State v. Cady

2018 UT App 8THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MICHAEL AARON CADY,
Appellant.
Opinion
No. 20151018-CA
Filed January 11, 2018
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 131903414
Joanna E. Landau, Michael D. Misner, Elise C.
Lockwood, and Diana K. Pierson, Attorneys
for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 No means no. So does “unh-unh,” especially when
accompanied by a host of other nonverbal cues—such as
pushing an assailant away, turning away from him, crying, and
curling up in fetal position. When Defendant Michael Aaron
Cady ignored Victim’s several expressions of nonconsent, he
committed object rape. He now challenges a jury’s conviction of
him for that crime, arguing the evidence was insufficient to
support a conclusion (1) that Victim did not consent to the
encounter or (2) that he was reckless with regard to her
nonconsent. He also argues that because the jury returned
State v. Cady
inconsistent verdicts, his conviction must be reversed. We
disagree and affirm his conviction.
BACKGROUND
¶2 Victim was friends with Defendant’s wife when she
stayed on the couple’s couch one evening. Another friend slept,
“passed out” on the floor nearby. Victim had not yet fallen
asleep when Defendant came into the living room, knelt down
beside her, and started “rubbing her midsection over her
blanket.” Victim was turned away from Defendant, facing the
back of the couch. Defendant proceeded to touch Victim under
the blanket, whisper something in her ear, and kiss her shoulder
and neck. Victim’s response to these advances was to push his
hand off of her and say “unh-unh.” Defendant then tried to pull
Victim’s pants down. Victim shook her head and held onto her
pants, curling up her legs.
¶3 Defendant eventually succeeded in pulling Victim’s pants
down and “got behind [Victim] on the couch, where [her] legs
were folded towards [her] belly,” so Victim tried to push him
away with her arm and leg. Rather than leave her alone,
Defendant twisted Victim’s arm behind her, slapped her arm
down, and then Victim felt something rubbing against her
vagina and buttocks. Defendant next inserted something “very
sharp” into Victim’s vagina, got up, and left the room. While
Victim did not testify as to what this sharp object was—only that
it did not feel like a penis—Defendant acknowledged in a police
interview (which was presented to the jury) that “he had put his
fingers in [Victim’s] vagina.” We thus talk in terms of digital
penetration throughout this opinion.
¶4 For this incident, the State charged Defendant with object
rape. A jury convicted him on that charge.
¶5 Separate from this crime, there were two additional
sexual encounters between Defendant and Victim. The
20151018-CA 2 2018 UT App 8State v. Cady
circumstances surrounding those encounters are pertinent
insofar as they relate to Defendant’s claim that Victim’s account
of the object rape was inherently improbable. One of these
encounters occurred five minutes after the object rape. The other
had taken place more than a year before. 1
¶6 After inserting his fingers into Victim’s vagina, Defendant
left the room for approximately five minutes. When he came
back, he had sex with Victim. Victim maintained that the sex was
not consensual. She testified that she tried to pull her pants back
up, was crying, and remained in fetal position. We refer to this
encounter as the April incident.
¶7 More than a year before the object rape, Defendant and
Victim had had sex, which Victim maintained was
nonconsensual. During that earlier incident, Victim also had
been staying on Defendant’s couch. Defendant entered the living
room after his wife had gone to bed and curled up on the couch
behind Victim. Victim testified that she had closed her eyes and
remained quiet. Defendant pulled down Victim’s pants, rubbed
his penis around her vagina and buttocks, and then inserted his
penis into her vagina. During penetration, Victim testified, she
had started crying and reached behind her to push Defendant
away, “but it didn’t work.” After Defendant got up, saying
something like “thanks for a great night,” he returned to the
bedroom. Victim pulled her pants back up and remained on the
couch crying. We refer to this encounter as the January incident.
¶8 Victim reported all three incidents to the police on the
morning after the object rape. Based on her assertion that she
had not given her consent to any of the encounters, the State
charged Defendant not only with object rape but also with two
counts of rape. At trial, the jury acquitted Defendant of the two
rape charges. He now appeals his conviction for object rape.
1. Defendant agreed that these encounters took place; the
dispute at trial was whether they were consensual.
