State v. Ray

2017 UT App 78

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ERIC MATTHEW RAY,
Appellant.

Opinion
No. 20121040-CA
Filed May 4, 2017

Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 101401511

Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
STEPHEN L. ROTH and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Eric Matthew Ray, then twenty-eight years old, engaged
in a wholly inappropriate relationship with a fifteen-year-old
girl (Victim). Growing out of that relationship, Ray was charged
with several sexual offenses and, after a jury trial, was found
guilty of forcible sexual abuse, a second degree felony. See Utah
Code Ann. § 76-5-404(2)(a) (LexisNexis 2012). He was acquitted
of a charge of object rape, and the jury could not reach a verdict
on two counts of forcible sodomy. Because trial counsel
provided Ray ineffective assistance by failing to request a jury
instruction explicating the legal meaning of a key phrase within
the elements instruction for the crime of which he was convicted,
we reverse and remand for a new trial.
 State v. Ray

BACKGROUND

¶2 This case began innocently enough when Ray, then a law
student in Illinois, inadvertently sent a text message to a wrong
number. Victim, with whom he was not then acquainted, was
the recipient of that text. Following this initial contact, Ray and
Victim began an ill-advised relationship through continued (and
frequent) text messages. Their relationship progressed, and
eventually both parties affirmed their love for each other and
their ultimate desire to wed. Ray decided to visit Utah to meet
Victim during his spring break.

¶3 The pair met in front of Victim’s school, and Ray drove
her to his hotel, where they spent a considerable amount of time
together over the next several days. On the first day, Ray kissed
Victim, ‚and then there was a lot of kissing and making out
going on.‛ According to Victim, the ‚making out‛ involved
intense kissing, with Ray touching her breasts and pubic area
over her clothing. This went on for several hours.

¶4 The following day, the activities grew more sexual in
nature. In particular, Ray and Victim again kissed on the bed,
but this time they wore only their underwear. According to
Victim, Ray ‚momentarily‛ touched under her bra and the front
and back of her ‚private area‛ over her underwear. Victim
testified that she touched Ray’s ‚private area‛ over his
underwear and gave him a ‚hand-job.‛

¶5 Two days later, Ray again took Victim to his hotel room,
which he had decorated with flower petals and some thirty
candles. Among other activities, Victim showered in Ray’s hotel
bathroom, shaved her pubic area (per Ray’s earlier request via
text message), and then exited the bathroom, naked, to find Ray,
also naked. They kissed, standing together nude, before moving
to Ray’s bed where they continued kissing in the nude. Although
they never engaged in vaginal intercourse, Victim testified that
Ray touched the outside of her vagina. This testimony was
contrary to what the prosecution told the jury to expect in its

20121040-CA 2 2017 UT App 78
 State v. Ray

opening statement, namely that Victim would testify that Ray
digitally (and painfully) penetrated her vagina.1 Afterward, they
watched a movie together while still naked.

¶6 After going out for lunch at a nearby fast-food restaurant,
they returned, undressed again, and kissed some more.
According to Victim, Ray asked her if she wanted to have
intercourse with him, but Victim said she ‚wasn’t ready.‛ Victim
also testified that Ray then discussed with her how far he
thought they could go ‚without getting in trouble with the law.‛
That day, the last day of their tryst, Ray gave Victim ‚a candle, a
tee shirt, and a vibrator‛ to remember him by, and Victim gave
Ray a shirt.

¶7 Shortly after Ray returned to Illinois, Victim became
severely ill with meningitis and was hospitalized. During her
hospitalization, Victim’s parents discovered her apparent
involvement with a much older man, but they initially believed
the relationship was limited to communication via the internet.
After making this discovery, Victim’s parents sent a message to
Ray telling him to ‚leave *Victim+ alone.‛ They also contacted a
family friend, who was a police detective, about the matter.

¶8 The detective visited the hospital and interviewed Victim.
Victim, though ‚groggy‛ and heavily sedated, told the detective
about her and Ray kissing and his having attempted to touch her
vagina, but she did not then claim that any other sexual contact
occurred. The detective continued his investigation, taking
Victim’s phone and assuming her identity in text-message and
Facebook conversations with Ray. During the course of these
conversations, Ray confided in ‚Victim‛ that he had deleted
many of the photos Victim had sent him because he was afraid

1. The prosecutor’s misstatement appears not to have been
calculated, but rather a function of unexpected turns in Victim’s
testimony.

