State v. Ray, 469 P.3d 871

Eric Ray (28) met R.M. (15) after texting her by mistake; during a multi-day visit he engaged in kissing, touching of breasts and genital areas, and oral sex according to R.M.’s testimony and some corroborating electronic messages from Ray.
State charged Ray with object rape, two counts of forcible sodomy, and forcible sexual abuse; jury convicted Ray of forcible sexual abuse, acquitted on rape, and deadlocked on sodomy counts.
The jury instruction for forcible sexual abuse listed alternative means: (a) touching specified body parts or (b) "otherwise took indecent liberties with another," but the court did not define "indecent liberties." Trial counsel did not object to that omission.
On appeal the Utah Court of Appeals held counsel was ineffective for failing to object or request clarification/excision of "indecent liberties," reversed the conviction, and ordered a new trial.
Utah Supreme Court granted certiorari and reversed the court of appeals, holding counsel’s failure to object was not objectively unreasonable under Strickland because (i) the State focused on the specific-touching variant, (ii) the defense strategy attacked credibility/consent, and (iii) defining "indecent liberties" could have broadened the State’s case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel's failure to object to an undefined jury instruction term ("indecent liberties") constituted ineffective assistance under Strickland	The State: counsel’s omission was reasonable; correction could have advantaged the State and counsel reasonably chose not to highlight the alternative theory	Ray: counsel was deficient for not objecting or requesting a definition/excision of "indecent liberties," leaving an essential element undefined	Utah Supreme Court: Counsel's performance was not deficient — a reasonable professional could avoid objecting to keep focus on the State’s specific-touching theory and not expand the State’s options; conviction reinstated

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong ineffective-assistance test: deficient performance and prejudice)
Roe v. Flores-Ortega, 528 U.S. 470 (2000) (counsel’s reasonableness judged considering all circumstances; not every omission is per se deficient)
Yarborough v. Gentry, 540 U.S. 1 (2003) (inadvertent omissions do not automatically entitle a defendant to relief)
In re J.L.S., 610 P.2d 1294 (Utah 1980) ("indecent liberties" must connote conduct of similar gravity to enumerated touching to avoid vagueness concerns)
Bullock v. Carver, 297 F.3d 1036 (10th Cir. 2002) (discusses presumption that counsel’s conduct may reflect sound strategy and how to analyze it)
State v. Clark, 89 P.3d 162 (Utah 2004) (characterizes prior Utah phrasing that defendant must overcome presumption by showing "no conceivable tactical basis")