State v. Mottaghian

504 P.3d 773

STATE of Utah, Appellee,

v.Borzin MOTTAGHIAN, Appellant.

No. 20200199-CA

Court of Appeals of Utah.

Filed January 21, 2022

Rehearing Denied February 10, 2022

Ann M. Taliaferro, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

Opinion

HARRIS, Judge:

¶1 Borzin Mottaghian created an internet advertisement seeking women willing to participate in "paid anatomy research" for the development of "medical devices." The advertisement indicated that both anal and vaginal measurements would be taken. Two women, under the impression that Mottaghian was a medical professional engaged in legitimate medical research, eventually agreed to participate, and Mottaghian subjected both of them to anal and vaginal probes. But Mottaghian was not a medical professional and was not engaged in medical research, and the women later told police about their experience. A jury later convicted Mottaghian of various sex crimes, determining—under the totality of the circumstances—that the women had not consented to Mottaghian's behavior. Mottaghian now appeals his convictions, asserting among other things that the State failed to establish nonconsent beyond a reasonable doubt, and that his trial attorneys rendered ineffective assistance. We affirm.

BACKGROUND¹

¶2 In 2017, Mottaghian began pursuing an apparent desire to produce and sell sex toys, including a device that would be designed to simultaneously stimulate a woman's vagina and anus. Mottaghian's efforts in this regard were, charitably, in the nascent stages: he was not part of any company in a position to design or manufacture such devices, and he had no experience in the field. Indeed, at the time of the events giving rise to this case, Mottaghian was, by trade, the owner of two restaurants; although he was a law school graduate, he was not—and never had been—a medical doctor and had never possessed any kind of medical licensure.

¶3 Instead of utilizing data regarding anatomical sizing for sex toys that may have already existed in the marketplace, Mottaghian made the decision to try to obtain his own vaginal and anal measurement data. To gather this data, he placed an advertisement on Craigslist seeking women willing to participate in "anatomy research" for the development of new "medical devices," and promised to pay $200 in return for participation. The advertisement indicated that, as part of this "research," measurements would be taken of both the vaginal and anal areas. However, the advertisement did not mention or reference sex toys in any way. On at least one occasion, a woman who responded to the advertisement declined to participate once she learned that the measurements were for "adult toys."

Kelsey

¶4 At the time Mottaghian ran the advertisement, Kelsey² had recently moved back to Utah and was unemployed. To make ends meet, she was staying with various friends, living off her savings, and picking up random "jobs and gigs" from Craigslist to further support herself. During one of her searches for work on Craigslist, Kelsey stumbled upon the advertisement. There, she read that "[m]easurements are needed at the vaginal and anus areas" and that the participants would be paid a "$100 flat fee for vaginal test" and an "[e]xtra $100 flat fee for anus test." Because the advertisement mentioned "anatomy research" and "medical devices," Kelsey presumed that the measurements would be taken by a doctor in a "medical facility." Mottaghian himself confirmed this presumption by telling Kelsey in an email that the procedure would be conducted by "[t]he owner of the company" who "is the engineer and doctor." Mottaghian, however, did not identify himself in this message and instead signed the email as "Max." Responding to "Max," Kelsey scheduled an appointment. The only additional information she received prior to her appointment was an address, parking information, guidance on what to wear, and instructions to "shower [her] vaginal and anus area" prior to the appointment.

¶5 On the day of the appointment, Kelsey arrived at the designated location. There, she was greeted by a receptionist who led her to the room where the measurements were to be taken. Mottaghian opened the door to the room and showed her in, introducing himself as Borzin Mottaghian and not as "Max." When Kelsey entered the room, she noticed that "it wasn't like your typical doctor's office type of a thing"; it had a couch, desk, and a black massage table. And unlike most medical facilities, there was no sanitary paper covering the table.