20121040-CA 3 2017 UT App 78
 State v. Ray

‚the police were coming after *him+,‛ even though he was sure
his conduct had ‚not violated any laws.‛

¶9 When ‚Victim‛ asked Ray via text message why he was
so afraid of her ‚telling on *him+,‛ Ray texted back that ‚it
would cause unnecessary complications in my life.‛2 ‚Victim‛
wondered whether she might be pregnant, but Ray affirmed,
‚*W+e didnt have sex.‛ After ‚Victim‛ responded, ‚yeah but you
touched me there what if sperm was on your hand,‛ Ray only
replied, ‚your parents would have found a way to get me
arrested.‛ Ray did note, however, that ‚we wanted to *have sex]
when we were kissing,‛ ‚but you wanted to . . . stay a virgin and
I didnt want to hurt you.‛

¶10 In an effort to lure Ray into making a more incriminating
statement, the detective, still posing as Victim, feigned
forgetfulness about the time they spent together. Ray confirmed
key details of Victim’s account, such as kissing her, the candles
and rose petals in the hotel room, watching the movie together,
kissing in bed ‚for the rest of the day,‛ and visiting the fast-food
restaurant with Victim. But he steadfastly refused to admit any
conduct establishing the crimes for which he was later charged.

¶11 Eventually, ‚Victim‛ succeeded in persuading Ray to
return to Utah. Before Ray left Illinois, he corroborated yet
another detail: he asked ‚Victim‛ whether she still possessed the
vibrator he had given her. Ray was arrested upon his arrival in
Utah. Although it is true, as Ray states in his brief, that he ‚did
not confess to or acknowledge*+ any of the charged offenses‛
during his interrogation by police, he did confirm that the pair
started their relationship through text messages, and he
professed his deep feelings for Victim ‚numerous times and
vigorously, vehemently.‛ He was charged with two counts of

2. One such complication, no doubt, was that Ray was married at
the time.

20121040-CA 4 2017 UT App 78
 State v. Ray

forcible sodomy,3 one count of object rape, and one count of
forcible sexual abuse. The case proceeded to trial.

¶12 During trial, Ray’s counsel exposed a number of
inconsistencies in Victim’s story, including significant variation
among the versions of her story as told to the detective during
her initial interview, as discussed with her father and sister,
during her preliminary hearing testimony, and as given in the
course of her trial testimony. For example, Victim failed to testify
that Ray digitally penetrated her vagina, which, as noted above,
the State said she would do during its opening statement.
Defense counsel also pointed out that Victim had denied on
other occasions that Ray’s penis entered her mouth, including
during the preliminary hearing4 and in a discussion with her
sister, before she testified during her direct examination at trial
that it did enter her mouth.

3. Although Victim denied at various times that she and Ray had
oral sex, at one point during the preliminary hearing Victim
alleged that she performed oral sex on Ray, and he on her, and
that he ejaculated into her mouth. But a few minutes later, she
denied that his penis actually entered her mouth. At trial, her
testimony was that his mouth touched her vagina and that she
touched his ‚private area‛ with her mouth for ‚*m+aybe 10
minutes.‛ Of course, her prior inconsistency was consistently
emphasized by defense counsel.

4. Victim’s testimony during the preliminary hearing was
somewhat contradictory; during examination by the prosecutor,
she testified that Ray ejaculated in her mouth, but during cross-
examination she testified, in response to defense counsel’s
question, ‚Was his penis ever inside your mouth?,‛ ‚No. It
might have touched *it.+‛ The magistrate likely concluded, in
deciding to bind Ray over for trial on the sodomy charges, that
one version of Victim’s admittedly confusing account of events
would support the charges, although clearly the jury would have
credibility issues to sort out.

