State v. Ray

2022 UT App 95THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ERIC MATTHEW RAY,
Appellant.
Amended Opinion*
No. 20121040-CA
Filed July 29, 2022
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 101401511
Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 On remand from our Supreme Court, Eric Matthew Ray
again challenges his conviction of forcible sexual abuse, arguing
that Utah Code section 76-5-406(2)(k) is unconstitutionally vague
on its face and that the trial court erred in denying him access to
a portion of his victim’s medical records. We affirm.
* This amended opinion replaces the opinion issued March 31,
2022, State v. Ray, 2022 UT App 39, 509 P.3d 791. Footnotes 8 and
19 have been amended to discuss the law in effect at the relevant
time.
State v. Ray
BACKGROUND1
¶2 In late 2008, Ray, then a married twenty-seven-year-old
law student in Illinois, sent a text message to a wrong number.
R.M., then a fourteen-year-old girl living in Utah, was the
recipient of the misdirected text. R.M. informed Ray of his mistake
and of her age, but the two began communicating daily through
text, social media, and telephone conversations. They initially
discussed topics such as politics, religion, school, and Ray’s
marital problems, but their conversations eventually took a
romantic turn. R.M. testified that their “conversations got a little
bit more intimate,” and they began discussing sex, love, and
marriage. These discussions included talk of marriage in a temple
of their shared religion and of R.M. attending art school in Illinois.
¶3 In March 2010, Ray flew to Utah during his spring break to
visit R.M., who by that time was fifteen years old. Over the course
of Ray’s four-day visit, with the exception of the third day, during
which R.M. was grounded, Ray and R.M. would go to Ray’s hotel
room and engage in progressively serious sexual activity.
¶4 On the first day of his visit, Ray picked R.M. up from school
in his rental car and took her to his hotel. There, Ray gave R.M.
her “first kiss and then there was a lot of kissing and making out
going on” for the next several hours. R.M. testified at trial that
while lying in bed together, Ray touched her “bra and underwear
areas” over her clothing. R.M. acknowledged that this
contradicted her testimony at an earlier preliminary hearing,
during which she stated that they had just kissed and that nothing
1. “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. Ray, 2020 UT 12, n.2, 469 P.3d 871 (quotation simplified).
20121040-CA 2 2022 UT App 95State v. Ray
else had happened on that first day. When they had finished, Ray
dropped R.M. off at a corner near her house.
¶5 On the second day, R.M.’s two friends accompanied R.M.
to the hotel. While the friends went swimming at the hotel’s pool,
Ray and R.M. disrobed to their underwear and began “kissing on
the bed” for about an hour. R.M. testified at trial that Ray again
touched her “bra and [her] underwear areas” and that he also
touched her buttocks and “momentarily” reached under her bra.
This trial testimony also contradicted her testimony at the
preliminary hearing that Ray never touched under her bra or her
buttocks. R.M. testified at trial that she also touched Ray’s
“private parts” over his underwear, and when her friends
returned to the room, the four played a game of “Sexy Truth or
Dare,” during which Ray showed them a picture he had taken of
two sex toys.
¶6 On the third day, because R.M. was grounded due to poor
grades, Ray met her in her high school parking lot, and they
worked on her homework for about an hour in the rental car. R.M.
testified at trial that “nothing happened” that day other than
homework.
¶7 On the fourth day—their last day together—Ray decorated
the hotel room with flowers and candles. R.M. took a shower and,
per Ray’s earlier request via text, shaved her pubic area. R.M.
testified at trial that she exited the bathroom naked to find Ray
also naked. They began kissing and eventually moved to the bed,
where Ray touched the “outside” of R.M.’s vagina with his fingers
for “[a] few minutes.”2 Afterward, they watched a movie from the
Twilight franchise while in bed and later went out to eat. This
contradicted R.M.’s testimony at the preliminary hearing that
after she showered and shaved, she “[g]ot dressed and went back
2. R.M. testified at the preliminary hearing that Ray digitally
penetrated her vagina.
20121040-CA 3 2022 UT App 95State v. Ray
into his room,” where they watched the movie together and then
began engaging in sexual activity.
¶8 They left the hotel room to get something to eat, and when
they returned to the hotel room, the two discussed the possibility
of sexual intercourse. R.M. told Ray that she “wasn’t ready for
that,” and he said “he was okay to wait.”3 While still at the hotel,
Ray gave R.M. a candle, a tee shirt he had worn, and a vibrator to
remember him by. In return, R.M. gave Ray a tee shirt she had
worn.
