State v. Lewis, 337 P.3d 1053

Defendant David Lewis was charged with sexual abuse of a child (second-degree felony) for allegedly touching a 13-year-old girl's breasts and vagina, and with attempted sexual abuse (third-degree felony) for alleged conduct toward an 11-year-old.
The 13-year-old testified Lewis told her she was "sexy" and touched her breast and vagina over clothing; she pulled his hand away and later reported the conduct.
Lewis denied the sexual-abuse allegations, admitting only that he told the girl she was pretty, asked to see her stomach, and poked her stomach.
Jury instructions tracked the statute but included the phrase "otherwise took indecent liberties" without a legal definition; trial counsel objected only to surplus language about "bodily pain."
The jury acquitted on the attempted-abuse count but convicted on the sexual-abuse count. Lewis moved for a new trial, arguing ineffective assistance of counsel for failing to object to the undefined "indecent liberties" language; the trial court denied relief.
The Utah Court of Appeals found counsel deficient for failing to seek removal or a legal definition of "indecent liberties," and that prejudice was reasonably probable because jurors could convict based on conduct (e.g., poking a bare stomach) that is not legally an "indecent liberty." The conviction was reversed and remanded for new trial.

Issue	State's Argument	Lewis's Argument	Held
Whether trial counsel was ineffective for failing to object to the jury instruction's inclusion of "indecent liberties" without a legal definition	Counsel’s omission was not prejudicial; any instructional errors were harmless	Counsel should have objected or requested the statutory/ judicial definition; omission was deficient and prejudicial	Counsel was deficient for not removing or defining "indecent liberties," and the omission prejudiced Lewis; reverse and remand for new trial
Whether ‘‘indecent liberties’’ requires a limiting definition to avoid vagueness	Instruction was adequate as given	The term is narrower under Utah law and must be defined for the jury	Court held the term is legally narrower and the jury should have been instructed on that definition
Whether the flawed instruction had a conceivable tactical basis	State implied no clear prejudice from counsel’s choice	No conceivable tactical reason for failing to seek removal/definition	Court found no conceivable tactical basis for counsel’s failure
Whether prejudice existed under Strickland standard	Argued trial outcome would not likely change	Argued a reasonable probability of different outcome if properly instructed	Court held reasonable probability of different outcome; prejudice established

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel)
In re J.L.S., 610 P.2d 1294 (Utah 1980) (interpreting "indecent liberties" by ejusdem generis as requiring similar magnitude of gravity)
State v. Balfour, 198 P.3d 471 (Utah Ct. App. 2008) (confirming narrow interpretation of "indecent liberties")
State v. Brandley, 972 P.2d 78 (Utah Ct. App. 1998) (standard of review for ineffective-assistance claims on new-trial denial)
State v. Bluff, 52 P.3d 1210 (Utah 2002) (framing factual recitation standard on appeal)