20121040-CA 5 2017 UT App 78
 State v. Ray

¶13 At trial, the detective recounted his conversation with
Victim while she was hospitalized, described his trickery of Ray,
and laid the foundation for the introduction of Ray’s text
messages to Victim’s phone while the detective was pretending
to be Victim. Victim’s mother and Ray’s (by then) ex-wife also
testified against him. Ray did not take the stand.

¶14 Despite Ray’s counsel’s otherwise vigorous and effective
defense, he neglected to ask for a jury instruction defining
‚indecent liberties‛ as that phrase is used in the forcible sexual
abuse statute. See Utah Code Ann. § 76-5-404(1) (LexisNexis
2012). After deliberation, the jury returned a verdict of not guilty
on the charge of object rape and guilty as to forcible sexual
abuse. It could not reach a verdict on the two forcible sodomy
charges. The trial court sentenced Ray to one-to-fifteen years in
prison on the sexual abuse charge. Ray appeals.

ISSUE AND STANDARD OF REVIEW

¶15 Ray alleges that, by failing to request a jury instruction
defining the term ‚indecent liberties,‛ his trial counsel provided
him ineffective assistance. Ray raises this claim for the first time
on appeal. Although, ordinarily, ‚to preserve an issue for
appeal, the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue,‛
State v. Soules, 2012 UT App 238, ¶ 9, 286 P.3d 25 (citation and
internal quotation marks omitted), ‚[i]neffective assistance . . . is
an exception to the preservation rule,‛ State v. Johnson, 2015 UT
App 312, ¶ 15, 365 P.3d 730, because it is unrealistic to expect
that trial counsel would bring his own ineffectiveness to the
attention of the trial court. When such claims are raised for the
first time on appeal, we treat them as presenting ‚a matter of
law.‛ State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376. ‚To win
reversal on ineffective-assistance grounds, a defendant must
prove both that counsel’s performance was objectively deficient
and that it resulted in prejudice.‛ Johnson, 2015 UT App 312,
¶ 15.

20121040-CA 6 2017 UT App 78
 State v. Ray

ANALYSIS

I. Trial Counsel’s Performance Was Objectively Deficient.

¶16 To begin, we state two basic points that guide our
analysis. First, it has long been recognized that ‚a statute which
either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its
meaning and differ as to its application‛ is unconstitutional.
Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). The only
thing capable of saving vague phrases—phrases such as
‚indecent liberties‛—from constitutional infirmity is a clear and
consistent meaning that has been engrafted onto the statute via
judicial decisions. See State v. Lewis, 2014 UT App 241, ¶ 11, 337
P.3d 1053. And second, ‚*t+he general rule for jury instructions is
that an accurate instruction upon the basic elements of an
offense is essential. Failure to so instruct constitutes reversible
error.‛ State v. Bird, 2015 UT 7, ¶ 14, 345 P.3d 1141 (citation and
internal quotation marks omitted).

¶17 The Utah Code states that

[a] person commits forcible sexual abuse if the
victim is 14 years of age or older and, under
circumstances not amounting to rape, object rape,
sodomy, or attempted rape or sodomy, the actor
touches the anus, buttocks, or any part of the
genitals of another, or touches the breast of a
female, or otherwise takes indecent liberties with
another . . . .

Utah Code Ann. § 76-5-404(1) (LexisNexis 2012) (emphasis
added). We have previously made clear that the emphasized
phrase is so vague as to be unconstitutional when it is not
accompanied with further instruction as to its precise legal
definition, which is considerably narrower than what it might be
taken to mean in common parlance. See Lewis, 2014 UT App 241,
¶¶ 11–13, 15. Although the average juror is presumed capable of

20121040-CA 7 2017 UT App 78
 State v. Ray

interpreting terms with universally accepted definitions, see State
v. Day, 572 P.2d 703, 705 (Utah 1977), to go further and ‚say that
men unlearned in the science of the law are competent at all
times . . . to determine the technical legal bearing and proper
construction of an act . . . is something this Court cannot
concede,‛ People v. Green, 1 Utah 11, 15 (1876). Thus, we
explained in Lewis that ‚indecent liberties‛ is a phrase that
passes constitutional muster only if it is taken to refer to conduct
on par with the specific, enumerated acts mentioned in the
statute. See 2014 UT App 241, ¶ 15.