¶9 When Ray returned to Illinois, the two continued to
communicate via text message for just under a week until R.M.
was hospitalized with meningitis. During her ten-day hospital
stay, R.M. spent some time in the ICU and was given numerous
medications. R.M. stated that she was “on and off conscious”
during her stay, while her mother (Mother) testified that R.M.
“was awake and asleep, awake and asleep,” but that she was
never “unconscious.”
¶10 R.M. notified Ray of her condition when she was admitted
to the hospital, but she was unable to communicate with him
thereafter. After unsuccessfully trying to get ahold of R.M., Ray
called Mother posing as Edward Matthews, a fictional classmate
of R.M.’s, and asked about her condition. Thereafter, Ray
continued to contact R.M.’s parents and the hospital at least once
a day inquiring after her condition and offering his own theories
as to the type of infection R.M. had. At one point, he informed
R.M.’s parents via email that R.M. had a vaginal infection, which
Mother considered “a red flag.” Concerned, Mother looked
through R.M.’s social media page and found a picture containing
3. R.M. also testified at trial that, prior to this conversation, Ray
had performed oral sex on her and that she reciprocated, but the
jury did not return a unanimous verdict on two counts of forcible
sodomy that correlated with this testimony.
20121040-CA 4 2022 UT App 95State v. Ray
two tags: Ray and Edward Matthews. Mother also discovered
many pictures of Ray on R.M.’s cellphone. When Ray later called
R.M.’s phone, her parents told him “to leave her alone.”
¶11 R.M.’s parents contacted a neighbor in law enforcement,
who in turn asked a detective (Detective) to look into the matter.
On March 24, 2010, Detective interviewed R.M. at the hospital,
whom he described at trial as being “in a sedated state” and “slow
to respond.” Detective also stated that R.M.’s responses quickly
became “slurred,” “groggy,” and “incoherent.” In his report,
Detective wrote, “I was informed that [R.M.] had been given a
dose of pain medication that made it difficult for her to speak
clearly, but that she could understand what I was asking of her,
and that she could answer the questions I would ask.”
¶12 Although the interview lasted only about ten minutes due
to R.M.’s condition, R.M. managed to confirm to Detective that
Ray and Edward Matthews were the same person and to explain
how they first began exchanging text messages. She told Detective
that they began expressing romantic feelings toward each other
and that Ray visited her in Utah earlier that month. She said that
on the first day of Ray’s visit, she met Ray in her high school
parking lot and that “they remained there for several hours” in
Ray’s car. She said that they “kissed on the lips multiple times,
and talked about various topics.” This was at odds with R.M.’s
later trial testimony that they went back to Ray’s hotel room and
that, in addition to kissing, Ray touched her “bra and [her]
underwear areas” over her clothing.
¶13 R.M. then told Detective that she did not see Ray again
until the third day. This account differed from R.M.’s later trial
testimony that she and two friends went back to Ray’s hotel on
the second day, and that while the friends were at the pool, Ray
again touched her “bra and underwear areas” and “momentarily”
reached under her bra. R.M. told Detective that on the third day,
they again spent time in Ray’s rental car in the high school
20121040-CA 5 2022 UT App 95State v. Ray
parking lot “talking and kissing” for “three to four hours.” But
this time, she said that Ray also put his hands down her pants and
attempted to “finger” her. Ray removed his hand after she told
him to because she had a yeast infection and the rubbing was
causing her pain.4 R.M. also told Detective that she had sent Ray
approximately 100 nude images of herself.5
¶14 At the time, R.M. did not disclose to Detective any of the
additional details regarding her interactions with Ray that were
later presented at trial. When Ray’s counsel asked why not, R.M.
responded that she “was in the hospital” and “was very sick.”
¶15 Even after being discharged from the hospital, R.M. was
still “extremely ill,” “found it very difficult to sit” or to
“communicate for long periods of time,” and became nauseated
“every time she moved.” Based on these extenuating
circumstances, and based on R.M.’s adverse reaction to Detective
whenever he brought up the investigation, Detective arranged for
R.M.’s adult sister (Sister) to interview her at home. During that
interview, R.M. disclosed additional details that she had not
4. R.M.’s trial testimony that “nothing happened” in the car on
that day other than homework contradicted these statements. At
trial, Ray’s counsel elicited testimony from R.M. that she initially
told Detective that Ray had attempted to “finger” her in the car
that day.
5. At trial, R.M. denied sending nude photographs of herself to
Ray, and Ray’s counsel elicited testimony from R.M. that an
examination of her phone did not reveal any nude photographs.