20151018-CA 3 2018 UT App 8State v. Cady
ANALYSIS
¶9 The focus of this appeal is consent—whether the State
proved beyond a reasonable doubt Victim’s lack of consent to
digital penetration and Defendant’s mental state as to her lack of
consent. More particularly, Defendant contends that because the
evidence of nonconsent was not credible and thus was
insufficient to support a conviction for object rape, that
conviction should be overturned. When on appeal a defendant
argues that there was insufficient evidence to support his or her
conviction,
we may reverse only when it is apparent that there
is not sufficient competent evidence as to each
element of the crime charged. Our review of the
evidence itself is deferential. We may reverse a
verdict only when the evidence, so viewed, is
sufficiently inconclusive or inherently improbable
such that reasonable minds must have entertained
a reasonable doubt that [the] defendant committed
the crime for which he or she was convicted.
State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719 (cleaned up). 2
Necessary to our analysis, then, are the elements of object rape.
2. The parenthetical “cleaned up,” while perhaps unfamiliar, is
being used with increasing frequency to indicate that internal
quotation marks, alterations, and/or citations have been omitted
from a quotation. For an example of its use in a published
opinion, see United States v. Reyes, 866 F.3d 316, 321 (5th Cir.
2017). For a more thorough discussion regarding the practicality
of the parenthetical, see Jack Metzler, Cleaning Up Quotations,
Journal of Appellate Practice and Process (forthcoming
2018), https://ssrn.com/abstract=2935374 [https://perma.cc/XRQ4-
WCLX]. Finally, for a graphic representation of the phrase’s
trend in popularity among legal writing circles, see
(continued…)
20151018-CA 4 2018 UT App 8State v. Cady
¶10 To be found guilty of object rape under the facts of this
case, Defendant must have (1) caused the penetration, however
slight, of Victim’s genital opening (2) without her consent (3) by
any foreign object, including part of the human body other than
the mouth or genitals (4) with intent to cause substantial
emotional or bodily pain to Victim or with the intent to arouse or
gratify the sexual desire of any person. See Utah Code Ann. § 76-
5-402.2 (LexisNexis Supp. 2017). Because Defendant
acknowledged that he had put his fingers in Victim’s vagina,
neither element (1) nor (3) was in dispute. See id. And because
Defendant maintained that the encounter was consensual, he
seems to, at least implicitly, acknowledge that he did so “with
the intent to arouse or gratify the sexual desire of any person.”
See id. But he challenges the evidence of his mental state when it
comes to the general mens rea for object rape. He specifically
argues that the State “failed to prove [Defendant] acted
recklessly as to [Victim’s] non-consent to digital penetration, as
he did not ‘consciously disregard[] a substantial and
unjustifiable risk that’ [Victim] did not consent to the digital
penetration.” (Quoting Utah Code Ann. § 76-2-103(3)
(LexisNexis 2012).) We thus first tackle the question whether
sufficient evidence supported the jury’s finding that Victim did
not consent. Because we answer that question in the affirmative,
we then consider whether sufficient evidence supported the
jury’s finding that Defendant acted recklessly with regard to that
lack of consent. Finally, we address Defendant’s contention that
inconsistent verdicts render his conviction unsupported.
I. Nonconsent
¶11 The evidence at trial was sufficient to support a finding
that Victim did not consent to digital penetration. A victim
(…continued)
@SCOTUSPlaces, Twitter (Sept. 22, 2017, 7:03 AM),
https://twitter.com/SCOTUSPlaces/status/911229408689696768
[https://perma.cc/4FKJ-QYSE].
20151018-CA 5 2018 UT App 8State v. Cady
might “express[] lack of consent through words or conduct.”
Utah Code Ann. § 76-5-406(1) (LexisNexis Supp. 2017).
“Nonconsent cannot be determined simply by asking whether a
person physically fought back or attempted to escape.” State v.
Reigelsperger, 2017 UT App 101, ¶ 80, 400 P.3d 1127. Rather,
“[t]he essence of consent is that it is given out of free will, and
determining whether someone has truly consented requires
close attention to a wide range of contextual elements, including
verbal and nonverbal cues.” Id. ¶ 81 (cleaned up).
¶12 The contextual elements involved in this case included
both verbal and nonverbal cues. Victim said “unh-unh” when
Defendant approached her on the couch. Defendant does not
dispute that she said this, nor does he dispute that “unh-unh”
means “no.” 3 Further, Victim testified that she pushed
Defendant’s hand off of her, held her pants up when Defendant
first tried to pulled them down, and pushed against Defendant
with her arm and leg, all while crying and curling up in a ball,
facing away from Defendant.