Without this important narrowing of the term, a
juror might reasonably assume that this catch-all
phrase covered actions that are less serious than
the specifically prohibited conduct—including
actions that are merely socially or morally
reprehensible or that strike us, subjectively, as
being indecent in the sense of being totally
inappropriate.

Id.

¶18 And so we arrive at ineffective assistance. ‚To prove that
counsel’s performance was deficient, a claimant ‘must show that
counsel’s representation fell below an objective standard of
reasonableness’‛ as ‚evaluated ‘under prevailing professional
norms.’‛ Landry v. State, 2016 UT App 164, ¶ 25, 380 P.3d 25
(quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
Although we ‚‘indulge a strong presumption’‛ of ‚‘reasonable
professional assistance,’‛ if the claimant demonstrates ‚there is
no way that counsel’s actions ‘might be considered sound trial
strategy’‛ then the presumption is overcome. Id. (quoting
Strickland, 466 U.S. at 689).

¶19 Neglecting to provide an instruction as to the meaning of
‚indecent liberties‛ amounted to a failure to instruct the jury as
to all the essential elements of the offense, because without this
knowledge the jury would not know what sort of conduct

20121040-CA 8 2017 UT App 78
 State v. Ray

constituted ‚indecent liberties‛ in the legal sense. See Lewis, 2014
UT App 241, ¶ 15. The definition of ‚indecent liberties‛—
‚activities of the same magnitude of gravity as [those]
specifically described in the statute,‛ i.e., ‚touching the vagina,
anus, buttocks, or breasts‛—is as much an element of the offense
of forcible sexual abuse as the enumerated acts. Id. ¶ 11 (citation
and internal quotation marks omitted). And just as failure to
instruct the jury as to the elements of the charged offense would
constitute reversible error, see Bird, 2015 UT 7, ¶ 14, in the
context of the case before us, the failure to request an instruction
explaining the element of ‚indecent liberties‛ constitutes
objectively unreasonable assistance by counsel, see Lewis, 2014
UT App 241, ¶¶ 10–13.

¶20 As we see it, defense counsel had two basic options
consistent with his duty to render effective assistance. Either he
could have requested an instruction defining ‚indecent
liberties,‛ see, e.g., Model Utah Jury Instructions 2d CR1601
(Advisory Comm. on Criminal Jury Instructions 2014),
http://www.utcourts.gov/resources/muji/ [https://perma.cc/D2H
S-UDZ9], or he could have requested that the problematic phrase
be excised from the elements instruction,5 see Lewis, 2014 UT App

5. The latter course might have been the most logical one in this
case, as the State did not argue that Ray was guilty of forcible
sexual abuse because he took indecent liberties with Victim. The
State overtly relied exclusively on the particular acts enumerated
in the statute, specifically contending that he had touched
Victim’s breast and/or vagina. Although the solution to this
problem is easy enough on a case-by-case basis, albeit often at
the price of a reversal and retrial, we believe the Legislature
would be well-advised to revisit Utah Code sections 76–5–404(1)
and 76-5-404.1(2) and fix this problem. It could do so by excising
the vague phrase from the statutes, by including in the
appropriate statute the definition of the phrase that has been
judicially embraced, or by spelling out the specific other acts the
Legislature determines should also constitute forcible sexual
(continued…)

20121040-CA 9 2017 UT App 78
 State v. Ray

241, ¶ 9 n.7. But under the circumstances, ‚*t+here was no
conceivable tactical benefit to [Ray] for trial counsel to allow a
jury instruction that described the offense in a manner that is
inconsistent with the narrow way in which Utah courts have
interpreted the applicable statute,‛ see id. ¶ 13, leaving the jury to
employ its own common sense view of what ‚indecent liberties‛
are, a view that likely encompasses a much wider range of
conduct than is contemplated in the legal sense.

II. Trial Counsel’s Deficient Performance Prejudiced Ray.

¶21 ‚Performance is deficient when it falls below an objective
standard of reasonableness. . . . A defendant suffers prejudice
when, absent the deficiencies of counsel’s performance, there is a
reasonable likelihood that the defendant would have received a
more favorable result at trial.‛ State v. Hards, 2015 UT App 42,
¶ 18, 345 P.3d 769.

