STATE OF UTAH, Petitioner, v. ERIC MATTHEW RAY, Respondent.
No. 20170524
SUPREME COURT OF THE STATE OF UTAH
Filed March 9, 2020
2020 UT 12
Heard April 11, 2018. On Certiorari to the Utah Court of Appeals. Fourth District, Provo. The Honorable Lynn W. Davis. No. 101401511.
This opinion is subject to revision before final publication in the Pacific Reporter
Attorneys:1
Sean D. Reyes, Att‘y Gen., Karen A. Klucznik, Asst. Solic. Gen., Salt Lake City, for petitioner
Douglas J. Thompson, Provo,
JUSTICE PETERSEN authored the opinion of the Court in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Eric Matthew Ray was convicted of forcible sexual abuse of R.M., who was fifteen years old at the time. He appealed the conviction, and the court of appeals concluded Ray‘s trial counsel provided ineffective assistance because he did not object to the jury instruction for forcible sexual abuse. The instruction included an option to convict Ray if he took “indecent liberties” with R.M., but it did not define that phrase. The court of appeals concluded counsel was ineffective because he did not object to the jury instruction and ask the district court to either omit the phrase “indecent liberties” or define it. The question before us is whether the court of appeals erred in this determination.
¶2 Under the circumstances here, we conclude defense counsel‘s performance was not deficient. Accordingly, we reverse and reinstate Ray‘s conviction.
BACKGROUND2
¶3 Ray, a twenty-eight-year-old man who was attending law school in Illinois, accidentally texted R.M., a fourteen-year-old girl living in Utah. Although Ray had texted the wrong number, the two continued communicating via text messages, social media, and eventually telephone. Over time, R.M. started to have romantic feelings for Ray. He reciprocated. They discussed sex, love, and marriage. And eventually, Ray flew to Utah over his spring break to meet R.M. in person. At the time of Ray‘s visit, R.M. was fifteen years old.
¶5 Although R.M. kept her interaction with Ray a secret from her family, her parents eventually learned of it. Less than a week after Ray left Utah, R.M. became extremely ill and was hospitalized for ten days. When Ray learned R.M. was sick, he repeatedly contacted the hospital and R.M.‘s parents about her. He claimed to be a school friend named “Edward Matthews.”
¶6 When “Edward Matthews” mentioned knowing about an infection in R.M.‘s vaginal area, R.M.‘s mother considered this a “red flag.” Looking for more information, R.M.‘s mother found an Edward Matthews on a list of R.M.‘s Facebook friends. She then found a picture that was tagged with both Ray‘s name and the name Edward Matthews. R.M.‘s phone also contained photos of Ray.
¶7 R.M.‘s family contacted a neighbor who in turn contacted a detective, informing the detective that the family was seeking help in uncovering the connection between R.M. and Ray. The detective went to the hospital and spoke with R.M.‘s parents. He then spoke with R.M., but for only about ten minutes because she “was in a sedated state,” was “slow to respond,” and her answers “started getting” incoherent. R.M. disclosed some information about Ray and her contact with him.
¶8 The detective also posed as R.M. on Facebook and engaged in a conversation with Ray, attempting to elicit more information about Ray‘s contact with R.M.
¶9 Ultimately, the State charged Ray with one count of object rape, two counts of forcible sodomy, and one count of forcible sexual abuse. In the district court proceedings, R.M. testified at a preliminary hearing and at trial.
¶10 During Ray‘s trial, R.M. testified about what took place when Ray visited Utah. On the first day, a Wednesday, Ray met R.M. at her school and took her to his hotel room. There, Ray gave R.M. her first kiss. For hours the two talked, kissed, and lay on the bed together. Ray also touched R.M.‘s “bra” and “underwear areas.” He dropped her off at a corner near her house over five hours later.
¶11 On Thursday, Ray again met R.M. at her school. This time, they were joined by R.M.‘s friend and the friend‘s boyfriend. As her friends swam in the hotel pool, Ray and R.M. went to Ray‘s room, disrobed to their underwear, lay on the bed, and kissed for about an hour. Ray touched R.M.‘s breasts, both over and under her bra. He also touched R.M.‘s buttocks and her vagina over her underwear. R.M. touched Ray‘s “private parts” over his underwear, but she refused his request for a “hand job.”
¶12 The two then got dressed and played a game Ray had brought — “Sexy Truth or Dare” — with R.M.‘s friend and her boyfriend. Ray also showed them photos of sex toys. He drove them home, again dropping R.M. off at the corner near her house.
¶13 On Friday, Ray again met R.M. at her school. But she was grounded that day, so she just did homework for a short while in Ray‘s car.
