STATE OF UTAH, Appellee, v. BORZIN MOTTAGHIAN, Appellant.
No. 20200199-CA
THE UTAH COURT OF APPEALS
January 21, 2022
2022 UT App 8
Fourth District Court, American Fork Department; The Honorable Robert C. Lunnen; No. 171101546
Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
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
¶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.
¶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 incident, Kelsey called police and, at their suggestion, went to a hospital for a sexual assault examination. Detectives then began to investigate the situation.
Caroline
¶12 Around the same time, Caroline3 also responded to the advertisement and volunteered to participate. Caroline was a graduate student who occasionally visited Craigslist to search for short-term jobs. Before agreeing to participate, Caroline also engaged in an email conversation regarding the advertisement with a person identifying himself as “Max,” and scheduled an appointment for the day after Kelsey‘s. When Caroline arrived, the receptionist took her to meet Mottaghian, who introduced himself as “Max,” the person she had been communicating with. He made no mention of sex toys, and instead explained that the research he was conducting was for the production of tampons and catheters, but that he could not tell her “the companies that he was working for because that was confidential.” Mottaghian had Caroline sign a nondisclosure agreement, and explained that, as part of the agreement, her identity would remain private and she would be referred to only as participant number 105, a statement she interpreted as meaning that 104 other people had previously participated.
¶13 Mottaghian explained the procedure to Caroline in much the same way he had explained it to Kelsey. He told her that he would be taking her measurements in both “relaxed and neutral” positions, that she should tell him when she was in pain, and that he would remove the measuring rod slightly to take the measurement when she indicated discomfort. He also told her that he would “help [her] relax” if she needed to, though Caroline did not understand what that meant at the time. Mottaghian asked her if she had ever had vaginal or anal sex, to which she replied that she had not. He then told her that her lack of sexual experience might extend the length of the procedure and cause it to be more painful, but that it was “fine that [she was] a virgin” because he needed “all people to participate in this.”
¶14 Mottaghian instructed Caroline to disrobe from the waist down and to position herself on the table. As with Kelsey‘s procedure, Mottaghian did not provide Caroline with a gown or cover the table with any sort of sanitary paper, and he remained in the room while she removed her clothes. After
¶15 Mottaghian then told Caroline he needed to get “relaxed measurements” and, without any further explanation, inserted his fingers into her vagina and placed a finger on her clitoris. He told her he was trying to “loosen [her] up . . . because [she] was a virgin [and] was really tight and [she] needed to be looser.” After removing his fingers, Mottaghian began repetitively moving the rod in and out of Caroline‘s vagina until she was “loose enough” for “relaxed” measurements. After taking vaginal measurements, he inserted his finger into her anus, moving it in and out; he then did the same with the rod. When Mottaghian finished inserting the rod into Caroline‘s anus, she was “in a lot of pain” and told Mottaghian that she needed to go to the restroom. He responded by reassuring her that they were “almost done” and if she stayed, he could “do it quickly.” Caroline, however, was “adamant” about going to the restroom because “in that moment [she] didn‘t think [she] could keep doing it.”
¶16 After Caroline arrived in the restroom, she began crying and “trying to comprehend . . . the pain.” She tried to “get the courage to go back in there,” not wanting to be a “quitter,” and thinking of all the other women that had apparently participated before her, thinking that it was “[her] fault that it was so painful, and [she] just needed to . . . deal with it.” She also reasoned that if she stopped the procedure at that point, everything she “had just gone through would be useless because they‘re not going to use research that‘s not completed.” She therefore decided to return to the room and complete the study.
¶17 When Caroline returned from the restroom, Mottaghian instructed her to once again take off her pants and get back onto the table. He commented that “[she] had really tightened up and . . . that he needed to get [her] loose again.” He attempted this by once again inserting his fingers and the rod into her vagina and anus. He then told Caroline “he needed to get a measurement with both of them at the same time,” and proceeded to insert rods into her vagina and anus simultaneously. Mottaghian repeatedly told her to “try to relax” and that she was “really tense,” but all Caroline could do was “breathe,” as “it was just really painful having both of the metal rods in.”
¶18 After Mottaghian had finished inserting the rods into Caroline‘s vagina and anus, he instructed her to move to a different position and again inserted the rods into both her vagina and anus. He also took measurements with both rods inserted simultaneously into her vagina and anus from this position. At this point, Caroline was “in a lot of pain and . . . was shaking and crying,” and she told Mottaghian she “hurt too bad and to stop.” She then put her face down on the table and continued to cry, at which point Mottaghian told her she “looked more relaxed” and began inserting the rods again. For the last set of measurements, Mottaghian instructed Caroline to assume her previous position, at which point he stated she had “closed up again” and “he had to loosen [her] back up by putting them in and out and moving them around.” He then informed her she “still wasn‘t loose enough, so he started using his hand” and “started touching [her] clitoris again.” Caroline told Mottaghian that she “didn‘t like that,” but he nonetheless continued. When he finished with the measurements, he handed her an envelope with $200 and instructed her “to go home and shower as soon as [she] can.” At that point, Caroline left, and made no report to the police—at least not at that time—about the incident.
