State v. Patterson ( 2017 )

2017 UT App 194THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CORY R. PATTERSON,
Appellant.
Opinion
No. 20150791-CA
Filed October 19, 2017
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 141403037
Dustin M. Parmley, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and JILL M. POHLMAN
concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Cory R. Patterson challenges his conviction on
one count of object rape, arguing that the evidence was
insufficient to support the jury’s verdict. He does not challenge
his convictions on two counts of forcible sexual abuse, stemming
from the same incident. We conclude that the evidence adduced
at trial was sufficient for the jury to find every element of object
rape, and we therefore affirm.
¶2 When we review a challenge to the sufficiency of the
evidence, we review the evidence and all inferences that may
reasonably be drawn from it in the light most favorable to the
jury’s verdict. State v. Pullman, 2013 UT App 168, ¶ 4, 306 P.3d
State v. Patterson
827. We will vacate the conviction only when the evidence, so
viewed, is sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime. Id.; see also State v. Hamilton,
827 P.2d 232, 236 (Utah 1992). To conduct this analysis, we first
review the elements of the relevant statute. We then consider the
evidence presented to the jury to determine whether evidence of
every element of the crime was adduced at trial.
¶3 Defendant was charged with object rape. A person is
guilty of object rape when the person, “without the victim’s
consent, causes the penetration, however slight, of the genital or
anal opening of another person who is 14 years of age or older,[1]
by any foreign object, substance, instrument, or device, including
a part of the human body other than the mouth or genitals, with
intent to cause substantial emotional or bodily pain to the victim
or with the intent to arouse or gratify the sexual desire of any
person.” Utah Code Ann. § 76-5-402.2(1) (LexisNexis Supp.
2016). “Penetration” in this context means “entry between the
outer folds of the labia.” State v. Simmons, 759 P.2d 1152, 1154
(Utah 1988). On appeal, Defendant’s sole claim is that the State
did not present evidence that he caused such penetration.
¶4 To determine whether sufficient evidence was presented,
we must scrutinize the testimony elicited at trial. And because
we review evidence in the light most favorable to the jury’s
verdict, State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346, we rely
primarily on Victim’s account of what happened to her, which
the jury apparently credited.
¶5 Victim met Defendant at their workplace; Defendant was
23 and Victim was 17. While working together, Defendant
regaled her with stories of his military training and his plans to
1. A separate statute criminalizes object rape of a person younger
than 14. See Utah Code Ann. § 76-5-402.3 (LexisNexis Supp.
2016).
20150791-CA 2 2017 UT App 194State v. Patterson
get a concealed carry permit. Victim testified that, after their
shifts, Defendant asked Victim if he could walk her to her car.
When they got to her car, Defendant told Victim that he wanted
to kiss her. He then kissed her for “about a couple minutes”
before pushing her into the back seat of her car. Once inside the
car, Defendant continued to talk to Victim, who was “start[ing]
to get scared, frightened, and . . . was still unsure of what to do
or how to act.” Victim testified that she did not think about
running away at that point, explaining, “[I]n the moment when
it’s so traumatic, you don’t know what to do. You’re not really in
control of your body.” She also testified that she was concerned
about “what he said about the military [training] before and
about his conceal[ed] carry permit.” Defendant then resumed
kissing Victim.
¶6 Victim testified that, after about five minutes, “[t]he
kissing got more intimate, and then he undid my pants, and he
put his hand down my pants and started touching my vagina
and moving his hand around that area.” Victim further testified,
“[W]hen he started trying to put his fingers up my vagina I told
him to stop, and he kept saying, ‘No, no, it’s okay. It’s okay.’”
Victim repeated her plea for Defendant to stop, and “he kind of
moved his fingers back and just started touching around the area
instead of putting his fingers up, instead of penetrating.”
¶7 Defendant then opened his pants and “used [his] hand to
grab my hand, and caress his penis and move it up and down.”
Victim testified that whenever she tried to let go, Defendant
would “put[] my hand back onto his penis. After a while he
noticed that I didn’t want to do that; and after I told him to stop,
he just noticed that. So he finished himself off. Then he had lifted
up my shirt and moved my bra up and touched my breast.”
¶8 At this point in Victim’s testimony, the prosecutor asked
Victim to provide more detail about the earlier touching.
Specifically, the prosecutor asked Victim to “describe where on
your vagina he touched.” Victim testified, “He touched the
general area. Then when he was trying to put his fingers up he
20150791-CA 3 2017 UT App 194State v. Patterson
separated the labia” using “[j]ust one hand, his two fingers.”
Victim further testified, “It really hurt. I had never felt anything
like that before.”
