State v. Mottaghian , 2022 UT App 8 ( 2022 )

2022 UT App 8THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BORZIN MOTTAGHIAN,
Appellant.
Opinion
No. 20200199-CA
Filed January 21, 2022
Fourth District Court, American Fork Department
The Honorable Robert C. Lunnen
No. 171101546
Ann M. Taliaferro, Attorney for Appellant
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
State v. Mottaghian
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.
BACKGROUND 1
¶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
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (quotation simplified).
20200199-CA 2 2022 UT App 8State v. Mottaghian
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, Kelsey 2
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 to “Max,” Kelsey
scheduled an appointment. The only additional information she
received prior to her appointment was an address, parking
information, guidance on what to wear, and instructions to
“shower [her] vaginal and anus area” prior to the appointment.
¶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,
2. A pseudonym.
20200199-CA 3 2022 UT App 8State v. Mottaghian
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
20200199-CA 4 2022 UT App 8State v. Mottaghian
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.
¶10 Mottaghian then instructed Kelsey to return to the first
position “because after all of this [she] was probably more
relaxed than [she] had been in the beginning” and he could thus
obtain more accurate measurements than he originally had.
Mottaghian again inserted his fingers into her vagina and
rubbed her clitoris; at this point, Kelsey told him that “this feels
a little bit sexual in nature and I’m uncomfortable.” Mottaghian
responded that it was “normal to feel that way because I am
inside of your sexual organs” and that “if you feel like you’re
going to have an orgasm, that’s okay, it will help you relax, and
20200199-CA 5 2022 UT App 8State v. Mottaghian
it wouldn’t be the first time it has happened.” Kelsey was
surprised and “scared” by Mottaghian’s dismissive answer, and
thought it was far too casual to be a doctor’s response.
Mottaghian then took additional measurements of Kelsey’s
vagina, this time moving his thumb on her clitoris in a more
“vigorous” manner, almost as if he were now “trying to make
[her] orgasm.” He also resumed inserting the rod in and out of
her vagina, as he had done previously, and began inserting his
fingers and making “circular motions” while maintaining
contact with her clitoris. Mottaghian then followed the same
routine for the final measurement of her anus: inserting his
fingers, inserting the rod, and “rubbing” her clitoris.
¶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, Caroline 3 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
3. Also a pseudonym.
20200199-CA 6 2022 UT App 8State v. Mottaghian
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 Caroline was
on the table, but before Mottaghian began the examination, he
asked to take a photograph of her vagina, but she declined.
Mottaghian then began inserting one of the rods into Caroline’s
vagina, instructing her to “tell [him] when it really hurts.” While
she was in pain the entire time, Caroline finally told Mottaghian
to stop when the pain became “unbearable,” at which point he
20200199-CA 7 2022 UT App 8State v. Mottaghian
pulled the rod out and took a measurement. After taking vaginal
measurements, he conducted the same procedure anally.
¶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
20200199-CA 8 2022 UT App 8State v. Mottaghian
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 investigating Kelsey’s claims)
who informed her that Mottaghian was not a doctor; at that
point, she told the detectives the details of her experience with
Mottaghian. By this time, the detectives were preparing to send
in an undercover officer to validate the allegations against
20200199-CA 9 2022 UT App 8State v. Mottaghian
Mottaghian, and one of them was using Kelsey’s email account
to communicate with Mottaghian directly, attempting to
schedule an appointment for Kelsey’s fictitious roommate
“Jenna.” Posing as “Jenna,” a detective told Mottaghian that
Kelsey had told “Jenna” about the advertisement and had stated
that the “measurements were done by a doctor,” and asked him
to confirm that this was correct and whether “Jenna” could
schedule an appointment. Mottaghian responded in the
affirmative to this compound question.
¶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
20200199-CA 10 2022 UT App 8State v. Mottaghian
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 created before the
appointments with Kelsey and Caroline. She testified that she
20200199-CA 11 2022 UT App 8State v. Mottaghian
gave that diagram to an attorney she had hired to defend
Mottaghian.
