State v. Ray

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 12
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
ERIC MATTHEW RAY,
Respondent.
No. 20170524
Heard April 11, 2018
Filed March 9, 2020
On Certiorari to the Utah Court of Appeals
Fourth District, Provo
The Honorable Lynn W. Davis
No. 101401511
Attorneys: 1
Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen.,
Salt Lake City, for petitioner
Douglas J. Thompson, Provo, for respondent
JUSTICE PETERSEN authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Eric Matthew Ray was convicted of forcible sexual abuse
of R.M., who was fifteen years old at the time. He appealed the
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1 Amicus curiae attorneys are:
Jennifer Springer, Jensie L. Anderson, Salt Lake City, for the
Rocky Mountain Innocence Center.
STATE v. RAY
Opinion of the Court
conviction, and the court of appeals concluded Ray’s trial counsel
provided ineffective assistance because he did not object to the
jury instruction for forcible sexual abuse. The instruction included
an option to convict Ray if he took “indecent liberties” with R.M.,
but it did not define that phrase. The court of appeals concluded
counsel was ineffective because he did not object to the jury
instruction and ask the district court to either omit the phrase
“indecent liberties” or define it. The question before us is whether
the court of appeals erred in this determination.
¶2 Under the circumstances here, we conclude defense
counsel’s performance was not deficient. Accordingly, we reverse
and reinstate Ray’s conviction.
BACKGROUND 2
¶3 Ray, a twenty-eight-year-old man who was attending law
school in Illinois, accidentally texted R.M., a fourteen-year-old girl
living in Utah. Although Ray had texted the wrong number, the
two continued communicating via text messages, social media,
and eventually telephone. Over time, R.M. started to have
romantic feelings for Ray. He reciprocated. They discussed sex,
love, and marriage. And eventually, Ray flew to Utah over his
spring break to meet R.M. in person. At the time of Ray’s visit,
R.M. was fifteen years old.
¶4 On the first day of Ray’s visit, he picked up R.M. from
school and took her to his hotel room. They spent hours kissing
on his bed, and he touched her “bra” and “underwear areas.”
Finally, he dropped her off on a corner near her home. Over the
next three days, Ray continued to pick up R.M., take her to his
hotel room, and engage in progressively serious sexual activity—
except for one day when R.M. was grounded and only did
homework in Ray’s rental car for about an hour.
¶5 Although R.M. kept her interaction with Ray a secret
from her family, her parents eventually learned of it. Less than a
week after Ray left Utah, R.M. became extremely ill and was
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2 “When reviewing a jury verdict, we examine the evidence
and all reasonable inferences in a light most favorable to the
verdict, reciting the facts accordingly. We present conflicting
evidence only when necessary to understand issues raised on
appeal.” State v. Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565 (citation
omitted).
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hospitalized for ten days. When Ray learned R.M. was sick, he
repeatedly contacted the hospital and R.M.’s parents about her.
He claimed to be a school friend named “Edward Matthews.”
¶6 When “Edward Matthews” mentioned knowing about an
infection in R.M.’s vaginal area, R.M.’s mother considered this a
“red flag.” Looking for more information, R.M.’s mother found an
Edward Matthews on a list of R.M.’s Facebook friends. She then
found a picture that was tagged with both Ray’s name and the
name Edward Matthews. R.M.’s phone also contained photos of
Ray.
¶7 R.M.’s family contacted a neighbor who in turn contacted
a detective, informing the detective that the family was seeking
help in uncovering the connection between R.M. and Ray. The
detective went to the hospital and spoke with R.M.’s parents. He
then spoke with R.M., but for only about ten minutes because she
“was in a sedated state,” was “slow to respond,” and her answers
“started getting” incoherent. R.M. disclosed some information
about Ray and her contact with him.
¶8 The detective also posed as R.M. on Facebook and
engaged in a conversation with Ray, attempting to elicit more
information about Ray’s contact with R.M.
¶9 Ultimately, the State charged Ray with one count of
object rape, two counts of forcible sodomy, and one count of
forcible sexual abuse. In the district court proceedings, R.M.
testified at a preliminary hearing and at trial.