20121040-CA 6 2022 UT App 95State v. Ray
disclosed in her interview at the hospital, which Sister recorded
in written form.6
¶16 Approximately one month after the hospital interview,
Detective, posing as R.M., began communicating with Ray over
social media with the aim of getting “more information as to
whether there had been any criminal activity.” At one point,
Detective asked whether Ray had told his wife about “going
down my pants.” Ray responded: “no I have not violated any laws
so ther ewould be noting to tell.”7 At another point, Detective
asked “what if I was pregnant or soemthing?” to which Ray
replied, “we didnt have sex and im sure if you were pregnant, i
would have found out.” Detective responded, “yeah but you
touched me there what if sperm was on your hand,” which Ray
did not deny, but instead replied, “your parents would have
found a way to get me arrested.” Later on in the conversation, Ray
stated: “we wanted to [have sex] when we were kissing,” “but you
wanted to . . . stay a virgin and i didnt want to hurt you in any
way and we didnt have sex.” Ray later described giving R.M. her
first kiss and how they then “got into bed and kissed for the rest
of the day.”
¶17 Eventually, Ray and “R.M.” arranged for Ray to make a
second visit to Utah. When Ray arrived, he was arrested.
6. The trial testimony is vague as to what R.M. disclosed to Sister.
But Sister’s written record of the interview reveals that R.M. told
Sister that she visited Ray’s hotel room multiple times, Ray played
“Sexy Truth or Dare” with her and her two friends, he gave her a
sex toy, they touched each other’s genitals over their underwear,
he touched her breast over her bra, they performed oral sex on
each other, and he tried to “finger” her.
7. Throughout this opinion, we quote the various text messages
verbatim, including typos, adding bracketed material only when
necessary for clarity.
20121040-CA 7 2022 UT App 95State v. Ray
Detective subsequently interviewed Ray, during which Ray
confirmed that his relationship with R.M. began as a result of him
sending a text message to a wrong number. Ray further related
how they began discussing religion, politics, and personal matters
and how they eventually began developing feelings for each
other. He also confirmed that he used the pseudonym Edward
Matthews.
¶18 The State charged Ray with one count each of forcible
sexual abuse and object rape, and two counts of forcible sodomy.
To prove lack of consent, the State relied on Utah Code section
76-5-406(2)(k) (the enticement provision), which provides that
forcible sexual abuse and other sexual offenses are without
consent if “the victim is 14 years of age or older, but younger than
18 years of age, and the actor is more than three years older than
the victim and entices or coerces the victim to submit or
participate, under circumstances not amounting to . . . force or
threat.” See Utah Code. Ann. § 76-5-406(2)(k) (LexisNexis Supp.
2021).8
¶19 At a preliminary hearing, R.M. testified that she did not
feel well when Detective interviewed her at the hospital and that
her memory at the time was affected “just a little bit.” She also
stated that she “remembered better” when she spoke with Sister
a few weeks later. And Detective testified that the interview did
not last long because R.M. was “[i]ntoxicated” and “not very
articulate”—that it was as if “her tongue wasn’t working” and
that “[i]t gradually got worse and worse.”
¶20 Following the preliminary hearing, Ray served a
supplemental discovery request on the State for R.M.’s medical
8. Because the applicable provisions of the Utah Code in effect at
the relevant time do not materially differ from those currently in
effect, except where otherwise noted, we cite the current version
of the code for convenience.
20121040-CA 8 2022 UT App 95State v. Ray
records, “including a list of medications and dosage of those
medications she was taking during her stay in the hospital as well
as after her release.” Ray stated that the information was “critical
to the defense . . . because [R.M.] gave statements to the police as
well as to other people (i.e. her sister) while under the influence
of potentially mind and memory-altering drugs.”
¶21 Approximately one month later, Mother submitted a
medical record disclosure form authorizing the hospital to release
R.M.’s “medications & doses” and “diagnosis” to Detective for the
purpose of the “criminal investigation where [R.M.] was the
victim.” She did not check boxes on the form allowing for the
release of, among other things, “Discharge Summary,”
“Consultation(s),” and “Progress notes.” Mother also
acknowledged on the form that she understood that the hospital
“cannot guarantee that the Recipient will not redisclose [R.M.’s]
health information to a third party.”
¶22 The State received 22 pages of R.M.’s medical records. The
State disclosed 11 of those pages, consisting of a “Medications
Given Report,” to Ray. The hospital apparently released the
remaining pages in error. The State filed a motion under rules
14(b) and 16 of the Utah Rules of Criminal Procedure, requesting
that the trial court conduct an in camera review9 of the remaining
pages for relevance and that it “determine what records, if any,
the State must disclose to the defense.” Ray did not object to this
requested procedure.
