State v. Heath , 2019 UT App 186 ( 2019 )

2019 UT App 186THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DALE HARLAND HEATH,
Appellant.
Opinion
No. 20180076-CA
Filed November 21, 2019
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 151402675
Ann M. Taliaferro, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.
POHLMAN, Judge:
¶1 A woman (Victim) suffered from back pain. She visited
Dale Harland Heath’s chiropractic offices, where Heath treated
her over the course of nine visits. Based on his conduct during
some of those visits, Heath was convicted of sexual battery
(three counts), forcible sexual abuse, and object rape. Heath
appeals and we affirm.
State v. Heath
BACKGROUND 1
¶2 When Victim could not find relief from chronic back pain,
her mother recommended that Victim seek treatment from
Heath, mother’s chiropractor. From October 2012 to December
2012, Victim, then age 20, saw Heath nine times. The first four
visits were mostly uneventful, though by the fourth visit she was
starting to feel “a little uncomfortable.” Heath’s conduct at the
next four visits forms the basis of Heath’s criminal case.
Count 1—Sexual Battery
¶3 On November 3, 2012, Victim visited Heath for the fifth
time. To prepare for treatment, she changed into a medical gown
but kept her yoga pants on. Heath added “a new massage” on
this visit, rubbing Victim’s inner thigh with one hand and
rubbing “right over [her] vaginal area with the other hand.” His
hand was “going up and down, back and forth, right over the
seam of [Victim’s] yoga pants, right on [her] vagina.” Victim
“opened [her] eyes for a moment,” noticed that the lights were
off, and asked Heath what he was doing. Heath said he was
massaging a psoas attachment. 2 Victim, not knowing what
1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in a light most favorable to that verdict
and recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2,
114 P.3d 551 (cleaned up). In our recitation of the facts, we rely
primarily on Victim’s trial testimony.
2. The psoas muscles are in the lower back, originating at
the spine and running down to the femur. William C. Shiel Jr.,
Medical Definition of Muscle, Psoas, MedicineNet.com,
https://www.medicinenet.com/script/main/art.asp?articlekey=96
54 [https://perma.cc/F8V6-35C9].
20180076-CA 2 2019 UT App 186State v. Heath
treatment was necessary to relieve her symptoms, “closed [her]
eyes and just waited for it to be over.”
¶4 The rubbing lasted a few minutes, and Victim had an
orgasm. She gave no outward indication of it, and Heath acted
like “nothing was wrong” and did not say anything. After
paying for the visit, Victim “cr[ied] the whole way home” while
trying to “explain it away” in her mind.
Count 2—Sexual Battery
¶5 On November 24, 2012, Victim returned for her sixth
session with Heath. She decided to return because she “was in a
lot of pain” and “didn’t really want to believe that it had
happened.” She trusted Heath, and his treatment had been
helping to reduce her back pain.
¶6 Heath again massaged Victim’s “clitoral or vaginal area”
over her clothes. Victim asked what he was doing, and Heath
responded that he was working the gracilis muscle. 3 He did this
for a few minutes, and Victim had another orgasm. When
Victim’s sister—who accompanied Victim to her appointment on
this occasion—entered the room, Heath moved his hand away
from Victim’s vagina and massaged her thigh with two hands as
he talked to her sister. Heath did not put his hand back on
Victim’s vagina while Victim’s sister was in the room.
Count 3—Sexual Battery
¶7 On December 1, 2012, Victim had her seventh visit with
Heath, again after “convincing [herself] that everything was
3. “The gracilis muscle is a long, strap-like muscle that passes
from the pubic bone to the tibia in the lower leg.” Tim Barclay,
Gracilis Muscle, Innerbody.com, https://www.innerbody.com/ima
ge_musfov/musc67-new.html [https://perma.cc/CGZ2-298E].
20180076-CA 3 2019 UT App 186State v. Heath
fine” and that she must have “imagined it.” Heath started with a
stomach massage, which was routine by this point, but then he
went “lower and lower than ever before,” with his fingers going
past her waist “into [her] underpants.” Victim was frozen. She
did not say anything but felt Heath’s fingers “stopping right on
the left side of [her] vagina . . . where [her] leg starts.” His
fingers went “in a circular motion, which would move [the]
outer lip of [Victim’s] vagina over.” At trial, Victim further
described this as a touching of her labia majora, which she
described as “the starting of the vagina, but not the . . . inner, not
the opening, not the clit[oris].”
Counts 4 & 5—Forcible Sexual Abuse and Object Rape
¶8 Victim returned again on December 8, 2012. This visit was
the same as the last. Heath went under Victim’s underpants and
moved his fingers in a circular motion, touching the “outer lip of
[Victim’s] vagina, moving it around and around and around.”
Then, Victim clearly felt Heath move one finger over (likely the
pinky finger of Heath’s right hand), and touch her “right on
[her] clitoris . . . in the middle of [her] vagina.” Victim flinched,
and Heath moved his finger away.
¶9 Victim described this touching at trial. The prosecutor
asked if Heath had to “go beyond the labia majora to touch [her]
clitoris.” Victim responded affirmatively. She similarly testified
that she “felt” his finger “actually go beyond [her] labia
majora.” 4
¶10 Victim did not immediately tell anyone what had
happened because “if [she] said it out loud then it meant it was
4. Victim visited Heath one last time on December 15, 2012.
Nothing relevant to the criminal case against Heath happened at
that visit.
20180076-CA 4 2019 UT App 186State v. Heath
real and it really happened, and [she] didn’t want to believe it.”
But a little more than a month later, Victim reported the
touching to her mother and then to the police.
Other Incidents with J.T. and E.B.
¶11 Before Victim began visiting Heath in 2012, Heath was
treating J.T. in 2011. J.T., a licensed massage therapist, visited
Heath for hip and leg pain. Heath worked along the top of J.T.’s
pubic bone and then started “grinding back and forth in [J.T.’s]
crotch,” touching and rubbing her clitoris. J.T. opened her eyes
and saw that Heath “looked very different,” “like he was . . .
enjoying what he was doing.” J.T. ended the appointment and
never returned.
¶12 As a massage therapist, J.T. knew “there’s absolutely no
reason to” touch that area because there are “no muscles that
attach right there.” J.T. reported the incident to the police and
the Division of Professional Licensing (DOPL). Though DOPL
had some concerns, it declined to “investigate the matter any
further” or “seek formal action against [Heath’s] license.” Heath
had promised to examine and adjust his practices, and DOPL
encouraged him to do so.
¶13 Then, in 2015, Heath treated E.B., who visited Heath a
total of four times. On the third and fourth visits, Heath touched
E.B.’s genital area, including the clitoris, over her clothes. At first
it seemed unintentional, but throughout the treatment it became
apparent to E.B. that it “was completely intentional” and that
“there was no excuse for it.” She too filed a complaint with
DOPL and reported the incident to the police.
Procedural History
¶14 In 2015, the State charged Heath with sexual crimes
against Victim and E.B. The charges with respect to each victim
were severed, and the State filed an amended information
20180076-CA 5 2019 UT App 186State v. Heath
relating to the five sexual offenses against Victim: three counts of
sexual battery, see Utah Code Ann. § 76-9-702.1 (LexisNexis
2017); one count of forcible sexual abuse, see id. § 76-5-404 (2012);
and one count of object rape, see id. § 76-5-402.2 (2017).