¶10 During Ray’s trial, R.M. testified about what took place
when Ray visited Utah. On the first day, a Wednesday, Ray met
R.M. at her school and took her to his hotel room. There, Ray gave
R.M. her first kiss. For hours the two talked, kissed, and lay on the
bed together. Ray also touched R.M.’s “bra” and “underwear
areas.” He dropped her off at a corner near her house over five
hours later.
¶11 On Thursday, Ray again met R.M. at her school. This
time, they were joined by R.M.’s friend and the friend’s boyfriend.
As her friends swam in the hotel pool, Ray and R.M. went to
Ray’s room, disrobed to their underwear, lay on the bed, and
kissed for about an hour. Ray touched R.M.’s breasts, both over
and under her bra. He also touched R.M.’s buttocks and her
vagina over her underwear. R.M. touched Ray’s “private parts”
over his underwear, but she refused his request for a “hand job.”
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Opinion of the Court
¶12 The two then got dressed and played a game Ray had
brought—“Sexy Truth or Dare”—with R.M.’s friend and her
boyfriend. Ray also showed them photos of sex toys. He drove
them home, again dropping R.M. off at the corner near her house.
¶13 On Friday, Ray again met R.M. at her school. But she was
grounded that day, so she just did homework for a short while in
Ray’s car.
¶14 Early Saturday morning, Ray texted R.M. about getting
together. They arranged for him to pick her up as she walked
toward her school, and he again took her to his hotel room. Ray
had decorated his room with flower petals and candles. They
started “making out.” After kissing awhile, R.M. took a shower
and shaved her pubic area with Ray’s razor. In an earlier
conversation, Ray had asked her to do this. She returned to the
room naked. Ray was also naked. As they kissed on the bed, Ray
touched outside R.M.’s vagina with his fingers. Still naked, the
two watched the movie “New Moon” from the Twilight Series.
Ray mentioned “a few times” how far they “could go without
getting in trouble with the law.”
¶15 R.M. testified that Ray then performed oral sex on her,
and she reciprocated.3 She also testified that Ray asked her if she
wanted to have sexual intercourse, but when she said she “wasn’t
ready,” he said “he was okay to wait.” Ray then gave R.M. “a
candle, a tee shirt, and a vibrator.” She testified that Ray told her
to “think of him” when she used it.
¶16 The State admitted into evidence Ray’s electronic
conversations with the detective posing as R.M. Ray’s statements
corroborated portions of R.M.’s testimony. Ray referenced: that
the two had “kissed” and “made out”; getting “into bed and
kiss[ing] for the rest of the day”; playing “truth or dare”; and “the
buzzy toy.”
¶17 Ray’s defense was that he had not engaged in any sexual
activity with R.M. In the alternative, he argued that if the jury did
believe R.M.’s testimony, any sexual activity was consensual. Ray
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3 The jury could not reach a unanimous verdict on the two
forcible sodomy counts, which were based on R.M.’s testimony
that she and Ray had engaged in oral sex with one another. We
include this testimony not as an established fact, but to describe
the events at trial.
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developed his defense through cross-examination of the State’s
witnesses, including R.M. Defense counsel cross-examined R.M.
about variances in the statements she made to the detective, to
family members, during her testimony at the preliminary hearing,
and during her testimony at trial.4
¶18 With regard to the forcible sexual abuse count, the district
court instructed the jury that in order to find Ray guilty, the jury
must find that each of the following essential elements of the
crime were proven beyond a reasonable doubt:
1. That the defendant, Eric Ray;
...
4. Did intentionally, knowingly, or recklessly;
5. Touched [sic] the anus, buttocks, or any part of
the genitals of another, or touched [sic] the
breasts of a female person 14 years of age or
older, or otherwise took indecent liberties with the
actor or another[;]
6. With the intent to arouse or gratify the sexual
desires of any person[;]
7. Without the consent of the other, regardless of
the sex of any participant.
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4 For example, counsel elicited that at trial, R.M. testified that
her feelings about Ray changed as early as September 2009, but on
prior occasions R.M. testified and shared with others that her
feelings changed in November or December 2009 or January 2010.
