that while she “hope[d]” UNI
would alert her before releasing Reigelsperger, she did not know
whether that would occur. If a party fails to marshal the
evidence in support of a challenged finding, the party “will
almost certainly fail to carry its burden of persuasion on appeal,”
State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645, and Reigelsperger
has not shown the trial court’s findings to be clearly erroneous.

20140773-CA 18 2017 UT App 101
 State v. Reigelsperger

¶52 Reigelsperger nevertheless relies on language from a
Ninth Circuit Court of Appeals opinion, which suggests that if
police “‘took a criminal suspect to the hospital from the scene of
a crime, monitored the patient’s stay, stationed themselves
outside the door, arranged an extended treatment schedule with
the doctors, or [engaged in] some combination of these’” actions,
the suspect could be in custody for Miranda purposes. (Quoting
United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985).)
Reigelsperger portrays his situation as a continuous period of
police oversight and restraint, beginning with his being taken to
the hospital and ending with his arrest at UNI, and argues that
his case is sufficiently analogous to the Ninth Circuit’s
hypothetical situation to constitute custody. We disagree.

¶53 Reigelsperger was taken by police to the hospital, but not
as a suspect. To the extent his freedom of movement was
subsequently constrained as a general matter, it was due to his
involuntary commitment for mental health treatment—not due
to his potential culpability for conduct toward Wife. And as set
forth below, those general constraints, coupled with any
additional restraints or pressures resulting from the detectives’
investigation, were not sufficiently restrictive and coercive to
render Reigelsperger in custody for purposes of Miranda. 6

6. Reigelsperger briefly asserts that a “compromised state of
mind” led him to view the entire process as one of custodial
police restraint, but the circumstances do not support that claim.
As far as Reigelsperger’s state of mind, the trial court found that
Reigelsperger “voluntarily participated” and was not “coerced
in any way to make the statements that he did,” the recording
provides no indication that Reigelsperger was not competently
participating, and Reigelsperger has not challenged the court’s
findings or demonstrated that medications or treatment affected
his faculties. In addition, although Reigelsperger repeatedly
(continued…)

20140773-CA 19 2017 UT App 101
 State v. Reigelsperger

¶54 On the day of the interview, Reigelsperger was escorted
by “medical personnel” from his present location at UNI to “a
large . . . waiting area” where he sat down on a couch between
the two chairs in which the detectives were waiting. With regard
to the location itself, Reigelsperger’s transfer to the waiting area
did not involve the “shock that very often accompanies arrest”
when a person is “whisked [away]” from his normal
surroundings to a “police-dominated atmosphere.” Cf. Howes v.
Fields, 565 U.S. 499, 511 (2012) (citation and internal quotation
marks omitted). Reigelsperger also had no reason to believe that
the answers he provided to the detectives’ questions might result
in his being released and allowed to go home. Cf. id. (noting the
concern that an individual “arrested and taken to a station house
for interrogation” might be “lured into speaking by a longing for
prompt release”). The waiting area at UNI was thus not so
restrictive and coercive as to constitute a per se custodial
situation. Cf. id. at 511–12 (concluding that when a person is
questioned on prison grounds, while serving a term of
imprisonment, those circumstances are not alone dispositive of
whether the person is in custody for Miranda purposes).

¶55 Any additional restraints or pressures resulting from the
detectives’ presence did not render the environment a custodial
one. On the one hand, Reigelsperger was not released at the
conclusion of the interview; he was arrested as the detectives
had previously planned. Moreover, Reigelsperger likely would
have surmised that he was a suspect under investigation. He had
recently left a message for Wife apologizing for “intruding on
[her] sexuality”; the detectives had just requested a DNA
sample; the detectives advised Reigelsperger that he had the
right to remain silent, his words could be used against him in

(…continued)
mentions the detectives’ efforts to keep tabs on him at UNI, he
does not claim he was aware of those efforts at the time.

20140773-CA 20 2017 UT App 101
 State v. Reigelsperger

court, and he had the right to an attorney; and the detectives’
questions focused on the day in question and the events leading
up to it. But while these factors favor a finding of Miranda
custody, they are not determinative here.