The Undercover Officer
¶19 The following week, Caroline received a phone call from a detective informing her that her name had come up in a criminal investigation. That same day, she spoke to detectives (the same detectives who were
¶20 An undercover officer, posing as “Jenna,” then went to meet Mottaghian. The officer recorded the interaction. Mottaghian explained to “Jenna” that his “clients” were “big names” that she could “see on the shelves,” but that he could not “disclose” their identities, and that “there‘s a 90 percent chance that you actually have used one of my products.” He explained that he “engineer[s] the product for them” and that “they get to say it‘s theirs.” He then explained the procedure to her, stating that he would be taking measurements of her vagina and anus and that he would be using “surgical lubricant” as part of the process. The officer asked Mottaghian if he was the doctor or if someone else would be coming in to perform the procedure, to which Mottaghian replied, “Just me.” Shortly thereafter, Mottaghian handed the officer a nondisclosure agreement to sign, and the officer stated, “All right. Let‘s do this.” At that point, detectives who had been waiting outside the door came in, stopped the procedure, and arrested Mottaghian.
Legal Proceedings
¶21 After investigation, the State charged Mottaghian with twelve counts of object rape, two counts of forcible sexual assault, two counts of attempted object rape, and one count of attempted forcible sexual abuse. The State later amended the information, opting to charge Mottaghian with fewer counts: four counts of object rape (two regarding Kelsey and two regarding Caroline), two counts of forcible sexual abuse (one regarding Kelsey and one regarding Caroline), and two counts of attempted object rape (regarding the undercover officer posing as “Jenna“). Mottaghian pled not guilty to these charges and the case proceeded to a four-day jury trial.
¶22 At trial, the State presented testimony from many witnesses, including Kelsey, Caroline, and the undercover officer—who testified about the events described above—and several other law enforcement officers, who testified about their investigation into Mottaghian‘s actions.
¶23 The State also elicited testimony from Mottaghian‘s close friend and business partner (Friend), who had begun to help Mottaghian—starting just days before the appointments with Kelsey and Caroline—design a logo and create a website for a new “company.” When Friend asked Mottaghian what the new company was for, Mottaghian sent him a picture of a vagina (which the State alleged was the one he took of Kelsey) and told him that he was planning to sell sex toys. Mottaghian also told Friend that he was conducting “research” that he claimed he needed in order to develop original sex toys for sale on the website. Mottaghian also texted Friend—after the incident with Caroline—that he had “just finished with a virgin Mormon girl” and, in response to a question about whether the participant was “comfortable,” stated that his “techniques sooth[e] them.” In response to this message, and after learning more about the “research” Mottaghian was conducting, Friend recommended that Mottaghian stop the appointments, telling him that, from an “outside perspective,” his “research” looked “weird.” Friend suggested that, if Mottaghian was intent on producing sex toys, he should use already-existing measurement data.
¶24 The State also presented testimony from Mottaghian‘s ex-wife, who had been married to Mottaghian at the time of the events in question. She testified that after Mottaghian‘s arrest, she saw him create a “diagram of a . . . tampon” and then backdate it to make it appear as if it had been
¶25 Mottaghian defended the case primarily by asserting that Kelsey and Caroline had volunteered to participate in activity that they knew would involve vaginal and anal probes, and that the State had therefore failed to prove that they had not consented to the events. Because his defense primarily centered around consent, Mottaghian did not contest that Kelsey and Caroline had been subjected to vaginal and anal probes and—because Mottaghian elected not to testify in his own defense—no witness contradicted Kelsey‘s and Caroline‘s accounts of the penetrations and touches that occurred in the examination room.
¶26 At the close of the State‘s case, Mottaghian moved for a directed verdict on all counts. With regard to the six counts involving Kelsey and Caroline, Mottaghian argued that the State had presented insufficient evidence to prove nonconsent, asserting that the “two complaining witnesses did in fact get what they signed up for, knowingly.” And with regard to the two counts involving the undercover officer, Mottaghian argued that the State had not proved that he had taken a “substantial step” toward commission of the crime, as required by the attempt statute. The trial court denied these motions, concluding that the State had presented sufficient evidence on both contested issues.
¶27 In his defense, Mottaghian called two witnesses: a business associate, who testified that Mottaghian had in fact spoken to him about developing tampons and catheters, in addition to adult sex toys, and one of his prior attorneys, who testified briefly that he had never been given the backdated diagram, as Mottaghian‘s ex-wife had testified. Mottaghian also vigorously cross-examined Kelsey and Caroline, attempting to establish that they had in fact consented.