At the preliminary hearing, R.M. testified that before March 2010,
Ray had “not really” brought up sexual intercourse, which
counsel characterized as “the exact opposite” of what she testified
to at trial. At the preliminary hearing, R.M. testified that she and
Ray “made out” on the first day of his visit and that he did not
attempt to do anything other than kiss her that day. But at trial,
R.M. testified that on the first day Ray touched her on her bra and
underwear. And finally at trial, R.M. testified that after showering
and shaving on Saturday, she exited the shower without getting
dressed and lay on the hotel bed. But at the preliminary hearing,
R.M. testified that she showered, shaved, and then got dressed
and went back into the room.
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(Emphasis added.) To establish that R.M. did not consent, the
State had to prove that she was “14 years of age or older, but
younger than 18 years of age”; Ray was “more than three years
older than [R.M.]”; and Ray “entice[d] or coerce[d] [her] to submit
or participate.” See UTAH CODE § 76-5-406(11) (2010). 5
¶19 The district court did not provide a definition of
“indecent liberties.” And defense counsel did not object to this
instruction.
¶20 The jury found Ray guilty of forcible sexual abuse, but
acquitted Ray of object rape and could not reach a verdict on the
two counts of forcible sodomy. Ray appealed.
¶21 In the court of appeals, Ray made a number of
arguments, including that his trial counsel was ineffective for
failing to object to the jury instruction for forcible sexual abuse.
The court of appeals agreed, and it reversed Ray’s convictions and
remanded for a new trial.
¶22 We granted the State’s petition for certiorari. We exercise
jurisdiction under Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶23 “On certiorari, this court reviews the decision of the court
of appeals for correctness, giving no deference to its conclusions
of law.” State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650. “When we are
presented with a claim of ineffective assistance of counsel, we
‘review a lower court’s purely factual findings for clear error, but
[we] review the application of the law to the facts for
correctness.’” Ross v. State, 2019 UT 48, ¶ 65, 448 P.3d 1203
(alteration in original) (citation omitted).
ANALYSIS
¶24 The only question before us is whether the court of
appeals wrongly concluded that Ray’s counsel provided
ineffective assistance at trial. The Sixth Amendment to the United
States Constitution guarantees criminal defendants the effective
assistance of counsel, and we evaluate claims of ineffective
assistance under the standard articulated by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See
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5 Because the statute has since been amended, we cite to the
version of the statute then in effect.
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State v. Sessions, 2014 UT 44, ¶ 17, 342 P.3d 738. To prevail on this
claim, Ray must demonstrate that (1) his counsel’s performance
was deficient in that it “fell below an objective standard of
reasonableness” and (2) “the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687–88.
¶25 Ray argues his counsel performed deficiently when he
did not object to the undefined term “indecent liberties” in the
forcible sexual abuse jury instruction. A person is guilty of
forcible sexual abuse “if the victim is 14 years of age or older” and
the actor touches the anus, buttocks, or any part of
the genitals of another, or touches the breast of a
female, or otherwise takes indecent liberties with another
. . . with intent to cause substantial emotional or
bodily pain to any person or with the intent to
arouse or gratify the sexual desire of any person,
without the consent of the other.
UTAH CODE § 76-5-404(1) (2010) (emphasis added).
¶26 Accordingly, the forcible sexual abuse statute establishes
two variants of the offense. The first variant relates to the
touching of specific areas of another’s body (touching variant).
The second variant is more general and establishes that
“otherwise tak[ing] indecent liberties with another” constitutes
forcible sexual abuse (indecent liberties variant).