¶56 Status as a suspect does not necessarily impose a warning
requirement. “[S]ome suspects are free to come and go until the
police decide to make an arrest,” and a detective’s beliefs
concerning an individual’s potential culpability are relevant only
to the extent they would “affect[] how a reasonable person in
that position would perceive his or her freedom to leave.”
Stansbury v. California, 511 U.S. 318, 325 (1994) (per curiam).
Thus, “[e]ven a clear statement from an officer that the person
under interrogation is a prime suspect is not, in itself,
dispositive.” Id. And suspects have been questioned in many
circumstances not amounting to custody. See, e.g., Howes, 565
U.S. at 502–03, 517 (concluding that a defendant questioned
while serving a jail sentence, regarding conduct that allegedly
occurred prior to his imprisonment, was not in custody despite
being confronted with allegations of criminal conduct by two
armed deputies during a five-to-seven hour interrogation in a
conference room of the jail facility); Berkemer v. McCarty, 468 U.S.
420, 423, 441–42 (1984) (concluding that the driver of a motor
vehicle was not in custody when stopped and questioned,
despite the state trooper’s prior conclusion that the driver would
be arrested and charged with a traffic offense); Oregon v.
Mathiason, 429 U.S. 492, 494–95 (1977) (per curiam) (concluding
that an individual suspected of theft and interviewed at a patrol
office was not in custody).

¶57 In addition, the detectives’ intent to arrest Reigelsperger
had not been communicated to him, and he demonstrated no
awareness that his stay at UNI would end momentarily with his
apprehension. An unarticulated plan to arrest a suspect has no
bearing on whether a suspect is “in custody at a particular time;
the only relevant inquiry is how a reasonable [person] in the

20140773-CA 21 2017 UT App 101
 State v. Reigelsperger

suspect’s position would have understood his situation.”
Berkemer, 468 U.S. at 442 (internal quotation marks omitted).

¶58 Other characteristics of the interview also suggest
Reigelsperger was not in Miranda custody. Although
Reigelsperger was not told that he could leave, he appeared
“rather eager to tell his side of the story,” the recorded interview
was completed in less than thirty minutes, and there is no
evidence that the detectives engaged in coercive tactics. 7 In
addition, the detectives were not numerous, they were not in full
uniform, and they were unarmed, carrying only a pair of
handcuffs. Moreover, Reigelsperger was not restricted by
medical equipment, by the detectives, or by UNI staff, and while
Reigelsperger may not have been “free to leave the [waiting
area] by himself” given his status as a patient in the facility, cf.
Howes v. Fields, 565 U.S. 499, 515 (2012), neither the room nor its
location generated a palpable impression that the detectives,
rather than Reigelsperger, would control when the interview
would end.

¶59 Taking into account all of the attendant circumstances, a
reasonable person in Reigelsperger’s situation would have felt
he or she was “at liberty to terminate the interrogation,” see id. at
509 (citation and internal quotation marks omitted), even if he or

7. Reigelsperger claims that “it is unknown what occurred in the
unrecorded portion[]” of the encounter, but the detectives
testified that they asked Reigelsperger for a DNA sample and he
provided one, Reigelsperger then began talking, and Detective
stopped him and informed him of some or all of his Miranda
rights. The trial court found that the detectives did not mislead
Reigelsperger, that their failure to record the initial portion of the
encounter appeared to be “an accident,” and that the recording
reflected “the entire substance of the interview about the events
in question.” Reigelsperger has not shown those findings to be
clearly erroneous.

20140773-CA 22 2017 UT App 101
 State v. Reigelsperger

she did not feel free to leave the facility or to leave the room
without the permission and escort of a facility staff member, see
id. at 515–17 (concluding that a prisoner who was “not free to
leave the conference room by himself and to make his own way
through the facility to his cell” was not in custody for Miranda
purposes); State v. Butt, 2012 UT 34, ¶¶ 21–22, 284 P.3d 605
(concluding that a person interviewed in his jail cell was not in
custody for Miranda purposes, although a person in those
circumstances would “not feel ‘free to leave’”). In addition, the
environment did not “present[] the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda.” See Howes, 565 U.S. at 509. We therefore conclude,
given the totality of the circumstances, that Reigelsperger was
not in custody and thus was not entitled to a Miranda warning,
and the trial court did not err in denying his motion to suppress
on that basis. Cf. Butt, 2012 UT 34, ¶ 22 (concluding that a
suspect interviewed in his jail cell was not in custody, where he
“was not restrained beyond his usual status as a jail inmate, nor
was he coerced in any way”).

II. The Alleged Broadening of the Jury Instructions
Beyond the State’s Asserted Theory of the Case

¶60 Reigelsperger next asserts that the State improperly
expanded the scope of its prosecution at the close of trial. In his
view, the jury instructions addressing the sexual assault offenses
were impermissibly broader than the State’s asserted theory of
the case, with regard to both nonconsent and the intent required
to commit forcible sexual abuse.