¶22 In this case, several circumstances compel a conclusion of
prejudice. First, the jury acquitted Ray as to a count of object
rape and was unable to reach a verdict as to two forcible sodomy
counts, while convicting him only on the forcible sexual abuse
count. This means the jury credited Victim’s trial testimony that
Ray never digitally penetrated her vagina, and it means that one
or more jurors did not believe Victim’s testimony that Ray
performed oral sex on her and she on him. Although the sexual
abuse conviction could mean that the jury believed Victim’s
testimony that Ray put his hand down her pants, touching the
outside of her vagina, and up her bra, touching her breast, it is
just as likely, especially given Victim’s credibility issues, that the
jury rejected this testimony, too, but concluded that a twenty-
eight-year-old married man passionately kissing a fifteen-year-
old while both were naked is ‚socially or morally reprehensible

(…continued)
abuse. See Utah Code Ann. § 76-5-404(1) (LexisNexis 2012); id.
§ 76-5-401.1(2) (Supp. 2016).

20121040-CA 10 2017 UT App 78
 State v. Ray

or . . . [otherwise] totally inappropriate‛—conclusions with
which one cannot reasonably argue—and thus constituted the
taking of ‚indecent liberties.‛ See State v. Lewis, 2014 UT App
241, ¶ 15, 337 P.3d 1053.

¶23 Second, Victim’s credibility issues only increase the
possibility that the jury convicted Ray based on moral
condemnation and social disapprobation rather than the narrow
terms of the law. Mills v. Maryland, 486 U.S. 367, 377 (1988)
(stating that ‚*u+nless we can rule out the substantial possibility
that the jury may have rested its verdict on *an+ ‘improper’
ground, we must remand‛). Because we cannot know how the
jury decided given the evidence before it and the obvious
skepticism with which it apparently viewed Victim’s testimony
in general, and because it may well have based its decision on
improper grounds, ‚the general effect of [this] uncertain verdict
is fatal to it.‛ See Brannigan v. People, 24 P. 767, 771 (Utah 1869).
‚No verdict so defective . . . in substance can be corrected or
changed by presumptions against [Ray+.‛ See id. The sum total of
these circumstances ‚mak*es+ it much more likely that [the jury]
would have reached a different conclusion but for trial counsel’s
ineffectiveness,‛ and we must, therefore, reverse and remand for
a new trial.6 See Landry v. State, 2016 UT App 164, ¶ 43, 380 P.3d
25.

III. Victim’s Testimony Was Not ‚Inherently Improbable.‛

¶24 In view of our reversal, we consider a separate issue Ray
presents. Ray argues that Victim’s lack of credibility—due
largely to what he characterizes as her constantly changing
account—amounts to ‚inherent improbability‛ as defined in

6. Because we reverse Ray’s conviction and remand for a new
trial on the strength of his ineffective-assistance/jury-instruction
claim, we do not reach the balance of the issues Ray raises on
appeal, with the exception of the question answered in section
III.

20121040-CA 11 2017 UT App 78
 State v. Ray

State v. Robbins, 2009 UT 23, 210 P.3d 288, entitling him to a
reversal of his conviction without the State having the
opportunity to retry him. We disagree and take this opportunity
to explain our understanding of the Robbins doctrine.

