State v. Ray

397 P.3d 817

STATE of Utah, Appellee,

v.Eric Matthew RAY, Appellant.

No. 20121040-CA

Court of Appeals of Utah.

Filed May 4, 2017

Margaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant.

Sean D. Reyes and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee.

Judge Gregory K. Orme authored this Opinion, in which Judges Stephen L. Roth and Jill M. Pohlman concurred.

Opinion

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.

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 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 "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 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.

¶ 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, 365 P.3d 730.

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....