¶28 In particular, while cross-examining Caroline on the second day of trial, Mottaghian‘s attorneys attempted to cast doubt on her testimony that she had cried during the procedure and at one point had told Mottaghian to stop. To make this point, counsel asked Caroline to admit that, in her various police interviews, she had made no mention of crying or of telling Mottaghian to stop, and that she had mentioned those details for the first time during her trial testimony. On redirect, the State attempted to show that Caroline had in fact mentioned those details to police in various text messages, but it soon became apparent that the messages themselves had not been disclosed to defense counsel prior to trial, even though some of them had been described in detail in one of the disclosed police reports.
¶29 Mottaghian‘s counsel then moved for a mistrial, claiming that the State had either “destroyed or did not keep” the text messages, and that counsel themselves had been ineffective for not noticing the reference to the text messages in the police report. The court called for a recess to consider the motion. During the recess, the State was able to obtain copies of the text messages from Caroline, and provided them to defense counsel. After the recess, Mottaghian‘s attorneys announced that, after “consulting with each other” during the break, they wanted to “cure [the problem] [them]selves through the examination process” by cross-examining both Caroline and the detective about the newly produced text messages. The next day, Mottaghian‘s attorneys reiterated that they had resolved to wait for the detective to testify and then, if there was still an “issue,” they would renew the motion for a mistrial, but if they perceived no outstanding issue at that juncture, they would simply withdraw the motion. Mottaghian‘s counsel was allowed to cross-examine both Caroline and the detective about the text messages, and never renewed the motion for a mistrial.
¶30 After all the evidence was presented, the trial court instructed the jury. The court gave the jurors a general unanimity instruction stating that their “verdict must be unanimous.” But no party asked for, and the court did not give, any further instruction on unanimity. With regard to consent, the court gave an instruction very similar to the Model Utah Jury Instruction regarding consent. See Model Utah Jury Instructions 2d CR1615 (2020), https://www.utcourts.gov/resources/muji/inc_list.asp?action=showRule&id=44#1615
¶31 After deliberation, the jury found Mottaghian guilty as charged on all counts regarding Kelsey—two counts of object rape and one count of forcible sexual abuse—and on the forcible sexual abuse count involving Caroline. On the other four counts, the jury found Mottaghian guilty of lesser-included offenses: sexual battery (instead of object rape) on the two other counts involving Caroline, and attempted sexual battery (instead of attempted object rape) on the two counts involving the undercover officer. The court later sentenced Mottaghian to prison on all counts, with the sentences on the two object rape counts to run concurrently, but the sentences on all other counts to run consecutively to the object rape counts.
ISSUES AND STANDARDS OF REVIEW
¶32 Mottaghian now appeals and presents two main issues. First, he argues that the State presented insufficient evidence, in various particulars, to support a conviction on any of the counts charged. As part of this argument, he asserts that the trial court erred when it denied his motions for a directed verdict. “We review a trial court‘s ruling on a motion for directed verdict for correctness.” State v. Carrick, 2020 UT App 18, ¶ 22, 458 P.3d 1167 (quotation simplified). “In reviewing the denial of a motion for directed verdict based on a claim of insufficiency of the evidence, we will uphold the trial court‘s decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.” Id. (quotation simplified).
¶33 Second, Mottaghian asserts that his trial attorneys, in various ways, rendered ineffective assistance. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).
ANALYSIS
I
¶34 Mottaghian argues that the State presented insufficient evidence to support his convictions on all counts, and claims that the trial court erred—in two main ways—when it denied his various motions for a directed verdict. First, with regard to the six counts relating to Caroline and Kelsey, Mottaghian asserts that the State failed to establish a lack of consent beyond a reasonable doubt. Second, with regard to the two counts relating to the undercover officer, he asserts that he did not take a “substantial step” toward commission of the crime, as required by the attempt statute. We address these arguments in turn.
A
¶35 Mottaghian first argues that the State presented insufficient evidence to support a determination that Kelsey and Caroline did not consent to Mottaghian‘s various penetrations and touches. Specifically, Mottaghian argues that, because both Kelsey and Caroline knew that vaginal and anal measurements were to be taken as part of the “research,” they consented to all of Mottaghian‘s actions, and that no reasonable jury could have concluded otherwise. We disagree.
¶36 The governing statute regarding consent provides that a sexual act “is without consent of the victim under any of the following circumstances,” and then lists twelve specific situations, including instances where “the victim expresses lack of consent through words or conduct,” where “the actor overcomes
¶36 (...continued) consider in determining whether, under the totality of the circumstances, consent was present. Indeed, two of the twelve scenarios listed in the statute describe situations that may involve deceptive practices. See
¶36 ...
the actor is a health professional or religious counselor, . . . the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested.
¶37 This statute, though, does not purport to comprehensively “define nonconsent.” State v. Barela, 2015 UT 22, ¶ 38, 349 P.3d 676; see also id. ¶ 40 (“The statute nowhere prescribes any definition of nonconsent.“). Instead, it “merely limits the various theories of consent that might otherwise be available” by preventing “the factfinder from deeming sex to be consensual in circumstances deemed substantively out of bounds as a matter of public policy.” Id. ¶ 38 (quotation simplified). The reason the statute does not comprehensively define nonconsent is because consent, as a general rule, “is a fact-intensive, context-dependent question,” to be “decided on a case-by-case basis.” Id. ¶ 39. Thus,
to determine whether a victim has truly consented, the factfinder must pay close attention to the verbal and nonverbal cues given by the victim and to a wide range of other elements of context. These and other contextual nuances are the reason why, as a general rule, our law has long left the matter of consent in the hands of the jury.