¶13 Defendant nevertheless contends that this testimony was
insufficient because it “did not establish that she expressed a
lack of consent by words or conduct.” He argues that it was not
enough for Victim to say “‘unh-unh’ only one time but then
exhibit[] vague body language.” 4 We disagree and conclude that
3. Defendant’s subjective interpretation of this verbal cue is
discussed in our analysis of whether Defendant was reckless as
to Victim’s nonconsent. See infra ¶¶ 29–31.
4. Defendant rests his argument, in part, on his statement to
police that after Victim said “unh-unh,” he “told her that if she
had a problem to tell him to go away.” Victim maintained that in
response, she “was shaking her head no.” We discuss the
implications of this exchange in greater detail when discussing
whether Defendant was reckless as to Victim’s nonconsent. See
infra Part II.
20151018-CA 6 2018 UT App 8State v. Cady
Victim’s verbal and nonverbal conduct was sufficient for a jury
to find that she did not consent to Defendant’s conduct.
¶14 To begin, our supreme court has previously indicated that
“under Utah rape law, ignoring a victim’s ‘no,’ standing alone,
may be sufficient for a conviction for rape, even without the use
or threat of force.” See State v. Hammond, 2001 UT 92, ¶ 17, 34
P.3d 773. Because both rape and object rape require a finding of
nonconsent, see Utah Code Ann. §§ 76-5-402, 76-5-402.2, we see
no reason why the supreme court’s pronouncement should not
apply in the present case. Thus, Defendant’s decision to ignore
Victim’s “unh-unh” might alone have been sufficient to sustain
Defendant’s object rape conviction. See Hammond, 2001 UT 92,
¶ 17. And the jury heard more evidence of nonconsent than
Victim’s “unh-unh.” It also heard testimony regarding Victim’s
nonverbal indications of nonconsent. See Utah Code Ann. § 76-5-
406(1) (explaining that a victim’s lack of consent may be
expressed “through words or conduct”).
¶15 Given Victim’s account of crying, pushing against
Defendant, and closed body language, which account the jury
apparently credited, we will not disturb the jury’s finding of
nonconsent.
As a general rule, consent—or nonconsent, to put it
in terms of an element of a crime—is a fact-
intensive, context-dependent question, decided on
a case-by-case basis. To determine whether a
victim has truly consented, the factfinder must pay
close attention to the verbal and nonverbal cues
given by the victim and to a wide range of other
elements of context. These and other contextual
nuances are the reason why, as a general rule, our
law has long left the matter of consent in the hands
of the jury.
State v. Barela, 2015 UT 22, ¶ 39, 349 P.3d 676 (footnote and
citation omitted).
20151018-CA 7 2018 UT App 8State v. Cady
¶16 Defendant separately argues that because Victim’s
testimony was inherently improbable and internally
inconsistent, his conviction cannot stand. He argues that
credibility issues with Victim’s testimony made “any testimony
as to her non-consent to object rape[] ‘so weak that no reasonable
jury could find the defendant guilty beyond a reasonable
doubt.’” (Quoting State v. Robbins, 2009 UT 23, ¶ 18, 210 P.3d
288.) In so arguing, Defendant misapprehends our jurisprudence
regarding inherent improbability and internal inconsistency.
A. Inherent Improbability
¶17 Although our supreme court has established a significant
barrier in succeeding on claims of inherent improbability,
Defendant nevertheless attempts to fit his argument within the
confines of this narrow doctrine. He fails.
¶18 The predominant case for considering claims of inherent
improbability is State v. Robbins. In that case, our supreme court
clarified “the scope of the inherent improbability doctrine.” Id.
¶ 13. It is difficult to successfully establish such a claim on
appeal. Indeed, in State v. Prater, the supreme court focused in
on minute details in Robbins that allowed for a determination of
inherent improbability: “It was the inconsistencies in the child’s
testimony plus the patently false statements the child made plus
the lack of any corroboration that allowed this court to conclude
that insufficient evidence supported Robbins’s conviction.” 2017
UT 13, ¶ 38, 392 P.3d 398 (emphasis in original). Defendant’s
arguments in the present case do not add up to a conclusion that
Victim’s testimony was inherently improbable.