¶25 Robbins was something of a unique case, combining
distinctly incredible testimony with what the Supreme Court
termed ‚patently false statements.‛ Id. ¶ 22. ‚Inherent
improbability‛ is a distinction reserved for such comparatively
rare instances; it does not apply more generally to cases
involving a victim’s incredibility—not even significant
incredibility. For example, an ‚inherent improbability‛ might be
found if the testimony offered ‚flies in the face of
uncontroverted physical facts‛ or well-known physical
phenomena. See Haarstrich v. Oregon Short Line R. Co., 262 P. 100,
104 (Utah 1927) (noting that testimony in contradiction of
physical facts ‚is not substantial evidence‛). Cf. Blomberg v.
Trupukka, 299 N.W. 11, 13 (Minn. 1941) (‚The operation of the
law of gravity is a matter of such common knowledge that all
persons of ordinary intelligence and judgment, even if they are
illiterate, are required to take notice of it.‛). Another such
instance is patent falsehood, the variant of improbability at issue
in Robbins, where the victim referred to a possible eavesdropper
located in a closet that she claimed to be within a room that did
not, in fact, have a closet and also ‚made up a story about a
hearing problem.‛ See 2009 UT 23, ¶ 23. In all other instances we
can envision, however, we defer to the jury to sort out fact from
fiction, because ‚the jury serves as the exclusive judge of . . . the
credibility of witnesses.‛ State v. Johnson, 2015 UT App 312, ¶ 10,
365 P.3d 730 (citation and internal quotation marks omitted).
This deference is appropriate in the fairly common situation of a
victim whose story changes over time or who never seems to tell
her story the same way twice, as in this case. Such inconsistency
clearly creates a credibility question for the jury to resolve, but it
does not trigger the applicability of the ‚inherent improbability‛
doctrine.

20121040-CA 12 2017 UT App 78
 State v. Ray

¶26 As we recently noted, ‚In judging whether testimony is
inherently improbable, a witness’s inconsistency is not
dispositive.‛ State v. Crippen, 2016 UT App 152, ¶ 13, 380 P.3d 18.
Indeed, this distinction between Robbins-esque circumstances
and more routine witness inconsistency is hardly new. As early
as 1955 the Utah Supreme Court explained that

[w]hile it is true that if a witness willfully testifies
falsely as to any material matter the jury is at
liberty to disbelieve the whole of his testimony if
they so desire, it does not necessarily follow that
they are obliged to do so. . . .

It is the duty of this court to leave the
question of credibility of witnesses to the jury or
fact trier . . . . As has often been said, the jury is in a
favored position to form impressions as to the trust
to be reposed in witnesses. They have the
advantage of fairly close personal contact; the
opportunity to observe appearance and general
demeanor; and the chance to feel the impact of
personalities. All of which they may consider in
connection with the reactions, manner of
expression, and apparent frankness and candor or
want of it in reacting to and answering questions
on both direct and cross-examination in
determining whether, and to what extent,
witnesses are to be believed. . . .

It is not a prerequisite to credibility that a
witness be entirely accurate with respect to every detail
of his testimony. If it were so, human frailties are
such that it would be seldom that a witness who
testified to any extent could be believed. . . . An
examination of the record here does not show that
facts testified to would be impossible in the light of

20121040-CA 13 2017 UT App 78
 State v. Ray

known physical facts, or so contradictory or
uncertain as to justify a conclusion that . . . the
witnesses were entirely ‘unworthy of belief’ . . . .

Gittens v. Lundberg, 284 P.2d 1115, 1117 (Utah 1955) (emphasis
added). Accord State v. Prater, 2017 UT 13, ¶ 38 (explaining that in
Robbins, it ‚was the inconsistencies in the child’s testimony plus
the patently false statements the child made plus the lack of any
corroboration that allowed this court to conclude that
insufficient evidence supported Robbins’s conviction‛)
(emphasis in original).

¶27 Although the jury apparently disbelieved Victim as to
many aspects of her testimony—it could not reach a verdict on
two of the four charges against Ray and acquitted him of a
third—it likely believed other aspects of her testimony. The
jury’s finding of Ray’s guilt as to the remaining charge at least
suggests this possibility, see Gittens, 284 P.2d at 1117 (‚The jury
may evaluate the testimony of witnesses and accept those parts
which they deem credible, even though there be some
inconsistencies.‛), although the likelihood that the
misapplication of ‚indecent liberties‛ explains its single guilty
verdict admittedly makes that proposition questionable. Again,
issues of credibility, as opposed to inherent improbability, are
for the jury to decide, not this court. See id.; State v. Johnson, 2015
UT App 312, ¶ 10, 365 P.3d 730. Accordingly, we reject Ray’s
argument that we should simply vacate his sexual abuse
conviction on the ground of inherent improbability.

CONCLUSION

¶28 For the reasons explained above, we reverse Ray’s
conviction for forcible sexual abuse and remand for a new trial
or such other proceedings as may now be appropriate.

20121040-CA 14 2017 UT App 78