¶27 However, at the time of the offense here, the statute did
not define the term “indecent liberties.” 6 We have interpreted the
statute’s use of the disjunctive “or” in combination with the term
“otherwise” to mean that the indecent liberties variant
“proscribe[s] the type of conduct of equal gravity to that
interdicted in the first part” of the statute. In re J.L.S., 610 P.2d
1294, 1295 (Utah 1980); see also State v. Maestas, 2012 UT 46, ¶ 273
n.371, 299 P.3d 892 (noting that we have “applied the doctrine of
ejusdem generis” in interpreting this phrase). And we have
cautioned that the term “indecent liberties” “cannot derive the
requisite specificity of meaning required constitutionally” unless
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6 Until 2019, the statute did not define “indecent liberties.” But
it now does. See UTAH CODE § 76-5-416. The legislature has also
clarified that “any touching, even if accomplished through
clothing, is sufficient to constitute the relevant element” of forcible
sexual abuse. Id. § 76-5-407(3).
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it is considered to refer “to conduct of the same magnitude of
gravity as that specifically described in the statute.” In re J.L.S, 610
P.2d at 1296; see also State v. Lewis, 2014 UT App 241, ¶¶ 11–13, 337
P.3d 1053. Only then is “the potential infirmity for vagueness . . .
rectified.” In re J.L.S, 610 P.2d at 1296.
¶28 With regard to the first prong of Strickland, the court of
appeals concluded that in light of the precedent discussed above,
counsel’s acceptance of the jury instruction here amounted to
deficient performance. The court of appeals explained,
Neglecting to provide an instruction as to the
meaning of “indecent liberties” amounted to a
failure to instruct the jury as to all the essential
elements of the offense . . . [a]nd just as failure to
instruct the jury as to the elements of the charged
offense would constitute reversible error, in the
context of the case before us, the failure to request an
instruction explaining the element of “indecent
liberties” constitutes objectively unreasonable
assistance by counsel.
State v. Ray, 2017 UT App 78, ¶ 19, 397 P.3d 817 (citations
omitted).
¶29 The court of appeals reasoned that “defense counsel had
two basic options consistent with his duty to render effective
assistance. Either he could have requested an instruction
defining ‘indecent liberties,’ or he could have requested that the
problematic phrase be excised from the elements instruction.” Id.
¶ 20 (citation omitted). The court of appeals concluded that
“[t]here was no conceivable tactical benefit to [Ray]” in taking
neither of these actions, and therefore trial counsel performed
deficiently. Id. ¶¶ 19–20 (alterations in original).
¶30 The State argues that the court of appeals’ analysis was
incorrect. We agree.
¶31 First, not objecting to an error does not automatically
render counsel’s performance deficient. We agree with the court
of appeals that a district court instructing a jury on forcible sexual
abuse should define indecent liberties. See In re J.L.S., 610 P.2d at
1296 (cautioning that indecent liberties “cannot derive the
requisite specificity of meaning required constitutionally” unless
it is considered to refer “to conduct of the same magnitude of
gravity as that specifically described in the statute”). But it does
not automatically follow that counsel’s acquiescence to an
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instruction that did not do so was unreasonable per se. The United
States Supreme Court has rejected the notion that certain actions
by counsel are per se deficient “as inconsistent with Strickland’s
holding that ‘the performance inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances.’” Roe
v. Flores-Ortega, 528 U.S. 470, 478 (2000) (quoting Strickland, 466
U.S. at 688). “[T]he reasonableness of counsel’s challenged
conduct” must be judged “on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at
690.
¶32 Thus, it is not correct to equate counsel’s submission to
an error with deficient performance. Defense counsel did not have
a Sixth Amendment obligation to correct every error that might
have occurred at trial, regardless of whether it affected the
defendant. Counsel could pick his battles. We must view a
decision to not object in context and determine whether correcting
the error was sufficiently important under the circumstances that
failure to do so was objectively unreasonable—i.e., a battle that
competent counsel would have fought.
¶33 Second, the ultimate question is not whether counsel’s
course of conduct was strategic, but whether it fell below an
objective standard of reasonableness. In assessing counsel’s
performance, the court of appeals determined that counsel’s
assent to the jury instruction yielded “no conceivable tactical
benefit to [Ray].” Ray, 2017 UT App 78, ¶ 20 (alteration in
original). The court of appeals reasoned that if the defendant
demonstrates “there is no way that counsel’s actions might be
considered sound trial strategy, then the presumption [of
reasonable assistance] is overcome.” Id. ¶ 18 (citation omitted)
(internal quotation marks omitted).