¶61 With regard to nonconsent, Reigelsperger claims that only
one theory of nonconsent was alleged in the information and
supported by evidence at the preliminary hearing: that Wife
submitted to the alleged sexual acts due to the presence of a gun
and threats of bodily injury. According to Reigelsperger, the
prosecution relied on this singular theory of nonconsent when
arguing that Reigelsperger should be bound over, and as a result

20140773-CA 23 2017 UT App 101
 State v. Reigelsperger

the prosecution “narrowed the charges to the specific theor[y]”
asserted in the bindover proceeding. He contends that, at trial,
“the prosecution did not maintain these charged and/or bound-
over particulars.” Instead, the jury was instructed that “object
rape, forcible sodomy, or forcible sexual abuse is without the
consent of the victim” under several circumstances, and the jury
was also instructed that it was “not precluded from determining
that” still other circumstances could “amount to a lack of consent
in this case.” Thus, Reigelsperger claims, “the jury likely
convicted [him] for some . . . theory of non-consent” other than
the presence of a gun or threats of bodily injury, as
“highlighted” by the fact that the “jury did not convict [him] of
the aggravated sexual [assault] charges.”

¶62 Reigelsperger employs this same reasoning to challenge
the jury instructions regarding forcible sexual abuse. In his view,
the jury was improperly instructed that he committed the
forcible sexual assaults alleged in counts IV and V of the
information if he touched Wife either “‘with the intent to cause
substantial emotional or bodily pain’” or “‘with the intent to
arouse or gratify the sexual desire of any person.’” Reigelsperger
asserts the charges were narrowed based on the prosecution’s
argument at the preliminary hearing, such that he could be
convicted of count IV only if he intended to cause bodily pain
and count V only if he intended to gratify the sexual desire of
any person.

¶63 Thus, Reigelsperger concludes, his four sexual assault
convictions “were based upon facts and theories concerning the
element of non-consent, and on two occasions the element of
specific intent, for which he was not charged and/or bound over
at preliminary hearing.” He does not assert a “defect in the
information,” a “defect in bindover,” or a “lack of evidence at
the preliminary hearing.” Rather, his contention is that “[i]n
arguing probable cause for the bind-over, the prosecutor
narrowed the charges” to the theories of nonconsent and specific
intent asserted. Because “a criminal defendant may not be

20140773-CA 24 2017 UT App 101
 State v. Reigelsperger

convicted of an offense different from that upon which he was
bound-over at preliminary hearing,” Reigelsperger concludes,
this court must “vacate the sexual assault convictions.”

¶64 As noted above, these challenges are raised for the first
time on appeal as claims of plain error and ineffective assistance
of counsel. To demonstrate plain error, a defendant must
establish error that “should have been obvious to the trial court”
because it “contravenes settled appellate law” or plain statutory
language. Zavala v. Zavala, 2016 UT App 6, ¶ 27, 366 P.3d 422
(citations and internal quotation marks omitted); see also State v.
Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (noting that a defendant
“must show that the law governing the error was clear at the
time the alleged error was made”). Additionally, if trial counsel’s
timely objection to the alleged error would have been futile
because the objection lacked merit, failure to raise the objection
does not constitute ineffective assistance. See State v. Bond, 2015
UT 88, ¶ 63, 361 P.3d 104.

¶65 As the State points out, as a factual matter, neither the
information nor the prosecution’s argument at the preliminary
hearing indicates that “the State was limiting itself to specific
theories of consent or specific intent,” nor did the court order
binding Reigelsperger over on the sexual assault offenses “limit
the State to such specific theories.” Moreover, as a legal matter,
Reigelsperger has not demonstrated that the asserted errors
should have been obvious to the trial court or that his counsel
performed ineffectively by failing to object to the jury
instructions.

¶66 Reigelsperger was charged with four counts of
aggravated sexual assault, and the language of each charge was
drawn directly from the statutory definition of the offense. See
Utah Code Ann. § 76-5-405 (LexisNexis 2012). Each charge
asserted the full range of conduct and intent that could give rise
to the offense, alleging that Reigelsperger, in the course of

20140773-CA 25 2017 UT App 101
 State v. Reigelsperger

committing or attempting to commit rape, object rape, forcible
sodomy, or forcible sexual abuse, did

(i) use, or threaten the victim with the use of, a
dangerous weapon . . . ;
(ii) compel, or attempt to compel, the victim to
submit to rape, object rape, forcible sodomy, or
forcible sexual abuse, by threat of kidnapping,
death, or serious bodily injury to be inflicted
imminently on any person; or
(iii) receive aid or abetment from one or more
persons . . . .

¶67 The jury instructions mirrored the charges. The jury was
instructed that Reigelsperger committed aggravated sexual
assault if he, in the course of an object rape (count II), forcible
sodomy (count III), or forcible sexual abuse (counts IV and V),
used or threatened Wife with the use of a dangerous weapon or
compelled or attempted to compel Wife to submit to the act by
threat of kidnapping, death, or serious bodily injury to be
inflicted imminently on any person.