¶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
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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
20200199-CA 13 2022 UT App 8State v. Mottaghian
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 [https://perma.cc/SPK9-
QJCC]. In that instruction, the court told the jurors that the State
had the burden to prove that Caroline and Kelsey “did not
consent to the alleged sexual conduct.” The instruction
contained a list of “[e]xamples of lack of consent,” which
included several scenarios set forth in Utah Code section 76-5-
406, but it also contained a catch-all provision stating that jurors
could find nonconsent in “[a]ny other circumstances where
[they] find a lack of consent when considering the common,
ordinary meaning of consent.”
¶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
20200199-CA 14 2022 UT App 8State v. Mottaghian
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
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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 the victim through . . . physical force or violence,”
and where “the victim is younger than 14 years of age.” See Utah
Code Ann. § 76-5-406(1), (2), (9) (LexisNexis 2017). 4 Some of the
listed circumstances describe situations in which deceptive
conduct on the part of the actor may be at issue. 5 See id. § 76-5-
4. Because the incidents giving rise to this case occurred in 2017,
we cite the statute then in effect. The statute has since been
amended, but not in any way material to this case.
5. One important piece of the State’s theory at trial was that
Mottaghian had, through misrepresentations and false
statements, deceived Kelsey and Caroline into participating in
the activity, and that had Kelsey and Caroline known the truth
about Mottaghian’s purposes and business situation, they would
not have agreed to participate. Mottaghian attacks this theory on
appeal, referring to it as a “fraud-in-the-inducement” theory of
nonconsent and asserting that such a theory “is not cognizable as
a matter of law.” Mottaghian posits that puffery is common on
the dating scene, and that people—in an effort to initiate sexual
relationships—often “exaggerate[] how much money [they]
make, or pretend[] to be interested in a long-term relationship,”
and argues that a person who falls for such puffery cannot
reasonably later claim rape due to nonconsent. But “consent . . .
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.
Whether, and to what extent, the actor deceived the victim into
participation in sexual acts is one factor a factfinder may
(continued…)
20200199-CA 16 2022 UT App 8State v. Mottaghian
406(7) (stating that consent is not present when “the actor knows
that the victim submits or participates because the victim
erroneously believes that the actor is the victim’s spouse”).
Indeed, one of the circumstances describes situations in which
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.
Id. § 76-5-406(12). Under the statute, “health professional” was
defined as “an individual who is licensed or who holds himself
or herself out to be licensed” as a medical professional. See id.
§ 76-5-406(12)(a).
(…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 Utah Code Ann. § 76-5-406(7),
(12) (LexisNexis 2017). We therefore reject Mottaghian’s
contention that a “fraud-in-the-inducement” theory of
nonconsent is never cognizable, although we recognize that
there may be cases in which an actor’s misrepresentations are
not significant enough to constitute the sort of deception that
would vitiate consent. In this case, as discussed herein,
Mottaghian’s misrepresentations and deceptions were
significant enough such that a reasonable jury could have
determined that neither Kelsey nor Caroline consented to
Mottaghian’s behavior.
20200199-CA 17 2022 UT App 8State v. Mottaghian
¶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 of the factfinder.” Barela, 2015 UT 22, ¶ 40. Indeed, we
have stated that the consent statute “sets out a list of
circumstances under which there is deemed to be no consent to
sexual activity as a matter of law but does not preclude the fact-
finder from determining that circumstances outside those
defined in the statute may still amount to lack of consent in any
particular case.” Thompson, 2014 UT App 14, ¶ 90 (quotation
simplified).