¶14 Early Saturday morning, Ray texted R.M. about getting together. They arranged for him to pick her up as she walked toward her school, and he again took her to his hotel room. Ray had decorated his room with flower petals and candles. They started “making out.” After kissing awhile, R.M. took a shower and shaved her pubic area with Ray‘s razor. In an earlier conversation, Ray had asked her to do this. She returned to the room naked. Ray was also naked. As they kissed on the bed, Ray touched outside R.M.‘s vagina with his fingers. Still naked, the two watched the movie “New Moon” from the Twilight Series. Ray mentioned “a few times” how far they “could go without getting in trouble with the law.”
¶15 R.M. testified that Ray then performed oral sex on her, and she reciprocated.3
¶16 The State admitted into evidence Ray‘s electronic conversations with the detective posing as R.M. Ray‘s statements corroborated portions of R.M.‘s testimony. Ray referenced: that the two had “kissed” and “made out“; getting “into bed and kiss[ing] for the rest of the day“; playing “truth or dare“; and “the buzzy toy.”
¶17 Ray‘s defense was that he had not engaged in any sexual activity with R.M. In the alternative, he argued that if the jury did believe R.M.‘s testimony, any sexual activity was consensual. Ray
developed his defense through cross-examination of the State‘s witnesses, including R.M. Defense counsel cross-examined R.M. about variances in the statements she made to the detective, to family members, during her testimony at the preliminary hearing, and during her testimony at trial.4
¶18 With regard to the forcible sexual abuse count, the district court instructed the jury that in order to find Ray guilty, the jury must find that each of the following essential elements of the crime were proven beyond a reasonable doubt:
1. That the defendant, Eric Ray;
. . .
4. Did intentionally, knowingly, or recklessly;
5. Touched [sic] the anus, buttocks, or any part of the genitals of another, or touched [sic] the breasts of a female person 14 years of age or older, or otherwise took indecent liberties with the actor or another[;]
6. With the intent to arouse or gratify the sexual desires of any person[;]
7. Without the consent of the other, regardless of the sex of any participant.
(Emphasis added.) To establish that R.M. did not consent, the State had to prove that she was “14 years of age or older, but younger than 18 years of age“; Ray was “more than three years older than [R.M.]“; and Ray “entice[d] or coerce[d] [her] to submit or participate.” See
¶19 The district court did not provide a definition of “indecent liberties.” And defense counsel did not object to this instruction.
¶20 The jury found Ray guilty of forcible sexual abuse, but acquitted Ray of object rape and could not reach a verdict on the two counts of forcible sodomy. Ray appealed.
¶21 In the court of appeals, Ray made a number of arguments, including that his trial counsel was ineffective for failing to object to the jury instruction for forcible sexual abuse. The court of appeals agreed, and it reversed Ray‘s convictions and remanded for a new trial.
¶22 We granted the State‘s petition for certiorari. We exercise jurisdiction under
STANDARD OF REVIEW
¶23 “On certiorari, this court reviews the decision of the court of appeals for
ANALYSIS
¶24 The only question before us is whether the court of appeals wrongly concluded that Ray‘s counsel provided ineffective assistance at trial. The
State v. Sessions, 2014 UT 44, ¶ 17, 342 P.3d 738. To prevail on this claim, Ray must demonstrate that (1) his counsel‘s performance was deficient in that it “fell below an objective standard of reasonableness” and (2) “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687–88.
¶25 Ray argues his counsel performed deficiently when he did not object to the undefined term “indecent liberties” in the forcible sexual abuse jury instruction. A person is guilty of forcible sexual abuse “if the victim is 14 years of age or older” and
the actor touches the anus, buttocks, or any part of the genitals of another, or touches the breast of a female, or otherwise takes indecent liberties with another . . . with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, without the consent of the other.
¶26 Accordingly, the forcible sexual abuse statute establishes two variants of the offense. The first variant relates to the touching of specific areas of another‘s body (touching variant). The second variant is more general and establishes that “otherwise tak[ing] indecent liberties with another” constitutes forcible sexual abuse (indecent liberties variant).
¶27 However, at the time of the offense here, the statute did not define the term “indecent liberties.”6 We have interpreted the statute‘s use of the disjunctive “or” in combination with the term “otherwise” to mean that the indecent liberties variant “proscribe[s] the type of conduct of equal gravity to that interdicted in the first part” of the statute. In re J.L.S., 610 P.2d 1294, 1295 (Utah 1980); see also State v. Maestas, 2012 UT 46, ¶ 273 n.371, 299 P.3d 892 (noting that we have “applied the doctrine of ejusdem generis” in interpreting this phrase). And we have cautioned that the term “indecent liberties” “cannot derive the requisite specificity of meaning required constitutionally” unless
it is considered to refer “to conduct of the same magnitude of gravity as that specifically described in the statute.” In re J.L.S., 610 P.2d at 1296; see also State v. Lewis, 2014 UT App 241, ¶¶ 11–13, 337 P.3d 1053. Only then is “the potential infirmity for vagueness . . . rectified.” In re J.L.S., 610 P.2d at 1296.