¶68 The jury was also instructed as to the elements of the
underlying sexual assault offenses. To convict Reigelsperger of
forcible sexual abuse, the jury was required to find that, among
other things, Reigelsperger engaged in certain conduct without
the consent of Wife, “with the intent to cause substantial
emotional or bodily pain to [Wife] or with the intent to arouse or
gratify the sexual desire of any person.” These instructions
closely track the statutory definition of forcible sexual abuse. See
id. § 76-5-404(1).

¶69 When, as here, a defendant is charged with aggravated
sexual assault in language that essentially reiterates the statutory
definition of that offense, the defendant has “notice that he [will]
have to defend against any variation of [sexual] assault that the
evidence might support.” Cf. State v. Sanislo, 2015 UT App 232,

20140773-CA 26 2017 UT App 101
 State v. Reigelsperger

¶ 16, 359 P.3d 1287. Reigelsperger was charged with four counts
of aggravated sexual assault and convicted of four sexual assault
offenses, based on the same general evidence and allegations
outlined in the information and presented at the preliminary
hearing. It is difficult to perceive how a “reasonable person
aware of [the alleged] facts and the charged offenses could have
been surprised” when, as was the case here, the prosecution
pursued convictions based on the statutorily defined variations
of intent and conduct that give rise to the lesser included sexual
assault offenses. Cf. id. ¶ 19; State v. Carruth, 1999 UT 107, ¶¶ 13–
14, 993 P.2d 869 (concluding that the prosecution may request
jury instructions for lesser offenses necessarily included in those
charged).

¶70 Reigelsperger cites no legal decision or other authority
suggesting that the charges and allegations in the information
did not support prosecution of the full range of conduct
prohibited by the statutes he was charged with violating. Under
Utah law, statements plucked from the prosecution’s argument
at a preliminary hearing, in which the prosecution characterized
some of the evidence and highlighted some of its theories of the
case, do not rule out the State’s pursuit of other theories at trial
of which the charges provided notice. Cf. Utah R. Crim. P. 21(e)
(permitting the jury to “return a verdict of guilty to the offense
charged or to any offense necessarily included in the offense
charged or an attempt to commit either the offense charged or an
offense necessarily included therein”).

¶71 Because Reigelsperger has failed to provide any settled
law supporting his claim, and because trial counsel’s objection to
the claimed error would have failed for lack of merit,
Reigelsperger has not established plain error or ineffective
assistance of counsel with regard to the theories and evidence
underlying his sexual assault convictions. See State v. Bond, 2015
UT 88, ¶ 63, 361 P.3d 104 (rejecting a claim of ineffective
assistance of counsel, concluding that if trial counsel had made
the motion at issue, it would have been futile); State v. Dean, 2004

20140773-CA 27 2017 UT App 101
 State v. Reigelsperger

UT 63, ¶ 21, 95 P.3d 276 (rejecting a claim of plain error because
“the law in this area was not plainly settled so as to have
adequately guided the trial court” at the time the alleged error
occurred).

III. The Instructions Regarding Nonconsent

¶72 In his third challenge to the proceedings below,
Reigelsperger asserts that the jury instructions with regard to the
underlying sexual assault offenses “led the jury to incorrectly
believe that [he] could be convicted of the sexual crimes absent a
culpable mens rea specifically regarding consent.” The State concedes
that “[t]he sexual assault instructions do appear to be
erroneous,” but claims Reigelsperger was not prejudiced by the
improper instruction. Given the substantial evidence presented
to the jury “not only that [Wife] did not consent, but that
[Reigelsperger] was aware of her lack of consent,” the State
asserts that, if properly instructed, the jury would have
determined Reigelsperger was at least reckless with regard to
Wife’s nonconsent. We agree.

¶73 “[T]he crime of rape requires proof not only that a
defendant ‘knowingly, intentionally, or recklessly had sexual
intercourse,’ but also that he had the [same] requisite mens rea
as to the victim’s nonconsent.” State v. Barela, 2015 UT 22, ¶ 26,
349 P.3d 676 (quoting State v. Marchet, 2009 UT App 262, ¶ 23,
219 P.3d 75). 8 Thus, when a defendant is on trial for that offense,

8. For purposes of this appeal, the State does not contest that this
principle, applied with respect to the offense of rape, “also
applies to other sexual crimes requiring proof of the victim’s
nonconsent.” Given the State’s position as well as our conclusion
that any error in the instructions did not prejudice Reigelsperger,
we assume without deciding that the principle applies more
broadly and that the instructions for all of the sexual assault
(continued…)

20140773-CA 28 2017 UT App 101
 State v. Reigelsperger

a jury must be fairly instructed that the offense requires a
knowing, intentional, or reckless state of mind as to the element
of nonconsent. See Marchet, 2009 UT App 262, ¶ 23.