¶15 Heath filed a motion in limine to exclude certain other
acts evidence at trial, including testimony from J.T. and E.B.,
primarily under rule 404(b) of the Utah Rules of Evidence.
Under a doctrine of chances theory, the trial court allowed the
State to use J.T.’s and E.B.’s testimonies to prove mens rea but
not to prove actus reus. When it came to proving actus reus, the
court concluded that the State had “failed to prove the
foundational requirement of frequency,” which it described for
purposes of the actus reus as “the frequency with which
chiropractors are falsely accused of inappropriate touching
during treatment.” There was no evidence on this statistic, and
the court reasoned that any conclusion on this point “would be
nothing more than conjecture.”
¶16 But regarding mens rea, the court found that the relevant
inquiry was “the frequency of [Heath’s] involvement in a type of
event—the accidental touching of his patients’ genitals.”
Reasoning that “the mistaken touching of another’s genitals
would be a once in a lifetime event” for the general population
and that chiropractors could take precautions to avoid accidental
touching that would make chiropractors as a class “indistinct
from people generally,” the court allowed the other acts
evidence to prove mens rea—that is, to prove that Heath
touched Victim not by mistake or accident incidental to
treatment, but rather with the intent to arouse or gratify sexual
desire.
¶17 Heath was tried before a jury. Among other witnesses, the
State called a doctor of chiropractic (Doctor) to testify about the
standard of care practiced by chiropractors in Utah. Doctor
opined that chiropractors should “avoid any accidental,
20180076-CA 6 2019 UT App 186State v. Heath
incidental or intentional touching of sensitive areas” through
“draping techniques” or “physical blockage.” He also testified
that there would be no medical reason to touch Victim below the
“top of the pubic bone.”
¶18 Heath testified in his own defense. As relevant here, he
testified that he did not intentionally touch Victim’s vaginal area
but that incidental, over-the-clothing touching during the
treatment was possible. He also stated that he was unaware that
Victim had been sexually stimulated and that she gave no
indication that she was uncomfortable. He admitted that there is
no reason to intentionally touch a patient’s labia or clitoris when
treating lower back pain, whether under or over the clothing.
¶19 The jury found Heath guilty of all charges. After
reviewing this court’s decision in State v. Patterson, 2017 UT App
194, 407 P.3d 1002, the trial court on its own motion requested
briefing on whether judgment should be arrested on count 5 on
the basis that penetration of the genital opening may not have
been established. Heath then filed his own motion to arrest
judgment, contending that the evidence was insufficient on
counts 4 and 5 for forcible sexual abuse and object rape.
Specifically, he argued that the State did not prove “penetration”
of the “genital or anal opening,” as required by the object rape
statute. See Utah Code Ann. § 76-5-402.2(1). He additionally
argued that, for purposes of forcible sexual abuse, the State did
not prove his specific intent “to arouse or gratify the sexual
desire of any individual.” See id. § 76-5-404(1).
¶20 The trial court rejected both arguments. It first stated that
penetration “means entry between the outer folds of the labia”
and concluded that the evidence was sufficient to show
penetration, “meaning [Heath’s] fingers entered between the
outer folds of [Victim’s] labia.” It then determined that a
reasonable jury could find specific intent for forcible sexual
abuse, reasoning that the “nature, duration and progression of
20180076-CA 7 2019 UT App 186State v. Heath
the touching described by [Victim] all give rise to a reasonable
inference” about Heath’s intent to arouse or gratify sexual
desire. The court also noted that there was “no medical purpose”
for the touching. So concluding, the court declined to arrest
judgment.
¶21 The trial court sentenced Heath to concurrent prison
terms of up to one year on each sexual battery count, one to
fifteen years for forcible sexual abuse, and five years to life for
object rape. Heath appeals.
ISSUES AND STANDARDS OF REVIEW
¶22 Heath raises challenges to the admission of other acts
evidence at trial, the sufficiency of the evidence on all counts,
and the jury instructions.
¶23 Trial courts “are afforded a great deal of discretion in
determining whether to admit or exclude evidence.” State v.
Martin, 2017 UT 63, ¶ 18, 423 P.3d 1254 (cleaned up). Barring an
“error of law,” we will reverse a trial court’s evidentiary decision
under rule 404(b) of the Utah Rules of Evidence “only if that
decision is beyond the limits of reasonability.” Id. (cleaned up);
see also State v. Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016 (“[T]he
question . . . is whether the [trial court] abused [its] broad
discretion in [admitting rule 404(b) evidence].”).
¶24 We review Heath’s sufficiency challenges “under
well-settled standards of review—yielding deference to the
jury’s determination of the sufficiency of the evidence but
addressing the legal questions he raises de novo.” State v. Barela,
2015 UT 22, ¶ 17, 349 P.3d 676 (cleaned up); see also State v.
Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645 (stating that, in any
sufficiency challenge, we “review the evidence and all inferences
which may reasonably be drawn from it in the light most
favorable to the verdict” (cleaned up)).
20180076-CA 8 2019 UT App 186State v. Heath
¶25 In the instances where Heath’s sufficiency challenges are
unpreserved, he asks that we review them for plain error and
ineffective assistance of counsel. 5 To prevail on plain error
review, not only must Heath show “that the evidence was
insufficient to support a conviction of the crime charged,” he
must also show “that the insufficiency was so obvious and
fundamental that the trial court erred in submitting the case to
the jury.” State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. “An
example of an obvious and fundamental insufficiency is the case
in which the State presents no evidence to support an essential
element of a criminal charge.” State v. Prater, 2017 UT 13, ¶ 28,
392 P.3d 398 (cleaned up). Further, “an ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162(cleaned up), and to prevail on his ineffective assistance of
counsel claims, Heath must demonstrate that counsel’s failure to
raise the sufficiency issues to the trial court’s attention was both
objectively deficient and prejudicial, see State v. Guzman, 2018 UT
App 93, ¶ 55, 427 P.3d 401 (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). Among other things, the failure to raise
futile motions or objections challenging the sufficiency of the
evidence does not constitute ineffective assistance. State v.
Stringham, 2013 UT App 15, ¶ 5, 295 P.3d 1170 (per curiam).
¶26 Finally, Heath’s jury instruction challenge is unpreserved,
and he seeks review only under the ineffective assistance of
5. Heath also asks that we review the unpreserved sufficiency
claims for manifest injustice. As Heath acknowledges, “manifest
injustice” is generally synonymous with “plain error,” see State v.
Alinas, 2007 UT 83, ¶ 10, 171 P.3d 1046, and Heath argues his
sufficiency claims as though the two standards are synonymous.
We accordingly follow suit.
20180076-CA 9 2019 UT App 186State v. Heath
counsel doctrine. 6 As explained above, to prevail on this
challenge Heath must demonstrate that his counsel performed
deficiently with respect to the jury instruction errors and that the
deficient performance prejudiced him. State v. Parkinson, 2018 UT
App 62, ¶ 9, 427 P.3d 246.
ANALYSIS
I. The Other Acts Evidence
¶27 Before trial, the court ruled that certain evidence would
be admissible at trial under rule 404(b) of the Utah Rules of
Evidence. This evidence included testimony from J.T. and E.B.,
statements Heath made in police interviews, a 2011 DOPL letter
issued to Heath, and the 2014 DOPL probation and reprimand
orders (collectively, the Other Acts Evidence).