¶23 At a hearing following the court’s review of the records,
the court stated that it had determined that “there wasn’t
anything in connection with the medical report that would be
9. “With origins in Latin, where ‘camera’ means ‘chamber,’ in
camera review or inspection refers to a trial judge’s private
consideration of evidence.” State v. Betony, 2021 UT App 15, ¶ 17
n.4, 482 P.3d 852 (quotation simplified).
20121040-CA 9 2022 UT App 95State v. Ray
relevant relative to the . . . case.” When asked whether it had
looked for “things that affected [R.M.’s] memory,” the court
replied that it “was looking for all of that.” The court later issued
a written order stating, “After careful review of the submitted
medical records, the court finds no relevancy of these records to
this case” and that “in providing defense counsel with copies of
the ‘Medications Given Report,’” the State “has complied strictly
and thoroughly with the defendant’s discovery request.”
¶24 Prior to trial, Ray filed two motions to dismiss. One motion
argued that the enticement provision was unconstitutionally
vague because the term “entice” was not sufficiently defined to
give Ray notice that his conduct constituted enticement. The other
motion argued that “the State failed to present sufficient evidence
at the preliminary hearing . . . to establish probable cause.”
Specifically, he contended that “[t]he State’s evidence presented
at the preliminary hearing failed to establish probable cause [that
he] enticed or coerced R.M. to engage in any sexual conduct
without her consent.”
¶25 The trial court denied both motions. It concluded that the
enticement provision was not unconstitutionally vague
“[b]ecause the words used to describe a proscribed conduct are
both commonly used and clearly defined” by caselaw.
¶26 Turning next to Ray’s sufficiency-of-the-evidence
argument, the court found evidence that Ray “use[d] religious
principles to foster a sexual relationship” with R.M. by promising
her that “he would ‘take her to the temple, marry her.’” The court
continued that “[i]n the mind of an impressionable young girl, it’s
probable that this promise would create a veneer of
wholesomeness and goodness on a relationship which is
manifestly abhorrent.” And “[b]y manipulating [R.M.’s] religious
beliefs, [Ray] likely was able to get [her] to act sexually in ways
she might not otherwise act.” The court also found evidence that
Ray “spent 18 months plus cultivating the relationship” and
20121040-CA 10 2022 UT App 95State v. Ray
“groomed [R.M.] by saturating himself into her life” with
“texting, instant messaging, [and] speaking by video.” There was
also evidence that Ray “used teen pop culture to manipulate”
R.M. by donning the pseudonym Edward Matthews “as a
reference to the popular Twilight series, [implicating] the series’s
theme of forbidden love and desire and danger, etc.” Based on
this, the court concluded that the State presented sufficient
evidence to establish probable cause that Ray enticed R.M.
¶27 The case then proceeded to trial, following which the jury
convicted Ray on the forcible sexual abuse charge but acquitted
him on the object rape charge and could not reach a unanimous
verdict on either forcible sodomy charge. Ray appealed his
conviction to this court, raising several issues. While the appeal
was then pending, this court granted Ray’s motion for a rule 23B
remand, during which an expert witness for the defense reviewed
all 22 pages of R.M.’s medical records. See generally Utah R. App.
P. 23B.
¶28 In our prior opinion in this case, State v. Ray (Ray I), 2017
UT App 78, 397 P.3d 817, rev’d, 2020 UT 12, 469 P.3d 871, we held
that Ray’s trial counsel provided constitutionally ineffective
assistance for failing to request a jury instruction defining the
term “indecent liberties” under Utah Code section 76-5-404(1). See
2017 UT App 78, ¶¶ 17–23. We vacated Ray’s conviction and
remanded for a new trial on that basis. See id. ¶ 28. With the
exception of Ray’s argument that we should simply reverse his
conviction because R.M.’s testimony was inherently improbable,
which argument we rejected, see id. ¶ 27, we did not have occasion
to address the remaining arguments Ray raised on appeal in view
of our decision to vacate his conviction and remand for a new
trial.
¶29 Our Supreme Court granted certiorari and issued State v.
Ray (Ray II), 2020 UT 12, 469 P.3d 871, in which it concluded that
Ray’s trial counsel had not performed deficiently in not
20121040-CA 11 2022 UT App 95State v. Ray
requesting an instruction on “indecent liberties.” See id. ¶¶ 25, 45.