¶34 But Strickland demands reasonable assistance, not
strategic assistance. See Flores-Ortega, 528 U.S. at 481 (“The
relevant question is not whether counsel’s choices were strategic,
but whether they were reasonable.”). It is correct that the United
States Supreme Court has directed reviewing courts to “indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689. But “these presumptions are simply
tools that assist [courts] in analyzing Strickland’s deficient
performance prong.” Bullock v. Carver, 297 F.3d 1036, 1046 (10th
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Cir. 2002). If it appears counsel’s actions could have been intended
to further a reasonable strategy, a defendant has necessarily failed
to show unreasonable performance. 7 See Strickland, 466 U.S. at 688.
But the converse is not true. “[E]ven if an omission is inadvertent”
and not due to a purposeful strategy, “relief is not automatic.”
Yarborough v. Gentry, 540 U.S. 1, 8 (2003).
[W]hether a counsel’s actions can be considered
strategic plays an important role in our analysis of
Strickland’s deficient performance prong. As a
general matter, we presume that an attorney
performed in an objectively reasonable manner
because his conduct might be considered part of a
sound strategy. Moreover, where it is shown that a
challenged action was, in fact, an adequately
informed strategic choice, we heighten our
presumption of objective reasonableness and
presume that the attorney’s decision is nearly
unchallengeable. The inapplicability of these
presumptions (because, for example, the attorney
was ignorant of highly relevant law) does not,
however, automatically mean that an attorney’s
performance was constitutionally inadequate.
Instead, we still ask whether, in light of all the
circumstances, the attorney performed in an
objectively reasonable manner.
Bullock, 297 F.3d at 1051.
¶35 Language in some of our appellate case law has muddied
this point. See, e.g., State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (“To
satisfy the first part of the test, defendant must overcome the
strong presumption that [his] trial counsel rendered adequate
assistance, by persuading the court that there was no conceivable
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7 We note the concern of amicus curiae that “virtually any act or
omission of trial counsel could be construed as part of a
hypothetical ‘strategy’ (rather than an error that is objectively
unreasonable).” But when inquiring whether counsel may have
had a sound trial strategy, it must fall “within the wide range of
reasonable professional assistance.” Strickland v. Washington, 466
U.S. 668, 689 (1984); see also State v. Vallejo, 2019 UT 38, ¶¶ 41–70,
449 P.3d 39. An objectively unreasonable strategy will not suffice.
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tactical basis for counsel’s actions.” (alteration in original) (citation
omitted) (internal quotation marks omitted)); Lewis, 2014 UT App
241, ¶ 13 (finding counsel deficient where there “was no
conceivable tactical benefit” to his omission); State v. Doutre, 2014
UT App 192, ¶ 24, 335 P.3d 366 (“If clearly inadmiss[i]ble evidence
has no conceivable benefit to a defendant, the failure to object to it
on nonfrivolous grounds cannot ordinarily be considered a
reasonable trial strategy.”).
¶36 We take the opportunity to clarify and realign our case
law on this point with United States Supreme Court precedent. To
be clear, it was not error for the court of appeals to assess whether
counsel may have had a sound strategic reason for not objecting
to the jury instruction. Indeed, the United States Supreme Court
has directed that defendants must overcome such a presumption.
See Strickland, 466 U.S. at 689. But when the court of appeals
concluded there was no strategic reason for counsel to not object
to the instruction, the deficiency analysis was not at an end. A
reviewing court must always base its deficiency determination on
the ultimate question of whether counsel’s act or omission fell
below an objective standard of reasonableness. Here, that means
we must ask whether defining indecent liberties was sufficiently
important under the circumstances that counsel’s failure to argue
for a clarifying jury instruction fell below an objective standard of
reasonableness. See id.