Id. (quotation simplified); see also State v. Thompson, 2014 UT App 14, ¶ 90, 318 P.3d 1221 (stating that, in deciding whether consent was present during a particular incident, a jury is free to “consider whether the totality of the evidence supports a finding of lack of consent under its common, ordinary meaning“). The consent statute is therefore “best understood as prescribing exceptions to the general rule“—that consent is a fact-intensive question to be decided on the circumstances of each case—and “deeming certain circumstances beyond the case-by-case discretion
¶38 Utah‘s model jury instruction on this topic encapsulates these concepts. It states that “alleged sexual conduct is without consent . . . under any, all, or a combination of the following circumstances,” and then lists the twelve situations enumerated in the statute. See Model Utah Jury Instructions 2d CR1615. After setting forth each of the twelve statutory situations, the model instruction ends by stating as follows: “In deciding lack of consent, you are not limited to the circumstances listed above. You may also apply the common, ordinary meaning of consent to all of the facts and circumstances of this case.” Id.
¶39 The consent instruction that the trial court gave to the jury in this case was very similar to the model instruction. The trial court reviewed the case law, and indicated that it wanted to give a consent instruction informing jurors that “they can use any other common, ordinary meaning that they believe establishes lack of consent.” Defense counsel assured the court that the model instruction already contained that admonition, and that Mottaghian was asking the court to give a consent instruction that was similar to the model instruction. The court then gave the requested instruction, and Mottaghian makes no argument, here on appeal, that the instruction was inaccurate or improper.
¶40 In that instruction, the court stated that the State bore the burden of proving, beyond a reasonable doubt, that Kelsey and Caroline “did not consent to the alleged sexual conduct.” The instruction then listed six of the twelve circumstances set forth in the consent statute, including the scenario involving a deceptive health professional, and stated that those were “examples of lack of consent.” The court also instructed the jury that it could find “lack of consent” in “[a]ny other circumstances where you find a lack of consent when considering the common, ordinary meaning of consent.”
¶41 In evaluating Mottaghian‘s sufficiency-of-the-evidence challenge, we must keep these legal principles in mind. The question is not necessarily whether the facts of this case fit within one of the twelve scenarios enumerated in the consent statute. Of course, if the facts do fit one of those scenarios, then consent is not present. But even if the facts do not perfectly fit any of the listed scenarios, a jury may still potentially find, after considering all the evidence, that consent was not present. The overarching question is “whether the totality of the evidence supports a finding of lack of consent under its common, ordinary meaning.” See Thompson, 2014 UT App 14, ¶ 90.
¶42 Here, the State presented evidence at trial sufficient to create a question for the jury on the issue of nonconsent. In the advertisement, Mottaghian solicited volunteers to participate in “paid anatomy research” for the development of “medical devices.” He was, however, not involved in any attempt to develop medical devices. When Kelsey inquired about who would be performing the procedure, Mottaghian falsely told her that “[t]he owner of the company” who “is the engineer and doctor” would be the one doing so. He also gave the misleading impression that he worked for a legitimate research company, and falsely told Kelsey that the large company he worked for had its headquarters, as well as a warehouse, in another state. And in explaining the procedure, Mottaghian told Kelsey and Caroline, respectively (and falsely), that he was “developing a catheter to be used on patients during surgeries” and that the research he was conducting was for the production of tampons and catheters. Both Kelsey and Caroline testified that they would not have participated in the research had they known it was for the development of sex toys.6
B
¶44 Mottaghian next argues that—with respect to the counts involving the undercover officer—the State presented insufficient evidence to prove that he took a “substantial step” toward committing the crime of attempted sexual battery, and that the trial court therefore erred when it denied his motion for a directed verdict on those counts. We disagree.
¶45 A person commits the crime of sexual battery “if the person . . . intentionally touches, whether or not through clothing, the anus, buttocks, or any part of the genitals of another person, or the breast of a female person, and the actor‘s conduct is under circumstances the actor knows or should know will likely cause affront or alarm to the person touched.”
¶46 Our legislature has explained that “conduct constitutes a substantial step if it strongly corroborates the actor‘s mental state.”
¶47 Here, the undercover officer told Mottaghian that she was interested in participating in the same medical research procedures that Kelsey had participated in—procedures that by definition included taking “measurements” of her anus and vagina. Mottaghian scheduled an appointment for her to participate in those procedures. When she arrived at the appointment, Mottaghian explained the procedures to her, stating that he would be taking measurements of her anus and vagina and that he would be using “surgical lubricant” as part of the process. The officer then asked Mottaghian if he was the doctor or if someone else would be coming in to perform the procedure, to which Mottaghian replied, “Just me.” Shortly thereafter, Mottaghian handed the undercover officer a nondisclosure agreement to sign, and the officer stated, “All right. Let‘s do this.” At that point, the process was interrupted by other police officers waiting outside the door.