¶74 For each of the four sexual assault offenses, the jury was
instructed that to convict Reigelsperger, it must find that:

1. Reigelsperger engaged in specified sexual
activity with Wife and, where applicable, he did
so with the requisite specific intent;
2. “Reigelsperger acted intentionally, knowingly
or recklessly”;
3. “[Wife] is a person . . . 14 years of age or older”;
and
4. “The[] acts occurred without [Wife’s] consent.”

¶75 The requirement that Reigelsperger must have acted
intentionally, knowingly, or recklessly was thus placed in the
middle of the jury instruction, while the element of nonconsent
was placed at the bottom of the list. Because the mens rea
requirement appears directly after several substantive elements
of the offense, while the element of nonconsent was articulated
subsequently and separately, the jury instructions implied that
no particular mens rea was required as to nonconsent. See Barela,
2015 UT 22, ¶ 26.

¶76 As noted previously, this defect in the jury instructions
was not brought to the trial court’s attention and is asserted on
appeal in claims of plain error and ineffective assistance of
counsel. Both claims require Reigelsperger to show that the
alleged error was prejudicial to him, and the prejudice standard
is the same for both claims. See State v. McNeil, 2016 UT 3, ¶¶ 25,

(…continued)
offenses at issue here were erroneous as to the mens rea required
with respect to nonconsent.

20140773-CA 29 2017 UT App 101
 State v. Reigelsperger

29, 365 P.3d 699. Reigelsperger must establish a reasonable
probability that, but for the error, “‘the result of the proceeding
would have been different,’” or in other words, “‘a probability
sufficient to undermine [our] confidence in the outcome.’” See id.
¶ 27 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

¶77 Failure to properly link the mens rea requirement with
the element of nonconsent certainly may undermine our
confidence in a sexual assault conviction, depending on the
circumstances. For example, when the evidence consists largely
of competing narratives as to whether generally undisputed
sexual activity was consensual, a jury might conclude that the
sexual activity was nonconsensual but, if properly instructed,
nevertheless entertain reasonable doubt as to whether the
defendant was reckless as to the lack of consent. See, e.g., Barela,
2015 UT 22, ¶¶ 28–32 (reversing a rape conviction, concluding
that “a reasonable jury could have found the truth to lie
somewhere between” the accounts presented by the prosecution
and the defense, and the jury therefore could have, if correctly
instructed, determined “that [the defendant] had neither
knowledge nor recklessness” as to the victim’s nonconsent).

¶78 Here, the jury found Reigelsperger recklessly, knowingly,
or intentionally engaged in the specified conduct; where
required, he acted with the specified intent, such as the “intent to
arouse or gratify the sexual desire of any person”; and he did so
without Wife’s consent. But “that does not . . . mean that the jury
accepted [Wife’s] story lock, stock, and barrel.” See State v. Barela,
2015 UT 22, ¶ 30, 349 P.3d 676. Indeed, although urged by the
prosecution to convict Reigelsperger of several counts of
aggravated sexual assault, based largely on Wife’s testimony, the
jury found Reigelsperger not guilty of those charges and instead
convicted him of offenses that did not require use or threatened
use of a dangerous weapon or threats of kidnapping, death, or
serious bodily injury.

20140773-CA 30 2017 UT App 101
 State v. Reigelsperger

¶79 Although the record does not reveal the jury’s rationale,
there is a reasonable possibility that the jury did not entirely
credit Wife’s testimony, such as her statement that she was
“completely cooperative” with Reigelsperger’s sexual advances
because “the fact that there was a gun kept [her] from doing any
kind of resisting, any kind of provoking.” Yet even assuming the
jury found the truth to lie somewhere between Reigelsperger’s
and Wife’s accounts, Reigelsperger’s own statements and
testimony rule out any reasonable probability that the jury
would have concluded that he was not at least reckless with
regard to Wife’s nonconsent.

¶80 At trial Reigelsperger was asked whether “[t]his was all
consensual,” and he replied, “I don’t know. [Wife] didn’t jump
right on it, no. She didn’t say yes, let’s have sex, or—but she
never pushed me away, ever. . . . I guess she could’ve punched
me in the face and pushed me away, yeah. So it probably was
consensual.” Nonconsent cannot be determined simply by
asking whether a person physically fought back or attempted to
escape. See id. ¶¶ 39–41; Utah Code Ann. § 76-5-406 (LexisNexis
2012). Moreover, Reigelsperger’s use of the words “I don’t
know” and “probably” implicitly acknowledge his awareness of
a risk of nonconsent, and that awareness was further confirmed
to the jury when it heard Reigelsperger’s voicemail message to
Wife, stating, “I’m so very sorry for offending you and intruding
on your sexuality . . . .”