¶28 As a general matter, rule 404(b) bars propensity evidence:
“Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular
6. In his opening brief, Heath additionally sought review of this
issue under the plain error and manifest injustice doctrines. But
he concedes in reply that he invited the error, and thus he
abandons those doctrines and narrows his challenge to one for
ineffective assistance of counsel. See State v. Crespo, 2017 UT App
219, ¶ 22 n.5, 409 P.3d 99 (noting that this court may not review a
challenge to jury instructions for plain error if the error was
invited); see also State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742(“While a party who fails to object to or give an instruction may
have an instruction assigned as error under the manifest
injustice exception, a party cannot take advantage of an error
committed at trial when that party led the trial court into
committing the error.”(cleaned up)).
20180076-CA 10 2019 UT App 186State v. Heath
occasion the person acted in conformity with the character.”
Utah R. Evid. 404(b)(1). However, the evidence “may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. R. 404(b)(2); see also
State v. Verde, 2012 UT 60, ¶ 15, 296 P.3d 673 (explaining that this
list is not exhaustive), abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016.
¶29 Heath argues that the trial court erred in admitting the
Other Acts Evidence at trial, raising two main challenges to its
admission. First, he argues that the court erroneously admitted
this evidence to prove mens rea. Second, he argues that the
admission of this evidence allowed the State to derail the trial
with “irrelevant and prejudicial evidence” and contends that the
court should have required the jury to “decide the issue of guilt
or innocence solely on the basis of the demeanor and testimony
of [himself] and [Victim].” 7 We address each challenge in turn
and ultimately reject them.
A. Admitting the Other Acts Evidence to Prove Mens Rea
¶30 Heath argues that the trial court erred in admitting the
Other Acts Evidence to prove mens rea, asserting two specific
challenges to its admission for this purpose. First, he contends
that the testimony of J.T. and E.B. should not have been admitted
under the doctrine of chances exception to rule 404(b) because
7. Heath also argues that “the jury was never asked in the first
instance to make the foundational factual determination that the
conduct alleged by J.T. and E.B. was actually committed” and
asserts that this was error. This claim, however, was not
preserved, and Heath has not asked us to review it under an
exception to the preservation rule. Thus, we do not address it
further.
20180076-CA 11 2019 UT App 186State v. Heath
the State failed to establish the frequency element required
under that exception. Second, he contends that the trial court
erred in allowing the evidence to be admitted to prove the
specific intent requirement of his offenses as opposed to “the
general intent to commit the act.”
1. The Doctrine of Chances
¶31 The doctrine of chances is a unique analytical framework
used to admit evidence of other acts that would otherwise be
excluded by rule 404(b)(1). See State v. Lane, 2019 UT App 86,
¶ 18, 444 P.3d 553. The doctrine is “a theory of logical relevance
that rests on the objective improbability of the same rare
misfortune befalling one individual over and over.” Verde, 2012
UT 60, ¶ 47 (cleaned up). The Utah Supreme Court has
explained,
As the number of improbable occurrences
increases, the probability of coincidence decreases,
and the likelihood that the defendant committed
one or more of the actions increases. An innocent
person may be falsely accused or suffer an
unfortunate accident, but when several
independent accusations arise or multiple similar
accidents occur, the objective probability that the
accused innocently suffered such unfortunate
coincidences decreases. At some point, the
fortuitous coincidence becomes too abnormal,
bizarre, implausible, unusual or objectively
improbable to be believed.
Id. ¶ 49 (cleaned up). “[F]or evidence to be admitted under the
doctrine of chances, it must meet four foundational
requirements: materiality, similarity, independence, and
frequency.” State v. Lopez, 2018 UT 5, ¶ 54, 417 P.3d 116. The
requirement of frequency is at issue here.
20180076-CA 12 2019 UT App 186State v. Heath
¶32 The trial court carefully analyzed whether to admit the
Other Acts Evidence concerning J.T. and E.B. under the doctrine
of chances. It noted that the doctrine can be used to prove either
the actus reus or the required mens rea. See State v. Lowther, 2017
UT 34, ¶¶ 23, 25, 398 P.3d 1032. And it concluded that the
relative frequency required for application of the doctrine of
chances depends on the purpose for which the doctrine is being
used. See Edward J. Imwinkelried, The Use of Evidence of an
Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines
Which Threaten to Engulf the Character Evidence Prohibition, 51
Ohio St. L.J. 575, 597 (1990) [hereinafter Imwinkelried]. “When
the prosecutor invites the court to apply the doctrine to prove
the actus reus, the focus is on the frequency of a particular type
of loss—the death of a child in a person’s custody or the fire at a
person’s building.” Id.; see also Verde, 2012 UT 60, ¶ 61 & n.36
(relying on Imwinkelried in discussing the frequency
requirement of the doctrine of chances). But “[w]hen the
prosecutor asks the court to employ the doctrine to establish
mens rea, the relevant frequency is the incidence of the accused’s
personal involvement in a type of event—the discharge of a
weapon . . . , the possession of contraband drugs, or the receipt
of stolen property.” Imwinkelried at 597.
¶33 Here, the trial court allowed J.T.’s and E.B.’s testimonies
to prove only mens rea—that Heath did not touch Victim’s
genitals accidentally. Thus, the question of frequency centered
on Heath’s personal “involvement in a type of event”—the
accidental touching of his patients’ genitals during treatment. In
comparison to actus reus, where there is a greater likelihood that
relevant statistical data will be available, a trial court “is more
likely to have to rely on [its] common sense and knowledge of
human experience” when determining the level of frequency for
mens rea. Imwinkelried at 597–98.
¶34 In this regard, we agree with the trial court that the State
satisfied the frequency requirement with respect to J.T.’s and
20180076-CA 13 2019 UT App 186State v. Heath
E.B.’s testimonies. As the trial court observed, “For the average
person, the mistaken touching of another’s genitals [of the
nature at issue here] would be a once in a lifetime event.” But
Heath was accused of inappropriate touching of another’s
genitals by at least three people over roughly a five-year period.
Though the trial court noted that “the frequency of unintended
touching may be markedly higher” for chiropractors than those
in the general population, it reasoned on the basis of testimony
the State intended to (and did) present at trial that chiropractors
could take precautions to avoid inappropriate touching that
would make chiropractors “indistinct from people generally.” In
this respect, after the incident with J.T., DOPL sent a letter to
Heath encouraging him to adjust his practices to avoid similar
incidents in the future, yet Heath continued to be accused of
inappropriate touching. Based on the DOPL letter, Heath knew
the risks of inappropriate touching and the discomfort it caused
his patients.
¶35 Moreover, frequency “interact[s] with” similarity “to
become a safeguard against the doctrine of chances becoming a
work-around for the admission of otherwise improper
propensity evidence.” Lopez, 2018 UT 5, ¶ 57. And here, the
touching described by J.T. and E.B. was highly similar to the
touching described by Victim. Each was a patient of Heath, and
each described touching of her genital area, including the
clitoris, during treatment. J.T. testified that Heath “grind[ed]
back and forth in [her] crotch,” while Victim testified that, on
one occasion, Heath’s hand went “up and down, back and forth,
right over the seam of [her] yoga pants.” Similar to E.B.’s
testimony, the invasiveness of Heath’s touching of Victim
progressed in intensity from treatment to treatment, with Heath
waiting until later visits to touch the genital area. While at first
the touching seemed unintentional to E.B. and Victim, it became
apparent to both of them as the visits progressed that Heath was
touching their genitalia intentionally. As the trial court observed,
the high degree of similarity between the incidents involving J.T.