¶28 With regard to the first prong of Strickland, the court of appeals concluded that in light of the precedent discussed above, counsel‘s acceptance of the jury instruction here amounted to deficient performance. The court of appeals explained,
Neglecting to provide an instruction as to the meaning of “indecent liberties” amounted to a failure to instruct the jury as to all the essential elements of the offense . . . [a]nd just as failure to instruct the jury as to the elements of the charged offense would constitute reversible error, in the context of the case before us, the failure to request an instruction explaining the element of “indecent liberties” constitutes
objectively unreasonable assistance by counsel.
State v. Ray, 2017 UT App 78, ¶ 19, 397 P.3d 817 (citations omitted).
¶29 The court of appeals reasoned that “defense counsel had two basic options consistent with his duty to render effective assistance. Either he could have requested an instruction defining ‘indecent liberties,’ or he could have requested that the problematic phrase be excised from the elements instruction.” Id. ¶ 20 (citation omitted). The court of appeals concluded that “[t]here was no conceivable tactical benefit to [Ray]” in taking neither of these actions, and therefore trial counsel performed deficiently. Id. ¶¶ 19–20 (alterations in original).
¶30 The State argues that the court of appeals’ analysis was incorrect. We agree.
¶31 First, not objecting to an error does not automatically render counsel‘s performance deficient. We agree with the court of appeals that a district court instructing a jury on forcible sexual abuse should define indecent liberties. See In re J.L.S., 610 P.2d at 1296 (cautioning that indecent liberties “cannot derive the requisite specificity of meaning required constitutionally” unless it is considered to refer “to conduct of the same magnitude of gravity as that specifically described in the statute“). But it does not automatically follow that counsel‘s acquiescence to an instruction that did not do so was unreasonable per se. The United States Supreme Court has rejected the notion that certain actions by counsel are per se deficient “as inconsistent with Strickland‘s holding that ‘the performance inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.‘” Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000) (quoting Strickland, 466 U.S. at 688). “[T]he reasonableness of counsel‘s challenged conduct” must be judged “on the facts of the particular case, viewed as of the time of counsel‘s conduct.” Strickland, 466 U.S. at 690.
¶32 Thus, it is not correct to equate counsel‘s submission to an error with deficient performance. Defense counsel did not have a Sixth Amendment obligation to correct every error that might have occurred at trial, regardless of whether it affected the defendant. Counsel could pick his battles. We must view a decision to not object in context and determine whether correcting the error was sufficiently important under the circumstances that failure to do so was objectively unreasonable — i.e., a battle that competent counsel would have fought.
¶33 Second, the ultimate question is not whether counsel‘s course of conduct was strategic, but whether it fell below an objective standard of reasonableness. In assessing counsel‘s performance, the court of appeals determined that counsel‘s assent to the jury instruction yielded “no conceivable tactical benefit to [Ray].” Ray, 2017 UT App 78, ¶ 20 (alteration in original). The court of appeals reasoned that if the defendant demonstrates “there is no way that counsel‘s actions might be considered sound trial strategy, then the presumption [of reasonable assistance] is overcome.” Id. ¶ 18 (citation omitted) (internal quotation marks omitted).
¶34 But Strickland demands reasonable assistance, not strategic assistance. See Flores-Ortega, 528 U.S. at 481 (“The relevant question is not whether counsel‘s choices were strategic, but whether they were reasonable.“). It is correct that the United States Supreme Court has directed reviewing courts to “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Strickland, 466 U.S. at 689. But “these presumptions are simply tools that assist [courts] in analyzing Strickland‘s deficient performance prong.” Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002). If it appears counsel‘s actions could have been intended to further a reasonable strategy, a defendant has necessarily failed to show unreasonable
[W]hether a counsel‘s actions can be considered strategic plays an important role in our analysis of Strickland‘s deficient performance prong. As a general matter, we presume that an attorney performed in an objectively reasonable manner because his conduct might be considered part of a sound strategy. Moreover, where it is shown that a challenged action was, in fact, an adequately informed strategic choice, we heighten our presumption of objective reasonableness and presume that the attorney‘s decision is nearly unchallengeable. The inapplicability of these presumptions (because, for example, the attorney was ignorant of highly relevant law) does not, however, automatically mean that an attorney‘s performance was constitutionally inadequate. Instead, we still ask whether, in light of all the circumstances, the attorney performed in an objectively reasonable manner.