20200199-CA 18 2022 UT App 8State v. Mottaghian
¶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
20200199-CA 19 2022 UT App 8State v. Mottaghian
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
6. In addition to asserting that the State failed to prove
nonconsent, Mottaghian also argues—for the first time on
appeal—that the State failed to prove that he “acted with the
required mental state” regarding consent. Recognizing that this
argument is unpreserved, Mottaghian asks us to review this
issue through the lens of plain error and ineffective assistance of
counsel. In particular, he asserts that his trial attorneys were
ineffective for not moving for a directed verdict on this issue,
(continued…)
20200199-CA 20 2022 UT App 8State v. Mottaghian
¶43 This evidence was sufficient to create a jury question
regarding both (a) whether the “deceptive health professional”
scenario listed in the consent statute applied here, and (b)
whether, even if none of the scenarios applied perfectly, under
the totality of the circumstances Kelsey and Caroline consented
to the sexual activity. A reasonable jury, after hearing the
evidence presented, could have concluded that Mottaghian was
falsely holding himself out as a “health professional” and that
this activity occurred “under the guise of providing professional
(…continued)
and that the trial court committed plain error by submitting the
case to the jury on this issue. We find both of these arguments
unpersuasive. For the reasons just stated, the State presented
sufficient evidence of nonconsent, including testimony
indicating that Mottaghian deceived Caroline and Kelsey into
participating in the research and that he knew he was being
dishonest in his explanation of what he was doing and why.
That same evidence was also sufficient to allow a reasonable jury
to conclude that Mottaghian was at least reckless about whether
Kelsey and Caroline actually consented. See Utah Code Ann.
§ 76-5-402.2 (LexisNexis 2017) (listing no mens rea for
nonconsent as to the crime of object rape); id. § 76-5-404 (listing
no mens rea for nonconsent as to the crime of forcible sexual
abuse); id. § 76-2-102 (stating that “when the definition of the
offense does not specify a culpable mental state and the offense
does not involve strict liability, intent, knowledge, or
recklessness shall suffice to establish criminal responsibility”).
Thus, any motion for a directed verdict on that point would have
been futile, and therefore counsel did not render ineffective
assistance by electing not to bring such a motion. See State v.
Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (“The failure of counsel to
make motions that would be futile if raised does not constitute
ineffective assistance.” (quotation simplified)). And for similar
reasons, the trial court did not commit any error—let alone an
obvious one—by failing to direct a verdict on that point.
20200199-CA 21 2022 UT App 8State v. Mottaghian
diagnosis, counseling, or treatment.” See Utah Code Ann. § 76-5-
406(12) (LexisNexis 2017). But even if the jurors found that
particular example of nonconsent to be inapplicable, they could
reasonably have determined, in this situation, that neither Kelsey
nor Caroline consented to the activity under the “common,
ordinary meaning” of consent. See Thompson, 2014 UT App 14,
¶ 90. In this situation, the trial court did not err when it denied
Mottaghian’s motion for a directed verdict on Counts 1–6.
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.” Utah Code
Ann. § 76-9-702.1(1) (LexisNexis 2017). And a person is guilty of
“an attempt to commit a crime” when that person “intends to
commit the crime” and “engages in conduct constituting a
substantial step toward commission of the crime.” Id. § 76-4-
101(1)(a), (1)(b)(i). Thus, to obtain a conviction on the charge of
attempted sexual battery, the State had to prove beyond a
reasonable doubt that Mottaghian intended to “touch . . . the
anus, buttocks, or any part of the genitals” of the undercover
officer, that such conduct would “likely cause affront or alarm”
to the officer, and that Mottaghian “engage[d] in conduct
constituting a substantial step” toward commission of that
crime. Mottaghian’s directed verdict motion was limited to the
third item in that list: he asserted that the State failed to
20200199-CA 22 2022 UT App 8State v. Mottaghian
adequately prove that he took a “substantial step” toward
commission of the crime.
¶46 Our legislature has explained that “conduct constitutes a
substantial step if it strongly corroborates the actor’s mental
state.” Id. § 76-4-101(2). Our supreme court, interpreting this
statute, has explained that a substantial step requires “significant
conduct” in the form of an “overt act.” State v. Arave, 2011 UT 84,
¶ 30, 268 P.3d 163 (quotation simplified). That act must be
“something more than mere preparation”; it must be “a tangible
step toward commission of a crime that transcends intent, yet
fails to culminate in its planned accomplishment.” Id. (quotation
simplified); see also State v. Hoffman, 2021 UT App 143, ¶ 20.