¶19 “[W]itness testimony is inherently improbable and may
likewise be disregarded if it is (1) physically impossible or
(2) apparently false.” Robbins, 2009 UT 23, ¶ 16. And our
supreme court has specified when testimony fits into one of
these two categories: “Testimony is physically impossible when
what the witness claims happened could not have possibly
occurred. . . . On the other hand, testimony is apparently false if
20151018-CA 8 2018 UT App 8State v. Cady
its falsity is apparent, without any resort to inferences or
deductions.” Id. ¶ 17 (cleaned up). Furthermore, “the definition
of inherently improbable must include circumstances where a
witness’s testimony is incredibly dubious and, as such,
apparently false.” Id. ¶ 18.
¶20 In very general terms, Defendant argues that Victim’s
testimony was “similar to cases where Utah courts have
disregarded witness testimony as . . . ‘inherently improbable.’”
(Quoting id.) But he does not specify whether or how the
testimony was physically impossible or apparently false. Instead,
he points to evidence that might have undermined the
credibility of Victim’s testimony. However, this sort of evidence
does not fit within the framework for considering inherent
improbability.
¶21 We recently had occasion to consider when the “Robbins
inherent improbability test does not apply.” See State v. Crespo,
2017 UT App 219, ¶ 28, petition for cert. filed, Nov. 27, 2017 (No.
20170920). In Crespo, we explained that Robbins was inapplicable
where “there was circumstantial evidence presented to the jury
that supported finding [the defendant] had perpetrated the
crimes charged,” and “other evidence corroborated . . .
testimony” the defendant later claimed was inherently
improbable. Id. ¶¶ 28–31; see also Prater, 2017 UT 13, ¶¶ 39–41
(explaining that witnesses’ inconsistent statements and plea
deals were insufficient to render the witnesses’ testimonies
inherently improbable or apparently false). 5
5. State v. Prater, 2017 UT 13, 392 P.3d 398, illustrates when
credibility attacks do not “invoke the inherent improbability
exception.” Id. ¶ 39 (quoting State v. Robbins, 2009 UT 23, ¶ 22,
210 P.3d 288). In that case, the defendant raised issues relating to
witness testimony when the witnesses “all made statements to
police shortly after the [crime] that contradicted their trial
testimony” and enjoyed “favorable treatment offered by the
(continued…)
20151018-CA 9 2018 UT App 8State v. Cady
¶22 Similarly, Robbins is inapplicable here. While it is
understandable that a criminal defendant would want to cast his
argument in terms of inherent improbability—because it allows
a court to reassess a jury’s credibility determination—
Defendant’s particular inherent improbability claim is not well
taken. Instead, we consider his to be a garden-variety claim of
insufficient evidence that he unsuccessfully tries to fit into the
inherent-improbability box. At base, he contends that Victim’s
testimony should be disregarded because there was evidence
presented that arguably undercut Victim’s credibility. For
instance, he highlights that Victim “came voluntarily to the
apartment where she knew she would sleep on the same couch
where she later claimed she had been raped” during the January
incident. He also relies on evidence that Victim “threatened a
witness to prevent the jury from hearing credible testimony” and
“failed to indicate nonconsent at the time,” along with “her
boyfriend’s testimony that he and [Victim] had sexual
intercourse during her high-risk pregnancy.” 6 But none of this
evidence goes to inherent improbability. At best, it operated to
undermine Victim’s credibility by countering her testimony. Cf.
(…continued)
State.” Id. ¶¶ 39, 41. Our supreme court specified that
“inconsistent statements do not render . . . testimony ‘apparently
false’” and that “a plea deal by itself does not come within
shouting distance of successfully demonstrating that a witness’s
testimony is ‘apparently false’ or that it falls under any of the
other labels we have used to describe testimony that a
reasonable jury could not rely upon to convict.” Id.
6. At the time of the object rape and April incident, Victim was
seven months pregnant and had experienced difficulties with the
pregnancy. When she was with Defendant and his wife at their
apartment, Victim had told them that, based on what her doctor
had told her about the pregnancy, she could not have sex. But
there was testimony at trial that Victim and her partner had sex
the day before the April incident.
20151018-CA 10 2018 UT App 8State v. Cady
State v. Garcia-Mejia, 2017 UT App 129, ¶¶ 20–28, 402 P.3d 82(considering a claim that victim testimony was inherently
improbable and concluding that inconsistencies and contrary
evidence did not render the testimony inherently improbable;
instead, it created a credibility issue to be weighed by the jury).