¶81 “[T]he essence of consent is that it is given out of free
will,” and determining whether someone has “truly consented”
requires close attention to a wide range of contextual elements,
including verbal and nonverbal cues. Barela, 2015 UT 22, ¶¶ 39,
43 (citation and internal quotation marks omitted). Determining
whether a person was criminally reckless with regard to
another’s nonconsent involves a similarly contextual inquiry, cf.
id., and Reigelsperger’s statements and testimony were replete
with references to contextual elements indicating nonconsent,
such that once the jury concluded Wife had not consented, there

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was no reasonable probability that the jury would conclude
Reigelsperger was not at least criminally reckless in that regard.

¶82 At trial Reigelsperger confirmed his understanding that
Wife desired no contact or interactions with him outside of their
divorce proceedings and that she preferred to communicate with
him about their property management business only through
text or voicemail messages. Reigelsperger also confirmed his
understanding that, on the day in question, “there[] [was] no
way [Wife] would want to see [him],” and described Wife’s
reaction upon seeing him and observing the gun, noose, and
ladder as being “freaked,” going “berserk,” and “frantic[ally]
cry[ing] and screaming.” Reigelsperger further testified that
when he and Wife were in the entryway, he “tried to hug [Wife],
and she pushed [him],” indicating that she wanted him to “get
away from [her].” He recounted Wife’s statement that she
“want[ed] to leave” as well as his reply that “no, [she] ha[d] to
come in,” and testified that when asked if he could “have one
last kiss and hug,” Wife “said no.”

¶83 The jury also heard Reigelsperger’s statements during his
interview at UNI, when he recalled telling Wife, “I want you to
get in the jacuzzi with me,” she responded, “No, I’m not going
to,” and he replied, “Oh yes, you are.” Reigelsperger further
recounted that he had asked Wife for “a kiss” and “one last
jacuzzi,” Wife responded, “I don’t feel like doing it and you’re
not going to make me,” and he replied, “Oh yes you are.”
Reigelsperger also described the encounter in the hot tub,
saying, “I grabbed [Wife] and held her and kissed her, and she
pushed me away and went and was crying in the corner.”

¶84 A person is criminally reckless “when he is aware of but
consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur,” meaning that
the risk is “of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as

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 State v. Reigelsperger

viewed from the actor’s standpoint.” Utah Code Ann. § 76-2-
103(3) (LexisNexis 2012). When a person has repeatedly been
told “no” prior to engaging in or demanding sexual contact, and
responds with statements like “yes you will,” “yes you are,” or I
will “make” you, there exists a pattern of imposing one’s will
onto another such that, absent sufficient affirmative indication of
permission to engage in sexual contact, those verbal protests,
even if intermittent and even if they subsequently cease,
nevertheless establish the defendant’s awareness and conscious
disregard of a substantial and unjustifiable risk of nonconsent
for that immediate period.

¶85 Reigelsperger points to Wife’s “cooperat[ion] with the
sexual activities in the hot tub” and alleged lack of efforts to
escape, and argues that she also “did not say no” and “did not
resist,” thus giving the jury a reasonable basis for finding that he
was not reckless with regard to nonconsent. But cooperation
cannot be viewed in a vacuum. And Reigelsperger’s assertions
are not only inaccurate, even looking solely at his accounts of the
day in question, they also lack context—limited to the few
minutes in which Wife did not speak and ignoring that, when
she did, Wife indicated her desires to leave, not to be with
Reigelsperger, and not to engage in certain activities or have
sexual contact with him. When refusals, rejections, or resistance
are met with disregard, hostility, and commands to submit, any
limited cooperation that immediately follows cannot be said,
without more, to constitute consent. And Reigelsperger’s
identification of some types of resistance Wife did not pursue—
such as escape or physical attacks—does not undercut the
various ways in which Wife did indicate nonconsent.

¶86 Reigelsperger also asserts that he stopped touching Wife
when her words suggested physical discomfort. Even assuming
Reigelsperger did not intend to inflict physical pain on Wife, that
would not render any less compelling the evidence that he
insisted on sexual contact that was not physically painful and
that he was, at best, grossly indifferent as to whether Wife

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 State v. Reigelsperger

consented to that contact. Finally, Reigelsperger asserts that he
was not in a proper state of mind on the day in question but
presents no substantive argument that he was legally
unaccountable for his actions and points to no evidence that he
was impaired in his ability to perceive or process Wife’s
nonconsent. As noted above, the evidence did not suggest lack
of understanding of Wife’s wishes, for Reigelsperger countered
her express resistance with express insistence, and he ignored or
disregarded her obvious distress as well as numerous other
indications of nonconsent.