¶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
20200199-CA 23 2022 UT App 8State v. Mottaghian
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).
20200199-CA 24 2022 UT App 8State v. Mottaghian
¶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. ¶ 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 counsel’s
actions could have been intended to further a reasonable
strategy, a defendant has necessarily failed to show
unreasonable performance,” Ray, 2020 UT 12, ¶ 34.
¶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. ¶ 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
20200199-CA 25 2022 UT App 8State v. Mottaghian
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.” Utah Const. art. I, § 10. “At its
7. Because Mottaghian’s attorneys did not ask the trial court to
give a specific unanimity instruction, this issue is not preserved
for appellate review, and Mottaghian invites us to consider it
through the lens of both plain error and ineffective assistance of
counsel. Because the prejudice analysis is the same for plain
error as it is for ineffective assistance of counsel, our conclusion
(discussed in text, infra ¶¶ 59–72) that Mottaghian cannot
demonstrate prejudice for the purposes of his ineffective
assistance claim also means that Mottaghian cannot demonstrate
prejudice for the purposes of his plain error claim. See, e.g., State
v. Martinez, 2021 UT App 11, ¶¶ 44–46, 480 P.3d 1103 (stating
that “plain error and ineffective assistance of counsel share a
common standard of prejudice,” and concluding that, where
prejudice is lacking, both claims fail (quotation simplified)).
20200199-CA 26 2022 UT App 8State v. Mottaghian
most basic level, this provision requires the full concurrence of
all empaneled jurors on their judgment as to the criminal charges
submitted for their consideration.” State v. Hummel, 2017 UT 19,
¶ 25, 393 P.3d 314. Additionally, it is “well-established” that our
constitutional unanimity requirement “‘is not met if a jury
unanimously finds only that a defendant is guilty of a crime.’”
See id. ¶¶ 26, 30 (emphasis omitted) (quoting State v. Saunders,
1999 UT 59, ¶ 60, 992 P.2d 951). Our constitution “requires
unanimity as to each count of each distinct crime charged by the
prosecution and submitted to the jury for decision.” Id. ¶ 26
(emphasis omitted). Indeed, “a generic ‘guilty’ verdict that does
not differentiate among various charges would fall short,” as
would “a verdict of ‘guilty of some crime.’” Id. ¶¶ 26–27. For
example,
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. ¶ 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. ¶¶ 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. ¶ 23.
20200199-CA 27 2022 UT App 8State v. Mottaghian
¶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. ¶ 22; see
8. In its brief, the State points out that Alires was issued three
days after the trial in this case ended, and asserts that, until
Alires, there was no clear requirement that the jury had to be
unanimous as to which specific act supported each count, and
that at the time of trial “the only clear requirement about the
content of unanimity instructions was that the jury had to be
instructed that its verdict had to be unanimous.” We disagree,
and note our supreme court’s discussion in State v. Hummel,
where the court concluded that the principles discussed above,
see supra ¶ 55, were “well-established in our law.” See 2017 UT
19, ¶ 30, 393 P.3d 314; see also State v. Evans, 2001 UT 22, ¶ 17, 20
P.3d 888 (referring to the court’s holding in State v. Saunders as a
“majority” view). In Alires, we were not plowing entirely new
ground. Even before that case came out, both counsel and the
trial court should have been aware of Hummel and other jury
unanimity case precedents. See State v. Baugh, 2022 UT App 3,
¶ 14 n.3 (stating that, even though Alires was not published
“until a few days after” the relevant trial, “if the law was well
enough established at the time Alires was tried, such that the
Alires court could determine that counsel there performed
deficiently in failing to request a proper unanimity instruction,
the law was also well enough established that defense counsel
here should have recognized the need to request appropriate
unanimity instructions”).