¶48 In our view, these actions easily qualify as a “substantial step” toward commission of the relevant crime. Mottaghian‘s actions were significant, and constitute more than mere solicitation or preparation. A person who posts an advertisement, schedules an appointment, explains to the person that he is about to penetrate her anus and vagina and take measurements, and hands her a nondisclosure agreement to sign has taken tangible overt actions that strongly indicate intent to commit the crime. Mottaghian was ready and prepared to begin the procedure when the officer said, “Let‘s do this.” Indeed, at that point, it was only a question of whether the officer was going to actually disrobe and allow him to take the measurements. Mottaghian was interrupted only by the intrusion from the other police officers. These actions clearly indicate an intent to commit the crime of sexual battery and constitute a “tangible step toward commission” of that crime. See Arave, 2011 UT 84, ¶ 30.
¶49 Thus, the State presented sufficient evidence from which a jury could find, beyond a reasonable doubt, that Mottaghian took a substantial step toward commission of the charged attempt crimes. Accordingly, the trial court did not err by denying Mottaghian‘s motion for a directed verdict on those counts.
II
¶50 Next, Mottaghian argues that his trial attorneys rendered constitutionally ineffective assistance. To establish that his attorneys were ineffective, Mottaghian must show both (1) that his attorneys’ performance was deficient, in that it “fell below an objective standard of reasonableness,” and (2) that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. “A defendant must satisfy both parts of this test in order to successfully establish ineffective assistance.” State v. Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150. Thus, “it is unnecessary for a court to address both components of the inquiry if we determine that a defendant has made an insufficient showing on one.” Id. (quotation simplified).
¶51 The first part of the test requires Mottaghian to show that his attorneys’ performance “fell below an objective standard of reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified). In evaluating the reasonableness of counsel‘s actions, courts will often look to whether the actions counsel took were motivated by trial strategy. See id. at ¶ 35 (“[T]he performance inquiry will often include an analysis of whether there could have been a sound strategic reason for counsel‘s actions.“). And while “the ultimate question is not whether there was a possible strategic reason for counsel‘s conduct, but instead whether that conduct was objectively reasonable,” see id., “[i]f it appears
¶52 If Mottaghian establishes that his trial attorneys rendered deficient performance, he must next show that he was prejudiced by that performance. “Prejudice exists when there is a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently.” Whytock, 2020 UT App 107, ¶ 28. “[A] reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceeding. Strickland, 466 U.S. at 694. And in assessing whether this standard is met, we “consider the totality of the evidence before the judge or jury and then ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 (quotation simplified). A defendant attempting to show that there was a “reasonable probability of a different outcome” faces “a relatively high hurdle to overcome.” Id. at ¶ 44.
¶53 In the present case, Mottaghian asserts that his trial attorneys rendered ineffective assistance in three distinct ways. First, he argues that his attorneys were ineffective by failing to object to the absence of a specific instruction regarding jury unanimity. Second, he argues that his attorneys were ineffective for failing to ascertain the State‘s theory of nonconsent prior to trial. And third, he argues that his attorneys were ineffective for failing to renew a motion for a mistrial based on alleged discovery violations made by the State. We address each of Mottaghian‘s arguments, in turn.
A
¶54 In his first ineffective assistance claim, Mottaghian raises a jury unanimity issue. In particular, Mottaghian argues that, because the State chose to charge him with only eight crimes but put on evidence of some fifty-eight different touches or penetrations, it was potentially unclear which touch or penetration supported each count. Mottaghian correctly points out that the jury was not given a specific (as opposed to a general) unanimity instruction, and asserts that it is therefore unknown whether all the jurors unanimously agreed to convict Mottaghian for the same actions. He therefore asserts that his attorneys rendered ineffective assistance by not requesting a specific unanimity instruction.7
¶55 Our state constitution provides that “[i]n criminal cases the verdict shall be unanimous.”
a verdict would not “be valid if some jurors found a defendant guilty of robbery committed
on December 25, 1990, in Salt Lake City, but other jurors found him guilty of a robbery committed January 15, 1991, in Denver, Colorado, even though all jurors found him guilty of the elements of the crime of robbery.”
Id. at ¶ 28 (quoting Saunders, 1999 UT 59, ¶ 60). “These are distinct counts or separate instances of the crime of robbery, which would have to be charged as such.” Id.
¶56 In State v. Alires, 2019 UT App 206, 455 P.3d 636, this court held that a jury verdict violated constitutional unanimity principles where a defendant was charged with “six identically-worded counts” of sexual abuse, the counts were not distinguished by act or by alleged victim, the victims described more than six acts that could have qualified as abuse, and the jury convicted the defendant on only two counts. See id. at ¶¶ 22–23. In that situation, “the jurors could have completely disagreed on which acts occurred or which acts were illegal,” even if they all agreed that abuse had occurred at some point. Id. at ¶ 23.