¶87 Once the jury found that Wife did not consent to the
sexual conduct, there was no reasonable probability that the jury
would not have found Reigelsperger at least criminally reckless
with regard to that nonconsent. Accordingly, Reigelsperger has
not established a reasonable probability that, but for the error in
the jury instructions, the result of the proceeding would have
been different. Cf. State v. Ochoa, 2014 UT App 296, ¶¶ 6–7, 341
P.3d 942 (concluding that although the jury “was not instructed
on the mental state required for [the] offense,” “there was no
rational basis for the jury to have concluded that” the defendant
did not possess the mens rea required for commission of the
offense).

IV. The Instruction Regarding Aggravated Kidnapping

¶88 In his final challenge, Reigelsperger asserts the jury
instructions as to aggravated kidnapping were “a mess,” leaving
the jury unable to “clearly decipher the . . . mens rea necessary to
convict on” that charge. He contends the jury was not properly
instructed that he must have acted intentionally and knowingly
in the commission of kidnapping or unlawful detention and in
the possession, use, or threat to use a dangerous weapon.

¶89 Instruction 19 set out the elements of the aggravated
kidnapping offense, but rather than attach the appropriate mens

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 State v. Reigelsperger

rea requirement to each element, the instruction concluded with
a general requirement of intent or knowledge:

[Y]ou must find from all of the evidence and
beyond a reasonable doubt each and every one of
the following elements of th[e] offense:

1. That . . . Reigelsperger, in the course of
unlawfully detaining or kidnapping [Wife];
2. (a) possessed, used, or threatened to use a
dangerous weapon; OR
(b) acted with intent:
(i) to commit or to facilitate the
commission, attempted commission,
or flight after the commission of
aggravated sexual assault, forcible
sodomy, object rape, or forcible sexual
abuse; OR
(ii) to inflict bodily injury on or to
terrorize [Wife] or another;
AND
3. [Reigelsperger] acted intentionally or
knowingly.

(Emphasis in original.)

¶90 When addressing an appellant’s challenge to a jury
instruction, we look at the “instructions in their entirety and will
affirm when the instructions taken as a whole fairly instruct the
jury on the law applicable to the case.” State v. Plexico, 2016 UT
App 118, ¶ 30, 376 P.3d 1080 (citation and internal quotation
marks omitted). Here, the “intentional or knowing” requirement
applicable to the first element of the offense—commission of
unlawful detention or kidnapping—was laid out in subsequent
instructions. See Utah Code Ann. § 76-5-301 (LexisNexis 2012)
(providing that the applicable mens rea for kidnapping is
intentional or knowing); id. § 76-5-304 (providing that the

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 State v. Reigelsperger

applicable mens rea for unlawful detention is intentional or
knowing). Reigelsperger does not contend that those subsequent
instructions were deficient, and thus concedes that the jury
instructions as a whole adequately conveyed the mens rea
requirement as to that element. See Plexico, 2016 UT App 118,
¶ 31 (concluding that the contested jury instructions were not
erroneous because, “when considered as a whole, [they]
accurately instructed the jury [regarding] the basic elements of
the offense and the required mens rea”).

¶91 But Reigelsperger contends that the intentional or
knowing mens rea requirement was not sufficiently linked to the
dangerous weapon element set out in 2(a)—the possession, use,
or threatened use of a dangerous weapon. And in a somewhat
contradictory claim, Reigelsperger asserts that the jury would
attempt to link the general mens rea requirement to the specific
intent elements set out in 2(b), and would then be confused into
nullifying those elements’ requirements of specific intent.

¶92 As with several of Reigelsperger’s other objections and as
set forth above, these issues are raised for the first time on
appeal as claims of plain error and ineffective assistance of
counsel. To establish plain error a defendant must show obvious
error, supra ¶¶ 64, 71, and a claim of ineffective assistance is
similarly difficult to demonstrate. “Judicial scrutiny of counsel’s
performance [is] highly deferential” and includes a strong
presumption that counsel “rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.” Strickland v. Washington, 466 U.S. 668,
689–90 (1984). The law does not require counsel to seek
resolution of every unsettled legal question that might bear on
the proceeding, see New v. United States, 652 F.3d 949, 952 (8th
Cir. 2011), or to make every novel argument new counsel may
later derive and assert for the first time on appeal, see State v.
Love, 2014 UT App 175, ¶ 7, 332 P.3d 383. Rather, “the proper
standard for attorney performance is that of reasonably effective
assistance.” Strickland, 466 U.S. at 687.