20200199-CA 28 2022 UT App 8State v. Mottaghian
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 sheer number of touches at issue and other surrounding
circumstances make it likely that different jurors could easily
reach different conclusions as to which acts were done in
conjunction with the other requisite elements of the charged
offenses.” In particular, Mottaghian argues that specificity—
especially as to which act supported each charge for Kelsey and
Caroline—was important here because, even assuming that the
two women initially had not consented to Mottaghian’s actions,
there was a distinguishing point during each woman’s
appointment where she apparently realized that Mottaghian
20200199-CA 29 2022 UT App 8State v. Mottaghian
may not be what he claimed to be but nevertheless made a
conscious choice to continue with the procedure. For Kelsey,
Mottaghian claims this point occurred after she told him that
“this feels a little bit sexual in nature” and came to the
realization that the appointment was “no longer” for research,
but still chose to continue. For Caroline, Mottaghian asserts that
this point occurred when she left the room to use the restroom
but then returned to finish the appointment. We acknowledge
Mottaghian’s point that there could conceivably be a difference,
when it comes to consent, between the touches and penetrations
that occurred prior to these realization points and the touches
and penetrations that occurred after. But we remain
unpersuaded by Mottaghian’s overall prejudice argument, for
several reasons.
¶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, 2022 UT
App 3. 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
20200199-CA 30 2022 UT App 8State v. Mottaghian
three—of aggravated assault (for the stab wounds inflicted on
the remaining three victims). Id. ¶ 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. ¶ 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. ¶ 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. ¶ 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. ¶¶ 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 constituted child
pornography. Id. ¶¶ 10–13. At trial, the court did not instruct the
jury that it had to unanimously agree on which pictures formed
the basis for each count. Id. ¶ 22. Thus, “the jury was left with
the task to identify and unanimously agree on seven specific acts
of sexual exploitation of a minor from among the thirty-seven
images that were identified as child pornography.” Id. After
being convicted on all seven counts, the defendant appealed,
arguing that the trial court committed plain error by not giving a
specific unanimity instruction. Id. ¶ 21. On appeal, we noted that
20200199-CA 31 2022 UT App 8State v. Mottaghian
[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. ¶ 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.
¶ 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
20200199-CA 32 2022 UT App 8State v. Mottaghian
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. ¶¶ 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.
¶ 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. ¶¶ 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. ¶ 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 between those touches; at a minimum, Mottaghian
offers no basis upon which a juror might have considered some
of the pre-realization touches consensual and others not. Under
these circumstances, we do not perceive a reasonable probability
that the jury would have reached a different result had it been
specifically instructed that all jurors needed to agree on the
20200199-CA 33 2022 UT App 8State v. Mottaghian
specific act underlying each count. To illustrate, we engage in a
count-by-count analysis.
¶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 Utah Code Ann.
§ 76-5-402.2 (LexisNexis 2017). And the State had to prove that at
least two penetrations (whether anal or vaginal) satisfied the
elements of this crime. For the forcible sexual abuse count, the
State had to prove that Mottaghian—without Kelsey’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.” Id. § 76-5-404. By Mottaghian’s own count (as set forth
in his briefing), Kelsey testified that Mottaghian committed at
least fifteen vaginal penetrations, eight anal penetrations, and
nine genital touches, the majority of which—and at least two of
each type—occurred prior to any alleged realization point. The
jury convicted Mottaghian on all three of these counts as
charged.
¶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
20200199-CA 34 2022 UT App 8State v. Mottaghian
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 Utah Code Ann.
§ 76-9-702.1 (LexisNexis 2017). Notably, nonconsent is not an
element of this crime. See id. Thus, even assuming that Caroline’s
mid-procedure visit to the restroom created an issue about her
consent, the jury apparently resolved any such issue in
Mottaghian’s favor by acquitting him of the more serious
charges—the ones that required findings of nonconsent—and
convicting him of lesser offenses that did not require
nonconsent. Here, we see no reasonable likelihood that a more
specific jury unanimity instruction would have resulted in a
different outcome on these counts. See Percival, 2020 UT App 75,
¶ 29.