20180076-CA 14 2019 UT App 186State v. Heath
and E.B. and those involving Victim simply made “a repeated
mistake . . . less likely.”
¶36 In these circumstances, we agree with the trial court that
J.T.’s and E.B.’s testimonies were helpful in proving Heath’s
mens rea when he touched Victim. Accordingly, the trial court
did not abuse its discretion in determining that the State had
sufficiently shown the foundational requirement of frequency
for purposes of admitting J.T.’s and E.B.’s testimonies under the
doctrine of chances.
2. Admission of the Other Acts Evidence for Specific Intent
¶37 Heath also challenges the admission of the Other Acts
Evidence in general, contending that the trial court failed to limit
the jury’s use of the evidence to establishing only general intent.
He argues that the evidence could perhaps be relevant to
“counter a claim of mistake or accident for the touch” itself but
that it had “no bearing on or relevance to the specific intent
requirement” of the charged offenses. He thus asserts that the
trial court erred by failing to limit the jury’s consideration of the
Other Acts Evidence to only countering a claim of mistaken or
accidental touch.
¶38 We reject this argument. Heath fails to point us to any
place in the record where he raised this issue—limiting the jury’s
consideration of the Other Acts Evidence to general rather than
specific intent—to the trial court. See Salt Lake City v. Josephson,
2019 UT 6, ¶¶ 10–12, 435 P.3d 255 (setting forth the preservation
doctrine and its underlying policies, which require a party to
present the issue “to the trial court in such a way that the trial
court has an opportunity to rule on that issue” (cleaned up));
Holladay v. Storey, 2013 UT App 158, ¶ 34, 307 P.3d 584 (stating
that “it is not the appellate court’s burden to comb through the
record to verify whether, and where, [the appellant] preserved
20180076-CA 15 2019 UT App 186State v. Heath
this issue,” and declining to address an issue raised on appeal on
that basis); see also Utah R. App. P. 24(a)(5)(B).
¶39 Further, even assuming that this issue was preserved,
Heath does not develop his argument with citation to authority
and instead advances this point through conclusory statements
about the trial court’s supposed error. We decline to take up the
burden of research and argument that would be necessary to
resolve this issue. See Cheek v. Iron County, 2018 UT App 116,
¶¶ 24–25, 427 P.3d 522 (stating that “[a]n issue is inadequately
briefed when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing
court,” and concluding that the appellant had not carried her
burden on appeal because “she ma[de] no attempt to present
reasoned analysis supported by citations to legal authority,” as
required by our appellate rules (cleaned up)), aff’d sub nom. Cheek
v. Iron County Attorney, 2019 UT 50, 448 P.3d 1236; see also Utah
R. App. P. 24(a)(8).
B. Weighing Probative Value Against Unfair Prejudice
¶40 Heath also challenges the Other Acts Evidence by
asserting that the evidence was “only minimally relevant” and
that its admission prejudiced him. Specifically, he contends that
the “critical factual issue” for the jury was the respective
credibility of Heath and Victim and that, accordingly, the jury
should have been “required to decide the issue of guilt or
innocence solely on the basis of [his and Victim’s] demeanor and
testimony.” And by admitting the broad range of the Other Acts
Evidence, Heath asserts, the trial court allowed the case to
become “about everything and anything except for” proving the
elements of the charged offenses.
¶41 Heath does not develop his argument that the probative
value of the Other Acts Evidence was substantially outweighed
by unfair prejudice. The trial court determined under rule 403 of
20180076-CA 16 2019 UT App 186State v. Heath
the Utah Rules of Evidence that the probative value of the Other
Acts Evidence was not substantially outweighed by the danger
of unfair prejudice or confusion of the issues, particularly where
limiting instructions were available. 8 See generally Utah R. Evid.
403; State v. Balfour, 2018 UT App 79, ¶ 28, 418 P.3d 79(explaining that, in deciding whether to admit other acts
evidence, the trial court must determine whether that evidence
satisfies rule 403). Heath challenges these determinations by
labeling the State’s case as weak and asserting that the trial court
erred in allowing the State to hide that weakness by resorting to
“distraction with innuendo and speculation,” which forced him
to “expend significant resources and trial time responding.” But
he does not otherwise explain why the trial court’s rule 403
analysis was erroneous, why the limiting instructions failed to
mitigate any potential in the evidence toward unfair prejudice,
confusion, or distraction, or why any error in admitting the
evidence was harmful. Thus, Heath has not carried his burden of
persuasion on appeal. See Utah R. App. P. 24(a)(8); Cheek, 2018
UT App 116, ¶¶ 24–25.
¶42 In sum, we conclude that Heath has not demonstrated
that the trial court exceeded “the limits of reasonability” when it
admitted the State’s rule 404(b) evidence. See State v. Martin, 2017
UT 63, ¶ 18, 423 P.3d 1254 (cleaned up). We thus affirm the
court’s evidentiary decision.
II. Sufficiency of the Evidence
¶43 Heath contends that there was insufficient evidence to
convict him of any of the charges brought against him. Below,
we detail Heath’s contentions with respect to each conviction,
review the relevant statute, and recount the most important
8. To that end, limiting instructions were given to the jury for
each piece of the Other Acts Evidence.
20180076-CA 17 2019 UT App 186State v. Heath
evidence presented at trial. We conclude that none of Heath’s
challenges require reversal of his convictions.
A. Sexual Battery—Counts 1–3
¶44 Heath contends that the evidence at trial supporting the
sexual battery counts “fail[ed] to demonstrate in any manner the
element of [his] knowledge that his behavior would likely cause
affront or alarm to the person touched.” He asserts that he “always
acted normal” and that Victim returned for treatment multiple
times and “never once voiced any complaint or concern.” He
concedes that this particular sufficiency challenge was not
preserved.
¶45 Utah Code section 76-9-702.1 defines the crime of sexual
battery:
A person is guilty 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, . . . 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). 9
¶46 The evidence presented at trial allowed the jury to find
that Heath knew or should have known his actions would likely
cause Victim affront or alarm. Heath had been personally
advised that such touching is distressing. By the time he treated
Victim in 2012, Heath had received a complaint from J.T. relating
to the touching of her labia and a letter from DOPL instructing
9. Because there have been no material changes to this statute
since the crimes occurred, we cite the current version.
20180076-CA 18 2019 UT App 186State v. Heath
him to adjust his practices and confirming his representation
that he would adjust his practice to avoid any inappropriate
touching of patients. Thus, Heath knew that his touching of J.T.,
which was similar to his touching of Victim, would likely cause
affront or alarm.
¶47 Further, the evidence established that there was no
medical purpose for the touching. Doctor testified at trial that
chiropractors should “avoid any accidental, incidental or
intentional touching” through various techniques and opined
that there would have been no medical reason to touch Victim’s
genital area. Heath himself acknowledged that there is no
clinical reason to intentionally touch a woman’s genitalia when
treating lower back pain. Despite this, Heath rubbed Victim’s
genitalia long enough for Victim to experience an orgasm on two
occasions. Without any medical purpose for the touching, it was
reasonable for the jury to conclude Heath knew or should have
known that such touching would likely cause Victim—who was
seeking treatment from Heath for her lower back pain—affront
or alarm.