None of this evidence leads to a conclusion that Victim’s
testimony was physically impossible or apparently false. This is
especially true where much of Victim’s testimony was
corroborated—by Defendant himself.
¶23 There is perhaps no more axiomatic statement when
reviewing jury verdicts than this: The “choice between
conflicting testimony is within the province of the jury.” State v.
Pedersen, 802 P.2d 1328, 1330 (Utah Ct. App. 1990) (cleaned up);
see also State v. Black, 2015 UT App 30, ¶ 19, 344 P.3d 644 (“When
the evidence presented is conflicting or disputed, the jury serves
as the exclusive judge of both the credibility of witnesses and the
weight to be given to particular evidence.” (cleaned up)).
Because Defendant’s argument regarding inherent improbability
relies on evidence that is neither physically impossible nor
apparently false but instead implicates Victim’s credibility as
compared to other witnesses, we will not disturb the jury’s
verdict.
B. Internal Inconsistency
¶24 When a witness’s testimony is “internally inconsistent
and conflict[s] as to the material elements of the crime charged,”
an appellate court might conclude that the evidence was
insufficient to support a guilty verdict. See id. at 1330–31. And
“[s]ubstantial inconsistencies in a sole witness’s testimony,
though not directed at the core offense, can create a situation
where the prosecution cannot be said to have proven the
defendant’s guilt beyond a reasonable doubt.” State v. Robbins,
2009 UT 23, ¶ 17, 210 P.3d 288.
¶25 Defendant argues that the jury’s finding of nonconsent
necessarily rested on Victim’s testimony and that Victim’s
20151018-CA 11 2018 UT App 8State v. Cady
testimony thus “had to be credible to support the conviction.”
First, this is not necessarily true. The jury heard the recording of
a police interview with Defendant where he acknowledged that
Victim initially said no to their encounter. And, as previously
mentioned, “ignoring a victim’s ‘no,’ standing alone, may be
sufficient for a conviction for rape, even without the use or
threat of force.” See State v. Hammond, 2001 UT 92, ¶ 17, 34 P.3d
773. Second, even if the jury relied solely on Victim’s testimony
in finding that she did not consent to digital penetration, it was
entitled to do so; Defendant has not shown that any
inconsistencies rendered Victim’s testimony such that
“reasonable minds must have entertained a reasonable doubt
that [Defendant] committed the crime for which he . . . was
convicted.” See State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719(cleaned up).
¶26 Most of Defendant’s argument regarding internal
inconsistencies is unrelated to Victim’s testimony and is instead
nothing more than a contention that the jury’s verdicts were
inconsistent. See infra Part III. But he also argues, with little
analysis, “In this case, the evidence was inconsistent to prove
object rape.” 7 And he insists “there is insufficient evidence in
light of witness testimony that is internally inconsistent.” Yet
Defendant never spells out what these supposed inconsistencies
are. Instead, he establishes the general rule that internal
7. In making this assertion, Defendant directs our attention to the
instruction in Robbins that a “court may choose to exercise its
discretion to disregard inconsistent witness testimony only when
the court is convinced that the credibility of the witness is so
weak that no reasonable jury could find the defendant guilty
beyond a reasonable doubt.” 2009 UT 23, ¶ 18. But this statement
from Robbins addressed a trial court’s role in “considering a
motion to arrest judgment.” Id. And while Defendant made a
motion to arrest judgment below, he has not asked us to review
the trial court’s ruling on that motion. Thus, this portion of
Robbins is inapplicable.
20151018-CA 12 2018 UT App 8State v. Cady
inconsistencies might render testimony unreliable and then
simply concludes, based on perceived inconsistencies in the
jury’s verdicts, that the rule should apply in this case.
¶27 Because Defendant has not established what aspects of
Victim’s testimony were internally inconsistent, we reject his
challenge on this basis. 8
II. Recklessness
¶28 Defendant also contends that because there was
insufficient, inherently improbable, and internally inconsistent
evidence of Victim’s nonconsent, the State failed to establish that
he was “aware of but consciously disregard[ed] a substantial
and unjustifiable risk that” Victim did not consent to the digital
penetration. See Utah Code Ann. § 76-2-103(3) (LexisNexis 2012).
Even if Defendant’s argument were not premised on a
conclusion we have already rejected, we would not be
convinced.