¶9 The question before us is whether a reasonable jury, after
hearing this testimony, could find beyond a reasonable doubt
that Defendant caused “penetration, however slight, of
[Victim’s] genital . . . opening.” See Utah Code Ann. § 76-5-
402.2(1) (LexisNexis Supp. 2016). We therefore review the
evidence in detail, bearing in mind that the evidence presented
to the jury must speak to every element of the offenses charged
to ensure that the jury’s verdict does not rest on speculation:
[N]otwithstanding the presumptions in favor of the
jury’s decision[,] this Court still has the right to
review the sufficiency of the evidence to support
the verdict. The fabric of evidence against the
defendant must cover the gap between the
presumption of innocence and the proof of guilt. In
fulfillment of its duty to review the evidence and
all inferences which may reasonably be drawn
from it in the light most favorable to the verdict,
the reviewing court will stretch the evidentiary
fabric as far as it will go. But this does not mean
that the court can take a speculative leap across a
remaining gap in order to sustain a verdict.
State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94 (first alteration in
original) (citation and internal quotation marks omitted). “Sex
crimes are defined with great specificity and require
concomitant specificity of proof.” State v. Pullman, 2013 UT App
168, ¶ 14, 306 P.3d 827; accord People v. Paz, No. B265251, 2017
WL 1374701, at *9 (Cal. Ct. App. Apr. 14, 2017) (certified for
partial publication at 217 Cal. Rptr. 3d 212) (“In all sex-crime
cases requiring penetration, prosecutors must elicit precise and
specific testimony to prove the required penetration beyond a
reasonable doubt.” (citing Pullman, 2013 UT App 168, ¶ 14)).
20150791-CA 4 2017 UT App 194State v. Patterson
¶10 The Utah Supreme Court’s decision in State v. Simmons is
instructive to our analysis. See generally 759 P.2d 1152 (Utah
1988). There, the supreme court considered the crime of
unlawful sexual intercourse which, like object rape, has
“penetration” as an element. Id. at 1154. The supreme court held
that a victim’s testimony that the defendant “put the tip of his
penis ‘on’ her labia” was insufficient to support conviction when
the victim failed to “testify that [the defendant] put his penis
between the outer folds of her labia.” Id. (noting that the jury
may have been confused by testimony regarding prior incidents
where the defendant did “place his penis between [the victim’s]
outer labial folds” and “penetrated the vaginal canal”).
¶11 Similarly, in State v. Pullman, this court vacated a
defendant’s conviction for sodomy on a child because the
victim’s testimony “describ[ing] a sexual act involving Pullman’s
penis and her buttocks” did not satisfy the statutory element of
“touching the anus.” 2013 UT App 168, ¶ 16 (emphasis, citation,
and internal quotation marks omitted). This court explained that
the victim’s testimony that “Pullman ‘tried to take [her] panties
off and stick his dick into [her] butt’ and that ‘it hurt’” was
“‘sufficiently inconclusive . . . that reasonable minds must have
entertained a reasonable doubt’ as to whether Pullman’s act
involved the touching of her anus.” Id. (alterations in original)
(citation omitted).
¶12 Here, the testimony does not explicitly describe the
challenged element of the offense—“penetration, however
slight.” See Utah Code Ann. § 76-5-402.2(1). Victim testified that
Defendant was “trying to put his fingers up” her vagina until
she repeated her plea for him to stop. Victim further testified
that, at that point, Defendant “started touching around the area
instead of putting his fingers up, instead of penetrating.” And
when asked by the prosecutor to “describe where on your
vagina he touched,” Victim responded that Defendant had
touched “the general area” and that he “separated the labia”
using “[j]ust one hand, his two fingers.” But the State did not
20150791-CA 5 2017 UT App 194State v. Patterson
elicit Victim’s testimony as to whether Defendant’s fingers
actually penetrated between her labia, however slightly.2
¶13 Because Victim’s testimony did not explicitly establish
that Defendant penetrated Victim, we consider next whether the
jury could have reasonably inferred that Defendant penetrated
Victim. The State asserts that the jury could have inferred from
her testimony that “Defendant’s fingers entered, however
slight[ly], between the outer folds of [Victim’s] labia.” (First
alteration in original) (citation and internal quotation marks
omitted). Defendant argues that such a finding amounted to
speculation and was therefore not a reasonable inference.
¶14 The resolution of this issue turns on the difference
between a permissible inference and impermissible speculation.
“This is a difficult distinction for which a bright-line
methodology is elusive.” Salt Lake City v. Carrera, 2015 UT 73,
¶ 12, 358 P.3d 1067. “An inference is a conclusion reached by
2. We recognize that testifying about a sexual assault is traumatic
for the victim. But the State has the burden of “proving by
evidence every essential element” of the charged crime. See
Carella v. California, 491 U.S. 263, 266 (1989) (per curiam); see also
In re Winship, 397 U.S. 358, 364 (1970) (holding that “the Due
Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged”). We urge
prosecutors to adduce specific testimony regarding each and
every element of such crimes to ensure that a jury’s guilty
verdict rests not on speculation but on clear evidence sufficient
to find beyond a reasonable doubt that the defendant committed
the crime charged. Cf. People v. Paz, No. B265251, 2017 WL
1374701, at *9 (Cal. Ct. App. Apr. 14, 2017) (certified for partial
publication at 217 Cal. Rptr. 3d 212) (“We caution prosecutors
not to use vague, euphemistic language and to ask follow-up
questions where necessary.”).