¶48 And contrary to Heath’s argument, Victim did express
some concern over Heath’s conduct. The first time Heath started
rubbing her genital area, Victim asked Heath what he was doing.
Heath said he was massaging a psoas attachment. The next visit,
Heath again started rubbing Victim’s genital area. Victim again
asked what he was doing, and Heath answered that he was
working the gracilis muscle. When Victim’s sister entered the
room, Heath moved his hand away from Victim’s genitalia and
worked instead on Victim’s thigh. This evidence further
supports a reasonable inference that Heath knew or should have
known his touching would likely affront or alarm Victim.
¶49 Finally, we reject Heath’s contention that the jury could
not reasonably conclude that he knew his touching would likely
affront or alarm Victim because Victim returned for treatment.
20180076-CA 19 2019 UT App 186State v. Heath
As we recently explained in State v. Jok, 2019 UT App 138, 449
P.3d 610, victims of sexual abuse “display a diverse range of
reactions to the harm they suffered,” including confusion and
disbelief. Id. ¶ 24. Given the varied possible responses to sexual
abuse, Heath should have known—even with Victim’s choice to
return—that his touching of her genitalia was likely to cause
affront or alarm. Victim was coming to Heath for treatment for
lower back pain. She gave no indication that she welcomed the
touching, and her inquiries to Heath suggested that she was
trying to convince herself that the touching was medically
appropriate.
¶50 In sum, the evidence was sufficient—or at least not so
obviously insufficient that the trial court committed plain error
“in submitting the case to the jury,” see State v. Holgate, 2000 UT
74, ¶ 17, 10 P.3d 346—to find that Heath knew or should have
known his massaging of Victim’s vaginal area while purporting
to treat lower back pain would likely cause Victim affront or
alarm, see Utah Code Ann. § 76-9-702.1(1). Thus, we affirm
Heath’s three convictions for sexual battery. 10
10. In addition to arguing plain error, Heath contends that
defense counsel was ineffective for not recognizing the same
alleged deficiencies in the State’s evidence on the sexual battery
counts. We reject Heath’s contention and conclude for the
reasons above either that any objection would have been futile,
see State v. Bell, 2016 UT App 157, ¶ 22, 380 P.3d 11 (“Failing to
file a futile motion does not constitute ineffective assistance of
counsel.” (cleaned up)), or that Heath has otherwise not shown
that “no reasonable attorney” would have failed to object to the
sufficiency of the evidence, see State v. Roberts, 2019 UT App 9,
¶ 29, 438 P.3d 885 (“Only when no reasonable attorney would
pursue the chosen strategy will we determine that counsel has
been constitutionally ineffective.” (cleaned up)).
20180076-CA 20 2019 UT App 186State v. Heath
B. Forcible Sexual Abuse—Count 4
¶51 Heath contends that there was insufficient evidence to
support the count 4 conviction of forcible sexual abuse for two
reasons: (1) the State failed to present evidence of specific intent
to arouse or gratify anyone’s sexual desire, and (2) the State
failed to present evidence of Victim’s nonconsent and Heath’s
mental state as to Victim’s nonconsent.
¶52 At the time of the offenses, Utah Code section 76-5-404
defined the crime of forcible sexual abuse as follows:
A person commits forcible sexual abuse if . . .
under circumstances not amounting to . . . object
rape, . . . the actor touches the anus, buttocks, or
any part of the genitals of another, or touches the
breast of a female, or otherwise takes indecent
liberties with another, . . . with the intent to arouse
or gratify the sexual desire of any individual,
without the consent of the other . . . .
Utah Code Ann. § 76-5-404(1) (LexisNexis 2012).
1. Specific Intent
¶53 Heath argues that while the jury was instructed as to the
statute’s requirement of specific intent to arouse or gratify sexual
desire, “the State failed in presenting evidence of it.” He asserts
that he acted normally, he did not say anything of a sexual
nature to Victim, and Victim “never gave any outward
indication he was doing something wrong.” He concludes that
“the surrounding circumstances do not evidence the requisite
specific intent” and that “the jury’s verdict [was] based purely
upon improper speculation.”
¶54 “[P]roof of a defendant’s intent is rarely susceptible of
direct proof . . . .” State v. Murphy, 617 P.2d 399, 402 (Utah 1980).
20180076-CA 21 2019 UT App 186State v. Heath
Accordingly, circumstantial evidence has long been used to
prove specific intent. See State v. Garcia-Mejia, 2017 UT App 129,
¶ 31, 402 P.3d 82; see also State v. Kennedy, 616 P.2d 594, 598 (Utah
1980) (“Wherever a special intent is an element of a criminal
offense, its proof must rely on inference from surrounding
circumstances.”); State v. Minousis, 228 P. 574, 576 (Utah 1924)
(“It is . . . well settled that . . . specific intent may be proved by
circumstantial, as well as direct, evidence . . . .”). When
circumstantial evidence is relied on to prove that element of an
offense, we follow two steps:
We must determine (1) whether the State presented
any evidence that [the defendant] possessed the
requisite intent, and (2) whether the inferences that
can be drawn from that evidence have a basis in
logic and reasonable human experience sufficient
to prove that [the defendant] possessed the
requisite intent.
Holgate, 2000 UT 74, ¶ 21 (cleaned up); see also Garcia-Mejia, 2017
UT App 129, ¶¶ 30–34 (applying these steps and holding that
there was evidence of specific intent to arouse or gratify sexual
desire despite the defendant not saying anything during his
abusive interactions with his children).
¶55 First, we ask whether the State presented any evidence that
Heath touched Victim with intent to arouse or gratify sexual
desire. See Garcia-Mejia, 2017 UT App 129, ¶ 32. We conclude
that it did. Victim explained the progression of Heath’s
treatment. On the fifth visit, Heath began to touch Victim over
the clothes. By the seventh visit, Heath “put his hands in
[Victim’s] underpants” and did so again at the eighth visit on
December 8. On December 8 specifically, Heath put his hands
under her underpants and moved his fingers in a circular
motion, moving the outer lip of Victim’s vagina “around and
around and around” for a few minutes. As the State points out,
20180076-CA 22 2019 UT App 186State v. Heath
Heath testified that treatment of the inner thigh could result only
in incidental or accidental contact with the labia, but the
touching Victim described was more than brief accidental or
incidental touching. And according to Doctor, there was no
medical reason for the touching and it could have been avoided
through a number of relatively simple techniques. In addition,
the State presented the Other Acts Evidence that, as shown, is
relevant to Heath’s intent. Supra ¶¶ 27–42. For example, the State
presented J.T.’s and E.B.’s testimonies about similar incidents
with Heath, which tended to prove Heath’s mens rea with
respect to the charged offenses under the doctrine of chances.
And the State presented Heath’s statements to police, the 2011
DOPL letter, and the 2014 DOPL report and order, which tended
to rebut Heath’s defense of mistaken or accidental touching. 11 Id.
¶56 Second, we must ask whether the inferences to be drawn
from the State’s evidence “have a basis in logic and reasonable
human experience sufficient to prove that” Heath possessed the
intent to arouse or gratify sexual desire. See Garcia-Mejia, 2017
UT App 129, ¶ 33 (cleaned up). Again, we conclude that they do.