¶6 Upon questioning by Kelsey about the type of products he was creating, Mottaghian made no mention of sex toys and instead stated that he was "developing a catheter to be used on patients during surgeries," but insisted that he "couldn't give specific details" because of "trade secrets." He also stated that his company "had a warehouse" in another state that served as "their headquarters," and that he frequently ran "tests" in Utah and sent the "research back to" the "other employees" at "headquarters," where the "prototypes" were made. He then informed Kelsey that he would be taking measurements of both her vagina and anus to ensure that the products he was developing were comfortable for the patients who would be using them in surgery. After further explaining the product and procedure, Mottaghian had Kelsey sign a nondisclosure agreement and then instructed her to "disrobe from the waist down and lay on the table." Mottaghian did not leave the room while Kelsey disrobed, did not provide her with a gown, and did not cover the massage table with any form of sanitary paper before she lay down.

¶7 Mottaghian then asked Kelsey for permission to take a photograph of her vagina to keep in the company's "records." Kelsey agreed, and Mottaghian took the picture on a mobile phone. After taking the picture, he brought over a tray of instruments that he would be using to take the measurements. Mottaghian explained that after applying lubricant, he would insert metal "rods" to the point of discomfort and, when Kelsey told him to stop, he would remove the rod slightly to a bearable depth and then take the measurement from that point. Mottaghian explained that he would be taking measurements both vaginally and anally in several different positions.

¶8 Mottaghian began by using his fingers to apply lubricant to the outside of Kelsey's vagina and to the rod. He then told her he was "going to insert [the rod] in" and to let him know when it got uncomfortable. He proceeded to insert the rod into her vagina two times, removing the rod to take the measurement when Kelsey indicated she was uncomfortable. For the next two measurements, Mottaghian changed his hand position so that his thumb was resting on her clitoris. He then performed anal measurements in a similar manner, with his hand continuing to rest on Kelsey's clitoris for the duration of the measurements.

¶9 After Mottaghian finished taking these measurements, he had Kelsey switch positions for additional measurements. He again applied lubricant to the outside of her vagina, but this time inserted his finger into her vagina and rubbed her clitoris. He stated he was doing this because she needed to "relax ... because the measurements aren't as accurate unless you're relaxed." After he had done this for some time, Mottaghian began using the rod to measure her vagina in the new position. This time, however, instead of removing the rod between measurements, Mottaghian began moving the rod in and out of Kelsey's vagina in a manner that she perceived as similar to intercourse, telling her she was still too tense and this would help her relax. Mottaghian took three or four measurements in this position, moving the rod in and out consistently between each measurement. He also applied lubricant and inserted his fingers into her anus while rubbing her clitoris in a circular motion. He proceeded to take anal measurements, again consistently moving the rod in and out between each measurement.

¶10 Mottaghian then instructed Kelsey to return to the first position "because after all of this [she] was probably more relaxed than [she] had been in the beginning" and he could thus obtain more accurate measurements than he originally had. Mottaghian again inserted his fingers into her vagina and rubbed her clitoris; at this point, Kelsey told him that "this feels a little bit sexual in nature and I'm uncomfortable." Mottaghian responded that it was "normal to feel that way because I am inside of your sexual organs" and that "if you feel like you're going to have an orgasm, that's okay, it will help you relax, and it wouldn't be the first time it has happened." Kelsey was surprised and "scared" by Mottaghian's dismissive answer, and thought it was far too casual to be a doctor's response. Mottaghian then took additional measurements of Kelsey's vagina, this time moving his thumb on her clitoris in a more "vigorous" manner, almost as if he were now "trying to make [her] orgasm." He also resumed inserting the rod in and out of her vagina, as he had done previously, and began inserting his fingers and making "circular motions" while maintaining contact with her clitoris. Mottaghian then followed the same routine for the final measurement of her anus: inserting his fingers, inserting the rod, and "rubbing" her clitoris.

¶11 When the procedure ended, Mottaghian gave Kelsey an envelope with $200, thanked her, and told her that when the "prototypes" arrived, she could return and test them for an additional $200. After leaving the building, Kelsey called two friends to discuss the experience she just had, and to seek advice on whether the nondisclosure agreement she had signed prevented her from reporting the incident to police. After being advised that the agreement did not prevent her from reporting the...