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 State v. Reigelsperger

¶93 In 2012, almost two years prior to Reigelsperger’s trial,
this court addressed a jury instruction similar to the one given in
this case, in that it set out the elements of rape and added, at the
end of the instruction, the requirement that “the defendant acted
intentionally or knowingly or recklessly.” State v. Marchet, 2012
UT App 197, ¶ 18, 284 P.3d 668 (internal quotation marks
omitted). This court concluded that the instruction, as given,
“accurately identified each element of the crime . . . and correctly
stated the applicable mental state.” Id. ¶ 19 (citation and internal
quotation marks omitted). While noting that the instruction
could have been clearer, id. ¶ 19 n.5, this court concluded that
the jury had been “properly informed . . . as to the elements and
mental state of the crime,” id. ¶ 19. And the Utah Supreme Court
subsequently commented, with respect to a similar instruction,
that it “at least arguably suggests that the mens rea element
applies to all of the above-listed elements,” although the court
did not resolve whether the instruction provided “an accurate
statement of law.” State v. Barela, 2015 UT 22, ¶ 26 n.3, 349 P.3d
676.

¶94 Given this court’s conclusion in Marchet, Reigelsperger
cannot succeed on his claims that the aggravated kidnapping
instruction was obviously wrong and that the failure to object to
it was an “omission[] . . . outside the wide range of
professionally competent assistance.” See Strickland, 466 U.S. at
690. Reigelsperger attempts to distinguish Marchet, arguing that
because the jury instruction in his case included references to
specific intent, the general intentional and knowing requirement
“inundated” the jury with “mens rea references,” thus rendering
the instruction unclear and inaccurate. But even assuming that
were the case, we are not addressing the issue de novo. We are
considering whether any such error was obvious to the trial
court and whether the failure to raise it was outside the bounds
of reasonable professional judgment. We conclude that it was
not, for Reigelsperger points to no appellate decision in support
of his claim, and several decisions weigh against it.

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 State v. Reigelsperger

¶95 This court has upheld instructions in which specific intent
was required for a particular element but an overarching mens
rea instruction was nonetheless given. In State v. Kennedy, for
example, the jury was given a general instruction that “the
defendant must have acted intentionally or knowingly or
recklessly”; but the jury was also instructed that, to commit the
specific offense, the defendant must have acted “[w]ith the intent
to hinder, delay, or prevent the investigation, apprehension,
prosecution, conviction, or punishment of any person regarding
a criminal offense.” 2015 UT App 152, ¶¶ 25–26, 354 P.3d 775
(internal quotation marks omitted). The defendant asserted that
the instructions were erroneous and that they had led the jury to
conflate the specific intent requirement with the requirement of
intentional, knowing, or reckless conduct. Id. ¶ 27. This court
disagreed, concluding that the defendant had not established
plain error or ineffective assistance of counsel. Id. ¶ 30; see also,
e.g., State v. Plexico, 2016 UT App 118, ¶¶ 13, 29–31, 376 P.3d 1080
(concluding that the jury instructions accurately conveyed the
“elements of the offense and the required mens rea,” where the
jury was given a general mens rea instruction along with an
instruction requiring a certain belief or an intent to prevent an
official proceeding or investigation).

¶96 Utah law thus suggests juries can, without being
specifically instructed, conclude that a general mens rea
requirement applies to all elements of an offense, except where a
specific mental state is expressly indicated. Reigelsperger does
not cite any decision to the contrary. Because Reigelsperger has
failed to provide any settled law supporting his claim, he has not
established plain error with regard to the jury instruction as to
the aggravated kidnapping charge. See supra ¶ 71; see also State v.
Roman, 2015 UT App 183, ¶ 11, 356 P.3d 185 (concluding that,
given the lack of “settled law on this point, any error [in that
regard] . . . would not have been obvious to the district court”).
Moreover, although there may be circumstances in which trial
counsel’s failure to raise an unsettled legal question will

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constitute ineffective assistance, we cannot conclude that, under
the circumstances present here, trial counsel’s failure to object to
the jury instruction fell below the standard of “reasonably
effective assistance.” See Strickland, 466 U.S. at 687. The trial
court thus did not plainly err in giving the instruction nor did
trial counsel render ineffective assistance by failing to raise the
issue.

CONCLUSION

¶97 The trial court correctly concluded that Reigelsperger was
not in custody for Miranda purposes when he spoke with the
detectives at UNI, and thus Reigelsperger’s motion to suppress
those statements was properly denied. In addition,
Reigelsperger has failed to demonstrate plain error or ineffective
assistance of counsel stemming from the facts and theories
underlying his sexual assault convictions. Reigelsperger has
likewise failed to demonstrate plain error or ineffective
assistance of counsel with regard to the instructions outlining
the elements of the sexual assault and aggravated kidnapping
offenses. Accordingly, the trial court’s judgment is affirmed.

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