The nature, duration, and progression of Heath’s touching of
Victim all give rise to a reasonable inference, completely in line
with human experience, that Heath acted with intent to arouse
or gratify sexual desire. There was no medical reason for the
touching, and Heath had been advised to take the necessary
precautions to avoid it. Not only did Heath not take precautions
with Victim, he touched Victim on several occasions, sometimes
11. The jury was instructed to consider the Other Acts Evidence
as evidence of Heath’s mental state at the time he treated Victim
and as bearing on whether the charged acts were mistaken or
accidental. As noted earlier, supra ¶¶ 37–39, Heath did not
preserve any challenge to these instructions. Thus, we assume,
for purposes of argument, that this evidence was properly
considered.
20180076-CA 23 2019 UT App 186State v. Heath
for several minutes at a time. For example, he put his hand
under her pants and moved the outer lip of her vagina “around
and around and around.” And on previous visits, Heath had
rubbed Victim’s genital area for several minutes, causing Victim
to experience an orgasm. These facts lead to a reasonable
inference that Heath’s touching was not merely incidental to
treatment of Victim’s lower back. Thus, Heath has not persuaded
us that no reasonable jury could find that he acted with specific
intent “to arouse or gratify . . . sexual desire” when he touched
Victim’s genitalia for minutes at a time. See Utah Code Ann.
§ 76-5-404(1). We therefore decline to reverse Heath’s conviction
on count 4.
2. Victim’s Nonconsent and Heath’s Mental State Regarding
Victim’s Nonconsent
¶57 Heath also challenges his conviction for forcible sexual
abuse on the grounds that “the State failed to prove
non-consent” and that “Heath acted with the requisite mens rea
as to any purported lack of consent.” In doing so, he largely
repeats his other arguments—Victim did not express a lack of
consent, did not resist, returned for subsequent treatments, and
gave no indication that she was uncomfortable. Further, he
asserts that “[w]ithout having been informed by any verbal or
non-verbal cues whatsoever indicating [Victim] was
uncomfortable,” he cannot have acted with the requisite mens
rea as to Victim’s nonconsent. These arguments were
unpreserved.
¶58 Utah Code section 76-5-404 includes the victim’s
nonconsent as an element of forcible sexual abuse. Utah Code
Ann. § 76-5-404(1) (LexisNexis 2012). And the code “requires
proof . . . that [the defendant] had the requisite mens rea as to
the victim’s nonconsent.” See State v. Barela, 2015 UT 22, ¶ 26, 349
P.3d 676. Nonconsent and, additionally, the defendant’s mental
state regarding nonconsent, “cannot be determined simply by
20180076-CA 24 2019 UT App 186State v. Heath
asking whether [the alleged victim] physically fought back or
attempted to escape.” See State v. Cady, 2018 UT App 8, ¶ 11, 414
P.3d 974 (cleaned up). Normally, consent (or the lack of it) “is a
fact-intensive, context-dependent question, decided on a case-
by-case basis.” Barela, 2015 UT 22, ¶ 39. As such, the question of
consent “has long [been] left . . . in the hands of the jury.” Id.
¶59 Utah Code section 76-5-406 identifies a number of
circumstances in which the crime of forcible sexual abuse “is
without consent.” Utah Code Ann. § 76-5-406(2) (LexisNexis
Supp. 2019). One of these circumstances concerns health-care
professionals, including chiropractors. Id. § 76-5-406(1)(a). An act
of forcible sexual abuse “is without consent” if
the actor is a health professional . . . , 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(2)(l). Heath makes the conclusory assertion that the
State did not establish that this health-professional circumstance
applied. But he does not address the evidence showing that
Heath was a chiropractor, Heath claimed to be treating Victim’s
psoas and gracilis muscles as he touched her genitalia, Victim
trusted Heath because his treatments were helping, and Victim’s
mother had recommended Heath as a chiropractor—all evidence
that supports the legal conclusion that Victim did not (and could
not) consent under the health-professional circumstance. In
short, Heath must show an “obvious and fundamental”
insufficiency on questions that are particularly fact-intensive. See
Holgate, 2000 UT 74, ¶ 17. And having failed to engage with this
20180076-CA 25 2019 UT App 186State v. Heath
evidence, he has not done so here.12 We therefore affirm his
conviction for forcible sexual abuse. 13
C. Object Rape—Count 5
¶60 Heath contends that the State failed to prove penetration
of the genital opening for purposes of object rape. He asserts that
Victim never used the word “penetration” and instead described
Heath has having touched the “outer lip of [her] vagina” 14 and
“on [her] clitoris.” He argues that her clitoris is not the requisite
“genital opening” contemplated by the object rape statute. In his
view, the “genital opening” means the “vaginal opening,” and
he points to supposed contextual cues in the statute, particularly
12. Heath also briefly argues that the State failed to prove that he
acted with “the requisite mens rea as to any purported lack of
consent” where the State did not present evidence showing that
he was at least reckless with respect to Victim’s nonconsent.
However, the same evidence discussed above also supports a
finding that Heath was at least reckless with respect to Victim’s
nonconsent.
13. Heath also makes an ineffective assistance of counsel claim
with respect to his unpreserved arguments on count 4. Heath,
however, has not shown that it was unreasonable under these
circumstances for defense counsel to not object to the sufficiency
of the evidence on the issues of nonconsent. See Roberts, 2019 UT
App 9, ¶ 29. Accordingly we reject this argument.
14. Victim and counsel often referred to the “vagina” at trial
when it is clear based on context that they intended to refer to
the vulva—the external part of a female’s genitalia. As Heath
notes in his briefing on appeal, the term vagina is “quite often
used colloquially to refer to the vulva” despite the fact that the
vagina is part of a female’s internal genitalia. (Cleaned up.)
20180076-CA 26 2019 UT App 186State v. Heath
the statute’s use of the parallel term “anal opening,” to support
his interpretation.
¶61 Utah Code section 76-5-402.2 defines object rape as:
A person who, without the victim’s consent, causes
the penetration, however slight, of the genital or
anal opening of another person . . . by any foreign
object, . . . including a part of the human body
other than the mouth or genitals, . . . with the intent
to arouse or gratify the sexual desire of any person,
commits [object rape] . . . .
Utah Code Ann. § 76-5-402.2(1) (LexisNexis 2017). 15
“Penetration” was first defined by our case law in State v.
Simmons, 759 P.2d 1152 (Utah 1988), in the context of rape of a
child. Id. at 1153–54. The definition was then extended to object
rape in State v. Patterson, 2017 UT App 194, 407 P.3d 1002. Id. ¶ 3.
These cases hold that “penetration” in both the rape and object
rape context means “entry between the outer folds of the
labia.” 16 Id. (cleaned up). In Simmons, our supreme court then
15. Because there have been no material changes to this statute
since the crime occurred, we cite the current version.
16. It appears that numerous courts agree, holding that “entry of
the anterior of the female genital organ, known as the vulva or
labia, is sufficient penetration to constitute rape.” James L.