¶57 In this case, while the trial court instructed the jurors that their “verdict must be unanimous,” the jurors were not specifically instructed that they had to agree on each element of each count, including the specific criminal act—here, the specific touch or penetration—that formed the basis for each conviction. We agree with Mottaghian that this was problematic, and that under the law as it existed at the time of trial, the jury instructions were deficient in this respect.8
¶58 This problem could have been alleviated, however, if the State had identified for the jury—in closing argument, for instance—“which act supported each charge.” See id. at ¶ 22; see also State v. Santos-Vega, 321 P.3d 1, 18 (Kan. 2014) (stating that, to remedy a jury unanimity problem, “either the State must have informed the jury which act to rely upon for each charge . . . or the [trial] court must have instructed the jury to agree on the specific criminal act for each charge“), quoted with approval in Alires, 2019 UT App 206, ¶ 22; State v. Paule, 2021 UT App 120, ¶ 48 (holding that prosecutors had taken steps “to obviate any jury unanimity problem” when they “clearly identified for the jury which factual circumstance formed the basis for [the] obstruction of justice charge“), petition for cert. filed, Jan. 10, 2022 (No. 20220039). But the State did not take any such steps in this case. Thus, the deficiency that existed with the jury instructions went unaddressed, and was not resolved through any action taken by the State.
¶59 But even assuming, for purposes of our analysis, that Mottaghian‘s attorneys performed deficiently by failing to object to the absence of a specific unanimity instruction, Mottaghian‘s ineffective assistance claim can succeed only if he can demonstrate that the problem with the jury instructions mattered: that is, that there existed a reasonable probability of a different outcome had the jury been provided a specific unanimity instruction. And on that score, we agree with the State‘s position that Mottaghian has failed to demonstrate prejudice.
¶60 In support of his argument that the absence of a specific unanimity instruction prejudiced him, Mottaghian asserts that “the
¶61 First, the testimony regarding whether, when, and how the touches and penetrations occurred, as recounted by Kelsey and Caroline, went uncontested by any other witness. Indeed, Mottaghian defended the case not by asserting that some or all of the touches did not occur but, instead, by asserting that all of them were consensual. Mottaghian acknowledges, in his brief, that Kelsey and Caroline each testified to many anal and vaginal penetrations, and many clitoral touches, prior to any realization that Mottaghian‘s operation might not be legitimate. Thus, in terms of actus reus, there can be no question, on this record, that Mottaghian committed more touches prior to any point of realization than there were charges against him.
¶62 Second, the facts of this case—at least with regard to whether Mottaghian was prejudiced by the lack of a specific jury unanimity instruction—are more like State v. Percival, 2020 UT App 75, 464 P.3d 1184, and State v. Case, 2020 UT App 81, 467 P.3d 893, than they are like Alires and State v. Baugh. In Percival, the defendant was involved in an altercation at a party that resulted in the stabbing of four victims. See 2020 UT App 75, ¶¶ 2–11. Eventually, the defendant was charged with one count of attempted murder (for the most serious injuries sustained by one of the victims) and one count—and not three—of aggravated assault (for the stab wounds inflicted on the remaining three victims). Id. at ¶ 14. At the close of the evidence, the trial court instructed jurors that they could find the defendant guilty on the single aggravated assault charge only if they found, among other things, that the defendant had “caused bodily injury to [victim 2] OR [victim 3] OR [victim 4].” Id. at ¶ 17. The defendant was found guilty and appealed his assault conviction, arguing that the jury may not have been unanimous regarding which victim formed the basis for the aggravated assault verdict. Id. at ¶ 24. On appeal, we noted that “the evidence overwhelmingly established that [the three assault victims] were all stabbed during the fracas and that [the defendant] was the sole person wielding a knife,” and that on this record there existed “no reasonable likelihood that the jury would not have agreed on any one victim on” the assault charge. Id. at ¶ 29. Thus, we ultimately concluded that, “[b]ecause of the overwhelming evidence that [the defendant] stabbed [all three victims], it is unlikely that the jury would have acquitted [the defendant] on [the assault charge] had it been asked to agree on a single victim,” and that therefore the defendant had not been prejudiced by the lack of further guidance on the assault charge. Id. at ¶¶ 33–34.
¶63 In Case, police investigators discovered thirty-seven images of child pornography on the defendant‘s computers, but charged him with only seven counts of sexual exploitation of a minor. See 2020 UT App 81, ¶ 5. The defendant did not contest the State‘s assertion that all thirty-seven images
[e]ven if the jurors had been instructed that they each had to agree on which seven images satisfied each specific count set forth in the amended information, because the jury found that the State had proved beyond a reasonable doubt that [the defendant] possessed and viewed child pornography, there is little doubt the jury would have selected the seven most sexually graphic depictions of child pornography among the thirty-seven that were admitted into evidence . . . resulting in the same seven convictions for [the defendant].