¶29 In an interview with police—which the jury heard—
Defendant acknowledged that Victim “stopped him at first[,]
saying ‘unh-unh.’” He said that her body language was “back
and forth.” He agreed that when a woman’s body language is
indecisive, “logic would be to take that as no.” He told the police
that he had “fucked up” and “felt like the biggest piece of shit in
the world.” And he admitted unconditionally that his fingers
had penetrated Victim’s vagina. These statements, without
8. Commingled with his arguments regarding inherent
improbability and internal inconsistency is Defendant’s
pronouncement that “the evidence clearly established two adults
could have heard [Victim] if she had wanted to stop
[Defendant].” This statement is disconnected from any claim
regarding inconsistency or improbability, and we in any event
reject outright the suggestion that a victim is responsible for
stopping her own sexual assault.
20151018-CA 13 2018 UT App 8State v. Cady
reference to any other evidence, demonstrate that Defendant was
aware of a substantial and unjustifiable risk that Victim did not
consent to digital penetration, but then he consciously
disregarded that risk by nevertheless digitally penetrating her.
See id.
¶30 Defendant nevertheless offers explanations for his
conduct. He told police that, being “a very persuasive person”
and having “a gift with people,” he overcame Victim’s initial
hesitance; in his defense at trial, he claimed she “never directly
said no.” He argues that he encouraged Victim to “tell him to go
away” if she had a problem with his advances. He claims that his
statements regarding messing up and feeling guilty related to
cheating on his wife, not assaulting Victim. He also professes
that he “thought it was consensual.”
¶31 Again, the jury has the freedom to believe or not to
believe evidence presented to it. See, e.g., State v. Garcia-Mejia,
2017 UT App 129, ¶ 24, 402 P.3d 82. “That it chose not to believe”
Defendant’s assertion that he thought his encounter with Victim
was consensual “does not mean that Defendant’s conviction is
unsupported by the evidence.” See id. This is especially true on
the question of mens rea where the jury heard from Defendant
directly that he heard Victim say “unh-unh” and considered her
body language to be “back and forth.” And Victim testified that
when Defendant asked her if his conduct was okay, she shook
her head no. There was sufficient evidence from which the jury
could have found that Defendant was reckless regarding
Victim’s nonconsent, and thus we will not disturb that finding.
III. Inconsistent Jury Verdicts
¶32 Finally, Defendant argues that because “the jury’s
verdicts are inconsistent,” we are “require[d] . . . to reverse his
object rape conviction.” “When considering a defendant’s
argument that the verdicts are inconsistent,” we will not reverse
unless “reasonable minds could not rationally have arrived at
20151018-CA 14 2018 UT App 8State v. Cady
the verdict of guilty beyond a reasonable doubt.” State v.
LoPrinzi, 2014 UT App 256, ¶ 30, 338 P.3d 253. And
so long as sufficient evidence supports each of the
guilty verdicts, state courts generally have upheld
the convictions. In other words, a claim of
inconsistency alone is not sufficient to overturn the
conviction; rather, there must be additional error
beyond a showing of inconsistency because
appellate courts have always resisted inquiring
into the jury’s thought processes and deliberations.
Id. (cleaned up). We have already concluded that sufficient
evidence supports Defendant’s conviction for object rape. Thus,
Defendant must demonstrate some error beyond that of
inconsistent verdicts. See id. He has not done so. Indeed, he has
failed to demonstrate that the verdicts were even inconsistent.
However, in part because Defendant devotes a significant
amount of space in his brief arguing that the verdicts are
inconsistent, we take the time to address those arguments.
¶33 In Defendant’s view, we should reverse his conviction for
object rape because the jury acquitted him of rape for both the
January incident and the April incident; he argues that “all three
counts rested on the jury’s determination of [Victim’s]
credibility.” He asserts that because nonconsent was an element
of each offense, “if jurors believed her, they would convict on all
counts; if they did not believe her, they would acquit on all
counts.” Implicit in this argument is a conflation of the three
incidents. This is apparent in Defendant’s repeated use of the
term “same incident” when discussing the object rape and the
April incident. Also implicit in this argument is the suggestion
that credibility determinations must be all or nothing. We reject
both of these premises.