Rigelhaupt Jr., Annotation, What Constitutes Penetration in
Prosecution for Rape or Statutory Rape, 76 A.L.R.3d 163 (1977); see,
e.g., State v. Toohey, 2012 SD 51, ¶ 22, 816 N.W.2d 120(interpreting statutory language similar to Utah’s “to mean that
evidence of vulvar or labial penetration, however slight, is
sufficient to prove penetration”); State v. Bowles, 52 S.W.3d 69, 74
(Tenn. 2001) (defining penetration and stating that “it is not
(continued…)
20180076-CA 27 2019 UT App 186State v. Heath
discerned insufficient evidence of penetration when the alleged
victim testified only that the defendant “had placed his penis on
her labial folds.” 759 P.2d at 1154 n.1. But see id. at 1161 (Hall,
C.J., concurring and dissenting) (stating that combined with
other facts in the case this conclusion “insult[ed] common sense
and the experience of all those sexually literate”). Conversely, in
Patterson, we held that there was sufficient evidence of
penetration when the victim testified that the defendant “tr[ied]
to put his fingers up” her genitalia, that he “separated the labia”
using two fingers, and that “[i]t really hurt.” 2017 UT App 194,
¶¶ 8, 19.
¶62 Here, Victim testified that Heath’s finger touched her
“right on [her] clitoris . . . in the middle of [her] vagina.” In
response to questions, Victim clarified that Heath had to “go
beyond [her] labia majora to touch [her] clitoris” and that she
“felt” his finger “actually go beyond [her] labia majora.”
Elsewhere in her testimony, Victim described the labia majora as
“the soft skin that’s the starting of the vagina, but not the . . .
inner, not the opening, not the clit[oris].”
¶63 Heath argues that this testimony was insufficient to prove
that he penetrated Victim’s genital opening. To do so, he
contends that Simmons and Patterson’s “penetration” definition
should not be credited. He points out that Simmons was a rape
case, not an object rape case, and asserts that neither Simmons nor
Patterson actually reviewed, interpreted, or “consider[ed] the
specific requirement of the object rape statute to penetrate the
(…continued)
necessary that the vagina be entered or that the hymen be
ruptured; the entering of the vulva or labia is sufficient” (cleaned
up)). Though this secondary source and the cases it cites discuss
rape and not object rape, the definition of “penetration” of the
female genitalia is consistent.
20180076-CA 28 2019 UT App 186State v. Heath
genital or anal opening.” Rather, according to Heath, Patterson
merely imported the definition of “penetration” announced in
Simmons without dealing with the fact that the rape statute and
object rape statute differ with respect to the “specific body part
required to be penetrated.”
¶64 To that end, Heath argues for a different interpretation of
“penetration” in relation to the genital opening under section
76-5-402.2. He asserts that, properly construed, section
76-5-402.2’s reference to “genital . . . opening” means “vaginal
opening.” He advances his conclusion by analogizing the
reference in the statute of “genital opening” to that of the “anal
opening,” arguing that, when read in context, the “anal
opening” means “the actual opening [where the gastrointestinal
tract ends and exits the body] and not the surrounding skin and
folds.” Extending the analogy, Heath argues that “genital
opening” must then mean the “vaginal opening” or,
alternatively, the vaginal “hole.” Thus, in his view, “an
inappropriate touch of the clitoris or even an inappropriate
touch of the protective skin and folds surrounding the clitoris
and the vulva” may be sexual battery or forcible sexual abuse
but it is not object rape, “because no opening has been penetrated.”
We first address Heath’s statutory construction argument, and
we then address the sufficiency of the evidence supporting his
conviction of object rape.
¶65 It is true that the rape and object rape statutes use slightly
different terminology with respect to “penetration.” The rape
statute refers to “sexual penetration,” Utah Code Ann.
§ 76-5-407(2)(a)(iii) (LexisNexis Supp. 2019), while the object
rape statute refers to “penetration . . . of the genital or anal
opening,” id. § 76-5-402.2(1) (2017). And as Heath points out,
neither Simmons nor Patterson interpreted the meaning of
“penetration” specifically with respect to a “genital opening.”
However, we conclude that the plain meaning of the phrase
“penetration . . . of the genital . . . opening” in section
20180076-CA 29 2019 UT App 186State v. Heath
76-5-402.2(1) is consistent with the definition of “penetration”
announced in Simmons and applied in Patterson. We thereby
reject Heath’s proffered interpretation.
¶66 The “primary goal” of statutory interpretation “is to
evince the true intent and purpose of the Legislature,” and the
“best evidence of the legislature’s intent is the plain language of
the statute itself.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011
UT 50, ¶ 14, 267 P.3d 863 (cleaned up). It is well-settled that in
interpreting statutes we presume that “the legislature used each
term advisedly according to its ordinary and usually accepted
meaning,” and that “the expression of one term should be
interpreted as the exclusion of another.” Id. (cleaned up); see also
State v. Sanders, 2019 UT 25, ¶ 17, 445 P.3d 453 (“As we examine
the text, we presume that the legislature used each word
advisedly.” (cleaned up)). See generally State v. Robertson, 2017 UT
27, ¶ 40, 438 P.3d 491 (stating that the judiciary is tasked with
“interpreting and applying legislation according to what appears
to be the legislature’s intent, neither inferring substantive terms
into the text that are not already there nor taking away from the
statutory text by ignoring it or rendering it superfluous”
(cleaned up)).
¶67 Heath’s argument turns in part on the meaning of
“opening” in the object rape statute; he asserts that “opening” in
this context means a “specified anatomical hole.” (Emphasis
added.) But the ordinary dictionary meaning of the term
“opening” is not so limited, and common synonyms include,
among other things, a “gap,” “vent,” “breach,” “space,” and
“slot.” See Opening, Dictionary.com, https://www.dictionary.com
/browse/opening?s=t [https://perma.cc/ST8P-SQXP]; Opening,
Merriam-Webster.com, https://www.merriam-webster.com/
dictionary/opening [https://perma.cc/EJ3W-55DZ]; Opening,
Thesaurus.com, https://www.thesaurus.com/browse/opening?s=
t [https://perma.cc/7Y8Q-D3QL]; see also State v. Lambdin, 2017
UT 46, ¶ 22, 424 P.3d 117 (“When interpreting statutes, we look
20180076-CA 30 2019 UT App 186State v. Heath
to the ordinary meaning of the words, using the dictionary as
our starting point.”).
¶68 Further, in the context of the object rape statute, it is
plain that the term “opening” is not limited to the vaginal
opening. See Lambdin, 2017 UT 46, ¶ 22 (“After determining
our starting point [from the dictionary definitions], we then
must look to the context of the language in question.” (cleaned
up)). The legislature used the term “genital . . . opening” in the
object rape statute, not “vaginal opening.” Utah Code Ann. § 76-
5-402.2(1) (emphasis added). The term “genital” is broadly
defined as “of or relating to the sexual organs.” Genital,
Dictionary.com, https://www.dictionary.com/browse/genital?s=t
[https://perma.cc/9VBP-GFKE]; Genital, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/genital
[https://perma.cc/J6TR-LMLT] (defining “genital” as “of, relating
to, or being a sexual organ”). And indeed, as the State points out,
accepted medical understanding establishes that female genitalia
have more than one opening, including the vaginal opening and
the opening between the labial folds. See Jennifer Knudtson
& Jessica E. McLaughlin, Female External Genital Organs, Merck
Manual, https://www.merckmanuals.com/home/women-s-health
-issues/biology-of-the-female-reproductive-system/female-extern
al-genital organs [https://perma.cc/GD4X-P5LX] (identifying a
female’s external genital organs, including the various
“openings,” and explaining that the labia majora are “folds of
tissue that enclose and protect the other external genital
organs”).