Id. at ¶ 26. Thus, we ultimately concluded that the defendant had “not shown a reasonable likelihood of a different result at trial even though the court erred in instructing the jury as to unanimity.” Id.
¶64 The situation was different, however, in Alires and Baugh. In Alires, as already noted, there were two different victims, and several different touches—more than six in total—were perpetrated on each victim, even though the defendant was charged with only six counts. See 2019 UT App 206, ¶¶ 22–23. The defendant testified at trial and denied any inappropriate touches, and was ultimately convicted on only two of the “six identically-worded counts.” Id. Under those circumstances, concerns about jury unanimity were heightened because it was unclear which two touches the jury had found occurred, or even whether all the jurors had agreed on any particular touch. Id. at ¶ 23. We stated that, on that record, it was possible for the jurors to have “completely disagreed on which acts occurred or which acts were illegal,” and was therefore possible that the jury had rendered a non-unanimous verdict. Id.
¶65 In Baugh, the defendant was charged “with two counts of aggravated sexual abuse of a child: one count for abuse that allegedly occurred in 2012 and one count for abuse that allegedly occurred in 2014.” See 2022 UT App 3, ¶ 6. At trial, the defendant testified and maintained that no abuse had occurred at all, and was ultimately acquitted on the abuse count from 2012, but was convicted on the abuse count from 2014. See id. at ¶¶ 7, 10. On appeal, we noted that because the victim testified to three instances of abuse—two that occurred at a family house and one that occurred at an apartment—and because the defendant lived at both the family house and the apartment in 2014, “we cannot know if the jury agreed that the conviction for count two, the 2014 count, was for one of the two alleged acts of abuse in the family house or the alleged act of abuse in the apartment.” Id. at ¶ 21. We therefore concluded that the defendant‘s trial counsel had performed deficiently by failing to request a specific unanimity instruction stating that the jury had to agree on a specific instance of abuse for each count. Id. at ¶¶ 13–19. We also concluded that this deficient performance prejudiced the defendant because “under these circumstances our confidence in the outcome [had] been undermined.” Id. at ¶ 26.
¶66 In our view, the present circumstances are more similar to Percival and Case than they are to Alires and Baugh. Taken together, these cases support the proposition that, when the defendant does not dispute that the relevant acts (e.g., stabbings, or the existence of child pornography on a computer) occurred, and there is no meaningful and relevant basis upon which to distinguish the various acts underlying the charges, the absence of a jury unanimity instruction ultimately does not prejudice the defendant because the jury would have had no difficulty in unanimously agreeing that any one of the relevant criminal acts supported the charges. And on the facts of this case, there are enough uncontested pre-realization touches to satisfy all of the charged counts, and there is no meaningful consent-related basis to distinguish
¶67 Counts 1–3: Kelsey. Mottaghian was charged with three counts related to Kelsey: two counts of object rape (potentially, one for anal penetration and one for vaginal penetration, although the State never expressly argued it this way) and one count of forcible sexual abuse (apparently, for a non-penetrative touch). For the object rape counts, the State had to prove beyond a reasonable doubt that, among other things, Mottaghian—without Kelsey‘s consent—caused “the penetration of [Kelsey‘s] genital or anal opening . . . by any foreign object, substance, instrument, or device, . . . with the intent to arouse or gratify the sexual desire of any person.” See
¶68 As already mentioned, no witness testified at trial to contradict Kelsey‘s account of the touches and penetrations, and Mottaghian defended the case not by suggesting that the touches and penetrations did not occur but, instead, by suggesting that they were consensual. And by its verdict, the jury found that Kelsey did not consent to at least two penetrations and at least one genital touch. The verdict could, of course, reflect a finding that all the touches and penetrations were nonconsensual. But even assuming that is not the case, and even taking Mottaghian‘s argument about the realization point at face value and presuming that the jury believed that the post-realization touches were all consensual, the jury must in that event have based its verdict on pre-realization touches. And because there are more of those touches than there are counts, and because there is no meaningful way to distinguish between the various pre-realization touches from a consent standpoint, we cannot agree with Mottaghian‘s argument that there exists a reasonable probability of a different result had the jury been given a specific unanimity instruction. As in Percival, we perceive no reasonable probability that—even with a proper unanimity instruction—the jury would have failed to unanimously agree on at least one nonconsensual contact of each type to form the basis for these three counts. See 2020 UT App 75, ¶¶ 29, 33–34; see also Case, 2020 UT App 81, ¶ 26.
¶69 Counts 4–5: Sexual Battery of Caroline. Mottaghian was charged with two counts of object rape in relation to Caroline. The jury acquitted Mottaghian on these charges and instead found him guilty on two counts of the lesser-included offense of sexual battery. For that crime, the jury had to find that Mottaghian “intentionally touche[d]” Caroline‘s “anus, buttocks, or any part of [her] genitals,” and that Mottaghian‘s “conduct [was] under circumstances [he] knows or should know [would] likely cause affront or alarm” to Caroline. See
¶70 Count 6: Forcible Sexual Abuse of Caroline. Mottaghian was also charged with one count of forcible sexual abuse in relation to Caroline. For this count, as already mentioned, the State had to prove that Mottaghian—without Caroline‘s consent—touched her “anus, buttocks or any part of [her] genitals . . . with the intent to arouse or gratify the sexual desire of any person.”