¶34 Defendant was charged with three crimes for three
separate encounters. The State was not tasked with proving
20151018-CA 15 2018 UT App 8State v. Cady
nonconsent for all encounters but for each encounter. Stated
another way, the State’s evidence had to separately establish
nonconsent for the January incident, nonconsent for the object
rape, and nonconsent for the April incident. The jury may have
decided that the State did not meet its burden of proving
nonconsent for the January incident or for the April incident but
that it met its burden of proving nonconsent as to the object
rape. There is nothing inconsistent about these verdicts, because
the State introduced different evidence to attempt to establish
nonconsent for each of the three incidents.
¶35 Regarding the January incident, Victim testified that she
had closed her eyes and remained quiet. This is different from
the evidence of Victim’s “unh-unh” before the object rape. Also
during the January incident, Victim said she started crying
during penetration and reached behind her to push Defendant
away, “but it didn’t work.” This is different from the testimony
that Victim, prior to the object rape, cried, attempted to hold her
pants up, shook her head no, and actually pushed against
Defendant. We do not mean to suggest that there is a checklist of
evidence that does or does not prove nonconsent, but by
contrasting the evidence of nonconsent for these two encounters,
it becomes apparent that the jury could have made separate
determinations on these two charges.
¶36 Likewise, evidence of nonconsent for the April incident
varied from evidence of nonconsent for the object rape. No
verbal expression preceded the April incident. And while Victim
testified that during both incidents she cried, tried to pull her
pants back up, and remained in fetal position, the jury could
have concluded that Victim’s “unh-unh” or her pushing
Defendant away during the object rape—or both—convinced
them of her nonconsent beyond a reasonable doubt. Similarly,
the lack of those behaviors during the April incident might have
left a reasonable doubt in jurors’ minds on the issue of
nonconsent.
20151018-CA 16 2018 UT App 8State v. Cady
¶37 On the other hand, it is possible that neither the quantum
nor quality of nonconsent evidence alone determined the jury’s
verdicts. Instead, it could have believed Victim’s claim of
nonconsent to the object rape while disregarding her claim of
nonconsent to both the January and the April incidents.
Defendant suggests that this would require “an improbable and
unreasonable conclusion that [Victim] consented to sexual
intercourse but not to digital penetration.” At first blush, such a
conclusion might seem improbable or unreasonable. But upon
further inspection, it becomes apparent that the jury’s conclusion
was neither.
¶38 A jury’s finding that the State did not meet its burden of
proof of nonconsent is not a finding of the inverse—that there
was consent—just as a verdict of “not guilty” is not a verdict of
innocence. A jury is not tasked with deciding all issues
absolutely. Instead, we ask only that it decide whether the State
proved all elements of a crime beyond a reasonable doubt. When
its answer is no, the jury enters a verdict of not guilty. When its
answer is yes, it finds a defendant guilty. In the instant case, the
jury answered “no” on the rape charges and “yes” to the object
rape charge. It therefore may have decided only that the State
had not proven nonconsent for the rape charges beyond a
reasonable doubt, nothing more. It did not find, as Defendant
suggests, that Victim “consented to sexual intercourse but not to
digital penetration.”
¶39 But even if it did, we cannot say that such a conclusion
was not supported by sufficient evidence. The object rape and
the April incident were separate events. Between the two,
approximately five minutes passed, and Defendant got up, left
the room, and then returned. It is not improbable or
unreasonable, in this case, that an individual would refuse her
consent to one activity and then, later, provide her consent to a
different activity.
¶40 Given the myriad ways the jury might have reasonably
reached its separate verdicts, we see no inconsistencies in them.
20151018-CA 17 2018 UT App 8State v. Cady
Cf. Neff v. Neff, 2011 UT 6, ¶ 49, 247 P.3d 380 (“[W]ith regard to a
claim that a jury verdict is internally inconsistent, we resolve any
inconsistency in favor of giving effect to a jury verdict.”).
CONCLUSION
¶41 The evidence presented at trial was sufficient to support
Defendant’s conviction for object rape. Neither inherent
improbabilities nor internal inconsistencies in the testimony
provided at trial undermine that conclusion. Furthermore, the
jury’s acquittal of Defendant on the rape charges does not render
the conviction for object rape inconsistent. We thus affirm. 9
9. In his brief before this court, Defendant requested that we
correct a clerical error in the record under rule 30(b) of the Utah
Rules of Criminal Procedure. Because the trial court is better
suited to make that correction, and because it is able to do so at
any time under the rule, see Utah R. Crim. P. 30(b), we encourage
Defendant to make the appropriate motion to the trial court.
20151018-CA 18 2018 UT App 8