¶37 Under the circumstances here, we disagree with the court
of appeals’ conclusion that counsel’s acquiescence to the jury
instruction could not have been sound strategy. Importantly,
neither side put the precise meaning of “indecent liberties” at
issue. The State focused on the specific touching variant of forcible
sexual abuse, not “indecent liberties.” 8
¶38 And the definition of “indecent liberties” was not
pertinent to Ray’s defense. Ray’s primary defense was that he had
not engaged in sexual activity with R.M. at all. Counsel pursued
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8 The State focused on evidence related to the touching variant:
i.e., that Ray had touched R.M.’s breasts over and under her bra,
her buttocks, and her vagina. The State briefly mentioned
indecent liberties only one time in its closing argument,
connecting it to R.M.’s testimony that she had “touched [Ray’s]
private part in the front.”
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this strategy by cross-examining R.M. and highlighting
inconsistencies in her various statements. He devoted most of his
closing argument to challenging R.M.’s credibility as a witness,
telling the jury to “think about all the lies that she’s told.” In the
alternative, he argued that if the jury did believe her, there had
been no enticement or coercion because the entire relationship
was consensual. Importantly, Ray did not parse the evidence of
sexual conduct to argue that it did not rise to the level of forcible
sexual abuse.
¶39 Within that context, counsel could have made a
“reasonable professional judgment,” Strickland, 466 U.S. at 690,
not to draw the State’s attention to the indecent liberties variant.
While the State did not focus its attention on indecent liberties, it
could have. The statute gave the State the option of proving either
variant of forcible sexual abuse.
¶40 And counsel could have reasonably concluded there was
credible evidence before the jury that, while it did not fit within
the specific touching variant, could have constituted indecent
liberties. For example, R.M. testified that in addition to Ray
touching her, she and Ray spent hours “making out” in a hotel
room, watched a movie together while they were naked, and that
she had touched the front of his “private parts.”
¶41 And Ray’s own statements corroborated much of this. In
his electronic communications with the detective posing as R.M.,
Ray referenced: that the two had “kissed” and “made out”;
getting “into bed and kiss[ing] for the rest of the day”; playing
“truth or dare”; and “the buzzy toy.”
¶42 In light of this evidence, which came partly from Ray
himself, counsel could have reasonably concluded that clarifying
indecent liberties would not help clear Ray and could instead
broaden the State’s arguments against him. While counsel’s focus
was that the inconsistencies in R.M.’s statements showed she
could not be believed at all, counsel could have reasonably judged
that even if the jury did not fully accept this argument, the
inconsistencies he highlighted would more effectively undermine
the State’s proof on charges involving specific acts rather than
more general “indecent liberties.”
¶43 We conclude counsel could have reasonably preferred the
State to remain focused on the specific touching variant of forcible
sexual abuse, and chosen not to draw the State’s attention to the
indecent liberties variant by objecting to the related jury
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instruction. 9 Accordingly, Ray has failed to overcome the “strong
presumption” that his counsel exercised reasonable professional
judgment.
¶44 We clarify, however, that even if we were unable to
conceive of a possible sound strategy behind counsel’s conduct, it
would not have ended our analysis. We would have proceeded to
determine whether correcting the erroneous jury instruction was
sufficiently important that counsel’s inaction was objectively
unreasonable. In light of the fact that neither side had put the
meaning of indecent liberties at issue, and that it was not germane
to the defense, we likely would have arrived at the same
conclusion.
¶45 Because we conclude counsel’s performance was not
deficient, we do not address the prejudice prong of Strickland.
CONCLUSION
¶46 We conclude that Ray’s counsel did not provide
ineffective assistance. Accordingly, we reverse and reinstate Ray’s
conviction. We remand to the court of appeals to address Ray’s
remaining claims.
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9 The court of appeals assumed counsel could have
successfully asked for “indecent liberties” to be either clarified or
excised. But the indecent liberties alternative is statutorily
established, and there was trial evidence in support of it. (For
example, in its closing the State referenced R.M.’s testimony that
she had “touched [Ray’s] private part in the front,” which is not
specifically listed in the touching variant of forcible sexual abuse
but would likely be deemed equally serious by a factfinder.)
Accordingly, we are not certain that if defense counsel had
objected to the term as overly vague, the court would have given
counsel the option of deleting it, because a definition would have
addressed counsel’s concern.
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