¶71 Counts 7–8: The Undercover Officer. Mottaghian was charged with two counts of attempted object rape in relation to the undercover officer. The jury acquitted Mottaghian of attempted object rape, but found him guilty, on both counts, of the lesser-included offense of attempted sexual battery. For that crime, the State had to prove that Mottaghian attempted to “intentionally touch[]” the undercover officer‘s “anus, buttocks, or any part of [her] genitals,” and that Mottaghian‘s “conduct [was] under circumstances [he] knows or should know [would] likely cause affront or alarm” to the officer. See
¶72 Accordingly, even assuming that Mottaghian‘s trial attorneys performed deficiently by not requesting a specific jury unanimity instruction, Mottaghian‘s ineffective assistance claim fails for lack of prejudice. On the facts of this case, we perceive no reasonable likelihood that Mottaghian would have obtained a more favorable result had such an instruction been given.
B
¶73 In his second ineffective assistance claim, Mottaghian argues that his trial attorneys rendered ineffective assistance by not doing enough to ascertain, at an early enough point in the process, the State‘s “theory of nonconsent.” Specifically, Mottaghian argues that his attorneys’ “missed opportunities and subsequent failures to obtain or require notice of the State‘s nonconsent theory forced [him] to face trial by surprise.” We are unpersuaded by this argument.
¶74 As previously mentioned, “consent—or nonconsent, to put it in terms of an element of a crime—is a fact-intensive, context-dependent question, decided on a case-by-case basis.” State v. Barela, 2015 UT 22, ¶ 39, 349 P.3d 676. In most situations, that question is best left “in the hands of the jury.” Id. Indeed, in deciding whether consent
¶75 Under these circumstances, we cannot say that it was objectively unreasonable for Mottaghian‘s trial attorneys to not demand further information from the State regarding its theory of nonconsent. The question of whether consent exists, in any given case, is fact-dependent, and Mottaghian was well aware of the facts surrounding the incidents in question. See State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350 (stating that “the ultimate question” of whether counsel performed deficiently is whether counsel‘s actions were “objectively reasonable“).
¶76 And for the same reasons, Mottaghian has not shown that his trial attorneys’ failure to ascertain the State‘s theory of nonconsent prejudiced him. Again, his attorneys were well acquainted with the facts surrounding the incidents, and they knew that the State was arguing that those particular facts did not amount to consent. Thus, there was no reasonable probability of a more favorable outcome for Mottaghian at trial, even if his attorneys had demanded further information, because his attorneys already knew what the State‘s theory of nonconsent was. See State v. Whytock, 2020 UT App 107, ¶ 28, 469 P.3d 1150 (“Prejudice exists when there is a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently.“). Mottaghian has thus failed to prove that his attorneys rendered ineffective assistance in this regard.
C
¶77 In his final ineffective assistance claim, Mottaghian argues that his attorneys rendered ineffective assistance by failing to renew their motion for a mistrial regarding alleged discovery violations—related to text messages between Caroline and the police—committed by the State.9 We disagree, because Mottaghian has not demonstrated that his attorneys performed deficiently in this regard.
¶78 As discussed above, to prove that his attorneys rendered ineffective assistance, Mottaghian must first show that their performance was deficient, in that it “fell below an objective standard of reasonableness.” See Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Importantly, “[i]f it appears counsel‘s actions could have been intended to further a reasonable strategy, a defendant has necessarily failed to show unreasonable performance.” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871.
¶79 In this instance, Mottaghian‘s attorneys had a reasonable strategic basis for electing not to renew the motion for a mistrial. Indeed, after receiving copies of the text messages on the second day of trial and carefully considering the matter, Mottaghian‘s attorneys decided to “cure [the problem them]selves through the examination process.” And they then proceeded to execute this strategy by cross-examining both Caroline and the relevant detective regarding the contents of the text messages. This strategy appears reasonable to us under the circumstances, and we cannot say, on these facts, that it was objectively unreasonable for Mottaghian‘s trial attorneys to have proceeded as they did. Thus, Mottaghian has failed to demonstrate that his attorneys rendered ineffective
CONCLUSION
¶80 The State presented sufficient evidence to present a jury question on all eight of the charged counts. In particular, a reasonable jury could find, based on these facts, that Kelsey and Caroline did not consent to Mottaghian‘s actions, and that Mottaghian took a substantial step toward commission of the charged attempt crimes. Thus, the trial court did not err when it denied Mottaghian‘s motions for a directed verdict. And Mottaghian has failed to demonstrate that his trial attorneys rendered constitutionally ineffective assistance. Accordingly, we affirm Mottaghian‘s convictions.