¶69 Given this, if the legislature intended to limit the meaning
of “penetration” to only the vaginal opening, it could have done
so. But it did not, and instead used the more inclusive term
“genital opening”—a choice in terminology that we must
presume was intentional. See Marion Energy, 2011 UT 50, ¶ 14.
Because the plain meaning of the term “genital opening”
necessarily includes more than simply the “vaginal opening,”
20180076-CA 31 2019 UT App 186State v. Heath
we disagree with Heath’s assertion that, in context, the meaning
of “genital opening” is strictly limited to the “vaginal opening.”
We also discern no other indication in the object rape statute that
the legislature intended “genital opening” to be narrowly
interpreted as “vaginal opening.” Thus, we cannot read into the
object rape statute the limitation that Heath urges. See Robertson,
2017 UT 27, ¶ 40. The statute’s plain language simply does not
support doing so.
¶70 The plain language reading of the term “genital opening”
in the object rape statute is consistent with the interpretation of
“penetration” decided in Simmons and applied in Patterson. The
courts in both cases determined that the “penetration” element
in the context of either rape or object rape is satisfied when the
penetration occurs “between the outer folds of the labia.”
Simmons, 759 P.2d at 1154; Patterson, 2017 UT App 194, ¶ 3.
Because the object rape statute uses the general and inclusive
“genital opening” terminology, and because one of the medically
acknowledged female genital openings is that between the labial
folds, it follows that the penetration element is satisfied upon
proof of entry “between the outer folds of the labia.” Simmons,
759 P.2d at 1154; Patterson, 2017 UT App 194, ¶ 3. And Heath has
not otherwise shown error in how the statute was interpreted in
Simmons and Patterson. 17 Thus, we conclude that, in defining
object rape, the legislature did not intend to limit the required
penetration of the “genital opening” to the “vaginal opening”
and that the interpretation of “penetration” set forth in Simmons
and Patterson are in line with a plain language reading of the
object rape statute.
17. We reiterate that numerous courts define penetration of the
female genitalia this way. See supra note 16. Though of course not
necessary to rule for Heath on his statutory argument, Heath
cites no case in which a court has interpreted statutory language
similar to Utah’s to require penetration of the vaginal opening.
20180076-CA 32 2019 UT App 186State v. Heath
¶71 Next, having interpreted the relevant terms, resolving
Heath’s sufficiency challenge is straightforward. Victim
explicitly testified that Heath went “beyond [her] labia majora to
touch [her] clitoris” “in the middle of [her] vagina.” Unlike in
Patterson, in which the victim did not explicitly state that the
defendant penetrated her genital opening and the jury had to
rely on competing inferences, no inferences were required here.
Victim testified directly to the question of penetration and,
though not using that exact word, described Heath touching her
clitoris and confirmed that he had to “go beyond [her] labia
majora” to do so. Thus, the jury reasonably found that Heath
penetrated Victim’s genital opening when he touched her
clitoris. See Utah Code Ann. § 76-5-402.2(1); see also State v.
Lerman, 2018 MT 5, ¶ 13, 408 P.3d 1008 (holding that there was
sufficient evidence of penetration based on “common sense
anatomy” because “[t]he outer portions of the vulva necessarily
are penetrated, however slightly, when the clitoris is touched”
(cleaned up)); Jett v. Commonwealth, 510 S.E.2d 747, 749 (Va. Ct.
App. 1999) (“[T]he clitoris lies within the labia majora; therefore,
evidence of penetration or stimulation of the clitoris is sufficient
to establish penetration of the labia majora . . . .”). We
accordingly affirm his conviction for object rape. 18
III. Jury Instructions
¶72 Heath contends that he received ineffective assistance of
counsel in regard to the jury instructions at his trial. We have no
need to describe the challenges in detail. Heath paints with a
18. Heath challenges his conviction for object rape with the same
argument he did with respect to his conviction for forcible sexual
abuse—namely, that there was no evidence of his specific intent
to arouse or gratify sexual desire. This argument fails for the
same reasons discussed above. See supra ¶¶ 53–56.
20180076-CA 33 2019 UT App 186State v. Heath
broad and indiscriminate brush, and he has failed to meet his
burden of demonstrating prejudice.
¶73 “To succeed on an ineffective assistance of counsel claim,
[a defendant] must demonstrate that his trial counsel’s
performance was deficient and that he suffered prejudice as a
result.” State v. Vallejo, 2019 UT 38, ¶ 36, 449 P.3d 39 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). There is no
need for us “to address both components of the inquiry,” id. ¶ 40(cleaned up), and courts often analyze prejudice without opining
on any objective deficiency in the representation, see Strickland,
466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”); State v.
Reid, 2018 UT App 146, ¶ 20, 427 P.3d 1261.
¶74 The burden to prove prejudice is on the defendant. State v.
Garcia, 2017 UT 53, ¶¶ 36–37, 424 P.3d 171. And it is no light
undertaking. Id. ¶ 44. The defendant must show that “but for the
error, there is a reasonable probability that the verdict would
have been more favorable to him.” State v. Apodaca, 2019 UT 54,
¶ 50, 448 P.3d 1255 (cleaned up). “[A] mere potential effect on
the outcome is not enough.” Id. Rather, the defendant must show
a “substantial” likelihood of a different result as a “demonstrable
reality and not [merely as] a speculative matter.” State v. Nelson,
2015 UT 62, ¶¶ 10, 28, 355 P.3d 1031 (cleaned up); see also
Apodaca, 2019 UT 54, ¶ 50 (stating that the prejudice requirement
“is a relatively high hurdle to overcome” in that “the likelihood
of a different result must be substantial” (cleaned up)).
¶75 Heath has not met his burden of demonstrating prejudice.
He asserts that the instructions were prejudicial because they
were “incomplete, legally inaccurate, and confusing.” But this
does not establish prejudice. Even if the instructions were
problematic, Heath must still show a prejudicial effect on the
outcome given the totality of the evidence at trial. Considering
20180076-CA 34 2019 UT App 186State v. Heath
the evidence in this case—Victim’s testimony, the Other Acts
Evidence, Doctor’s testimony, and Heath’s own admissions—it
is difficult to say that it is reasonably likely the jury would have
come to a different conclusion had the instructions been
different. At least, Heath has not hoed that row. We therefore
conclude on this basis that there was no demonstrable ineffective
assistance of counsel in regard to the jury instructions. 19
CONCLUSION
¶76 The trial court did not abuse its discretion in admitting
the Other Acts Evidence. Based in part on that evidence, there
was sufficient evidence for the jury to convict Heath of sexual
battery, forcible sexual abuse, and object rape. Finally, Heath’s
counsel was not constitutionally ineffective in not objecting to
jury instructions because Heath has not shown prejudice from
the lack of an objection. We affirm Heath’s convictions.
19. Heath also argues that if we determine “that the errors set
forth herein do not individually warrant reversal,” we should
“find the cumulative effect of all such errors do.” But there are
no errors to cumulate, and therefore cumulative error does not
apply. See State v. Squires, 2019 UT App 113, ¶ 45 n.10, 446 P.3d
581.
20180076-CA 35 2019 UT App 186