¶35 Language in some of our appellate case law has muddied this point. See, e.g., State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (“To satisfy the first part of the test, defendant must overcome the strong presumption that [his] trial counsel rendered adequate assistance, by persuading the court that there was no conceivable
tactical basis for counsel‘s actions.” (alteration in original) (citation omitted) (internal quotation marks omitted)); Lewis, 2014 UT App 241, ¶ 13 (finding counsel deficient where there “was no conceivable tactical benefit” to his omission); State v. Doutre, 2014 UT App 192, ¶ 24, 335 P.3d 366 (“If clearly inadmiss[i]ble evidence has no conceivable benefit to a defendant, the failure to object to it on nonfrivolous grounds cannot ordinarily be considered a reasonable trial strategy.“).
¶36 We take the opportunity to clarify and realign our case law on this point with United States Supreme Court precedent. To be clear, it was not error for the court of appeals to assess whether counsel may have had a sound strategic reason for not objecting to the jury instruction. Indeed, the United States Supreme Court has directed that defendants must overcome such a presumption. See Strickland, 466 U.S. at 689. But when the court of appeals concluded there was no strategic reason for counsel to not object to the instruction, the deficiency analysis was not at an end. A reviewing court must always base its deficiency determination on the ultimate question of whether counsel‘s act or omission fell below an objective standard of reasonableness. Here, that means we must ask whether defining indecent liberties was sufficiently important under the circumstances that counsel‘s failure to argue for a clarifying jury instruction fell below an objective standard of reasonableness. See id.
¶37 Under the circumstances here, we disagree with the court of appeals’ conclusion that counsel‘s acquiescence to the jury instruction could not have been sound strategy. Importantly, neither side put the precise meaning of “indecent liberties” at issue. The State focused on the specific touching variant of forcible sexual abuse, not “indecent liberties.”8
¶38 And the definition of “indecent liberties” was not pertinent to Ray‘s defense.
this strategy by cross-examining R.M. and highlighting inconsistencies in her various statements. He devoted most of his closing argument to challenging R.M.‘s credibility as a witness, telling the jury to “think about all the lies that she‘s told.” In the alternative, he argued that if the jury did believe her, there had been no enticement or coercion because the entire relationship was consensual. Importantly, Ray did not parse the evidence of sexual conduct to argue that it did not rise to the level of forcible sexual abuse.
¶39 Within that context, counsel could have made a “reasonable professional judgment,” Strickland, 466 U.S. at 690, not to draw the State‘s attention to the indecent liberties variant. While the State did not focus its attention on indecent liberties, it could have. The statute gave the State the option of proving either variant of forcible sexual abuse.
¶40 And counsel could have reasonably concluded there was credible evidence before the jury that, while it did not fit within the specific touching variant, could have constituted indecent liberties. For example, R.M. testified that in addition to Ray touching her, she and Ray spent hours “making out” in a hotel room, watched a movie together while they were naked, and that she had touched the front of his “private parts.”
¶41 And Ray‘s own statements corroborated much of this. In his electronic communications with the detective posing as R.M., Ray referenced: that the two had “kissed” and “made out“; getting “into bed and kiss[ing] for the rest of the day“; playing “truth or dare“; and “the buzzy toy.”
¶42 In light of this evidence, which came partly from Ray himself, counsel could have reasonably concluded that clarifying indecent liberties would not help clear Ray and could instead broaden the State‘s arguments against him. While counsel‘s focus was that the inconsistencies in R.M.‘s statements showed she could not be believed at all, counsel could have reasonably judged that even if the jury did not fully accept this argument, the inconsistencies he highlighted would more effectively undermine the State‘s proof on charges involving specific acts rather than more general “indecent liberties.”
¶43 We conclude counsel could have reasonably preferred the State to remain focused on the specific touching variant of forcible sexual abuse, and chosen not to draw the State‘s attention to the indecent liberties variant by objecting to the related jury instruction.9 Accordingly, Ray has failed to overcome the “strong presumption” that his counsel exercised reasonable professional judgment.
¶44 We clarify, however, that even if we were unable to conceive of a possible sound strategy behind counsel‘s conduct, it would not have ended our analysis. We would have proceeded to determine whether correcting the erroneous jury instruction was sufficiently important that counsel‘s inaction was objectively unreasonable. In light of the fact that neither side had put the meaning of indecent liberties at issue, and that it was not germane to the defense, we likely would have arrived at the same conclusion.
¶45 Because we conclude counsel‘s performance was not deficient, we do not address the prejudice prong of Strickland.
CONCLUSION
¶46 We conclude that Ray‘s counsel did not provide ineffective assistance. Accordingly, we reverse and reinstate Ray‘s conviction. We remand to the court of appeals to address Ray‘s remaining claims.