¶70 Count 6: Forcible Sexual Abuse of Caroline. Mottaghian was
also charged with one count of forcible sexual abuse in relation
20200199-CA 35 2022 UT App 8State v. Mottaghian
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.” Utah
Code Ann. § 76-5-404. The jury convicted Mottaghian on this
count as charged. Our analysis on this count tracks our analysis
on Count 3, the forcible sexual abuse count against Kelsey. No
witness testified at trial to contradict Caroline’s account of the
relevant touches, and Mottaghian defended the case not by
disputing Caroline’s account of the touches but, instead, by
asserting that they were consensual. And by its verdict, the jury
found that Caroline did not consent to at least one non-
penetrative genital touch. Even assuming that the jurors did not
agree that all the genital touches were nonconsensual, and even
assuming that Caroline’s restroom visit rendered all post-
restroom touches consensual, there are still more pre-restroom
genital touches than there are counts, and Mottaghian offers us
no meaningful way to distinguish between the various pre-
restroom touches from a consent standpoint. For these reasons,
we cannot agree with Mottaghian’s argument that there exists a
reasonable probability of a different result on this count had the
jury been given a specific unanimity instruction. See Percival,
2020 UT App 75, ¶ 29.
¶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 Utah Code Ann.
§ 76-9-702.1. Here, the officer had agreed to undergo the same
procedure as Kelsey and Caroline, including measurements of
both the vagina and anus, and was thus going to be measured at
least once in each location. And because the activity was
20200199-CA 36 2022 UT App 8State v. Mottaghian
interrupted by police officers before any actual touching
occurred, the analysis on these counts does not require us to
consider whether there are grounds upon which to differentiate
any touches. By finding Mottaghian guilty of attempted sexual
battery on these counts, the jury clearly believed that Mottaghian
was about to touch the officer inappropriately before he was
interrupted. In this situation, and with regard to these counts, a
specific unanimity instruction would not have made any
difference at all, and therefore Mottaghian has not demonstrated
a reasonable likelihood of a different result had such an
instruction been given.
¶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 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
20200199-CA 37 2022 UT App 8State v. Mottaghian
under its common, ordinary meaning.” State v. Thompson, 2014
UT App 14, ¶ 90, 318 P.3d 1221. These principles were clearly
established at the time of Mottaghian’s trial. And Mottaghian
does not claim that he was unaware of any of the facts
underlying the State’s theory of the case. The State’s theory, in
this case, amounted to nothing more or less than this: under the
specific and rather unique facts presented here, neither Kelsey
nor Caroline consented to the sexual activity committed by
Mottaghian.
¶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.
20200199-CA 38 2022 UT App 8State v. Mottaghian
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
9. In his brief, Mottaghian initially frames this claim by stating
that the trial court erred in denying his motion for a mistrial
based on this issue. But as previously noted, see supra ¶¶ 28–29,
the court did not deny Mottaghian’s motion for a mistrial
because Mottaghian’s counsel elected not to renew it after
receiving copies of the text messages and cross-examining both
Caroline and the relevant detective about them. Thus, the trial
court was never given an opportunity to rule on the motion.
Accordingly, we will therefore review this issue through the lens
of ineffective assistance of counsel, per Mottaghian’s
(alternative) request.
20200199-CA 39 2022 UT App 8State v. Mottaghian
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 assistance with regard to the
motion for a mistrial. See Whytock, 2020 UT App 107, ¶ 26
(stating that “[a] defendant must satisfy both parts of [the] test in
order to successfully establish ineffective assistance” and that it
is thus “unnecessary for a court to address both components of
the inquiry if we determine that a defendant has made an
insufficient showing on one” (quotation simplified)).
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.
20200199-CA 40 2022 UT App 8