20150791-CA 6 2017 UT App 194State v. Patterson
considering other facts and deducing a logical consequence from
them” whereas “speculation is the act or practice of theorizing
about matters over which there is no certain knowledge.” Id.(citation and internal quotation marks omitted). Thus, a jury’s
inference is reasonable “if there is an evidentiary foundation to
draw and support the conclusion” but is impermissible
speculation when “there is no underlying evidence to support
the conclusion.” Id. Put another way, “an inference may not
properly be relied upon in support of an essential allegation if an
opposite inference may be drawn with equal consistency from
the circumstances in proof.” See United States v. Finnerty, 470 F.2d
78, 81 (3d Cir. 1972) (emphasis, citation, and internal quotation
marks omitted).
¶15 There is no question that penetration is an essential
element of the crime of object rape; indeed, it is the critical
element distinguishing object rape from forcible sexual abuse.
Compare Utah Code Ann. § 76-5-402.2(1) (LexisNexis Supp. 2016),
with id. § 76-5-404(1) (LexisNexis 2012). Therefore, we must
consider whether the two scenarios Victim’s testimony might
have described—penetration or non-penetration—“may be
drawn with equal consistency” from that testimony. See Finnerty,
470 F.2d at 81 (emphasis, citation, and internal quotation marks
omitted).
¶16 Victim testified that Defendant attempted to penetrate her
using two fingers to “separate[]” her labia. This might describe
separation by insertion (penetration) or separation by stretching
the skin adjacent to the labia (not penetration). Victim also
testified that, after she repeatedly asked him to stop, Defendant
“kind of moved his fingers back and just started touching
around the area.” Again, this might describe Defendant
removing his fingers from Victim after penetrating her or
Defendant pulling his hand away from her vagina and labia
without having penetrated Victim. And Victim testified that,
“[i]t really hurt. I had never felt anything like that before.”
Arguably, this testimony might describe physical pain from
penetration or emotional trauma from Defendant’s forcible
20150791-CA 7 2017 UT App 194State v. Patterson
sexual abuse of Victim. Thus, each of these pieces of testimony
may plausibly be interpreted as describing either a penetrative
scenario or a non-penetrative scenario.
¶17 However, while Victim’s testimony was susceptible to
two interpretations, it was not equally consistent with both. See
Finnerty, 470 F.2d at 81. When viewed as a whole, rather than
examining each statement in artificial isolation, Victim’s
testimony more consistently described actual penetration than it
did mere attempted penetration. For example, given their
context, Victim’s statements that “[i]t really hurt” and that she
“had never felt anything like that before” seem more likely to
relate to bodily pain than emotional injury. And such a
description of pain suggests that Defendant’s separation of
Victim’s labia was accomplished by digital penetration. This is
especially true given Victim’s testimony that it was when
Defendant was “trying to put his fingers up,” that he “separated
the labia.” Indeed, Defendant himself described penetration as a
goal he was unable to accomplish rather than testifying that he
had been trying to merely separate Victim’s labia, as an objective
in its own right:
Q: Did you ever penetrate her vagina?
A: I did not.
Q: Was that because of the—what you’ve described
as the tight quarters, or was there another reason?
A: It was the tight quarters.
Thus Defendant’s concession that he had been attempting to
penetrate Victim casts doubt on the possible inference that he
spread Victim’s labia by stretching the skin around it rather than
by penetrating it with his fingers. In other words, Defendant’s
admission as to his intent largely dispels the alternative
possibility that he was, for some reason, merely trying to
20150791-CA 8 2017 UT App 194State v. Patterson
separate Victim’s labia, one from the other, by stretching the skin
and without penetrating between them.
¶18 Victim’s testimony that, after putting his hand into her
pants and trying to penetrate her vagina, Defendant “kind of
moved his fingers back and just started touching around the
area” could mean that his fingers had been on Victim’s labia or
that his fingers had been between Victim’s labia. But these
interpretations are not equally consistent with the evidence
adduced. Specifically, because Victim testified about the pain she
suffered, the total evidentiary picture is more consistent with the
interpretation that Defendant had penetrated Victim before
“mov[ing] his fingers back.”
¶19 Considering these pieces of testimony together, we cannot
conclude that an inference of non-penetration “may be drawn
with equal consistency” as an inference of penetration from the
evidence adduced at trial. See Finnerty, 470 F.2d at 81 (emphasis,
citation, and internal quotation marks omitted). Therefore, there
was an evidentiary basis for the jury’s adoption of one inference
over the other. See Carrera, 2015 UT 73, ¶ 12. And because the
jury’s adoption rested on an evidentiary basis, we conclude that
the jury made a reasonable inference rather than an
impermissible speculation.
¶20 Affirmed.
20150791-CA 9 2017 UT App 194