In so doing, the Court clarified, among other things, that the
standard for the deficient performance prong of the ineffective
assistance of counsel inquiry “is not whether counsel’s course of
conduct was strategic, but whether it fell below an objective
standard of reasonableness.” Id. ¶ 33. The Court then reversed our
decision in Ray I, reinstated Ray’s conviction, and remanded for
us “to address Ray’s remaining claims.” Id. ¶ 46.
¶30 Following remand to this court, Ray filed a stipulated
motion to allow replacement briefs on the ground that “[n]early
five years ha[ve] passed since Ray’s opening brief was filed, that
includes five years of new cases potentially relevant to, persuasive
toward, or even binding upon the remaining briefed issues.” We
granted this motion and later, upon Ray’s request, clarified that
based on our Supreme Court’s mandate “to address Ray’s
remaining claims,” id., the replacement briefs were to be limited
to “the claims that were initially raised by Ray on appeal but that
were not addressed by this court in its prior opinion.”
ISSUES AND STANDARDS OF REVIEW
¶31 Ray first argues that the trial court incorrectly ruled that
the enticement provision was not unconstitutionally vague.10
10. Ray raises two additional constitutional challenges to the
enticement provision. First, he argues that the enticement
provision is unconstitutional as applied to him because it
criminalized his fundamental rights under the Due Process
Clause and violated the First Amendment. In his view, “R.M.
could legally consent to sexual conduct” and could marry “if
voluntarily and with premarital counseling.” In that context, he
asserts that “[i]ntimate relationships involved in creating a family
are a fundamental element of personal liberty” and that “adults
(continued…)
20121040-CA 12 2022 UT App 95State v. Ray
“Whether a statute is unconstitutionally . . . vague is a question of
law reviewed for correctness.” State v. Jones, 2020 UT App 31, ¶ 27,
462 P.3d 372 (quotation simplified). The party challenging a
statute “as unconstitutional bear[s] the burden of demonstrating
its unconstitutionality.” State v. Jones, 2018 UT App 110, ¶ 9, 427
P.3d 538 (quotation simplified). Furthermore, “[a] statute is
presumed constitutional, and we resolve any reasonable doubts
in favor of constitutionality.” State v. Mattinson, 2007 UT 7, ¶ 6,
152 P.3d 300.
¶32 Next, Ray argues that the trial court erred in denying him
access to the remaining eleven pages of R.M.’s medical records.
“We review a trial court’s denial of a discovery motion for abuse
of discretion.”11 State v. Santonio, 2011 UT App 385, ¶ 12, 265 P.3d
822. Additionally, “we will reverse only if a reasonable likelihood
exists that absent the error, the result would have been more
favorable to the defendant.” State v. Leech, 2020 UT App 116, ¶ 31,
473 P.3d 218 (quotation simplified). See Utah R. Crim. P. 30(a).
have First Amendment rights to sexual expression,” both of which
the enticement provision unconstitutionally criminalized in his
case. Second, Ray argues that the enticement provision is
unconstitutionally overbroad. On remand, we are limited by our
Supreme Court’s mandate “to address Ray’s remaining claims.”
Ray II, 2020 UT 12, ¶ 46, 469 P.3d 871. Because Ray did not raise
these issues in his original brief, we have no occasion to address
them here.
11. The State asserts that this issue is not preserved. Because we
resolve the merits of the claim in the State’s favor, we need not
address this preservation argument. See State v. Kitches, 2021 UT
App 24, ¶ 28, 484 P.3d 415 (“If the merits of a claim can easily be
resolved in favor of the party asserting that the claim was not
preserved, we readily may opt to do so without addressing
preservation.”) (quotation simplified).
20121040-CA 13 2022 UT App 95State v. Ray
ANALYSIS
I. Vagueness Challenge
¶33 The enticement provision states that various sexual
offenses, including forcible sexual abuse, are without consent if
“the victim is 14 years of age or older, but younger than 18 years
of age, and the actor is more than three years older than the victim
and entices or coerces the victim to submit or participate, under
circumstances not amounting to . . . force or threat.” Utah Code
Ann. § 76-5-406(2)(k) (LexisNexis Supp. 2021) (emphasis added).
The purpose of the enticement provision, “in combination with
the statutory section defining the crime, is to prevent mature
adults from preying on younger and inexperienced persons.”
State v. Gibson, 908 P.2d 352, 356 (Utah Ct. App. 1995) (quotation
simplified). It “protect[s] young persons from sexual exploitation
by older, more experienced persons until they reach the legal age
of consent and can more maturely comprehend and appreciate
the consequences of their sexual acts.” State v. Scieszka, 897 P.2d
1224, 1227 (Utah Ct. App. 1995) (quotation simplified). Ray argues
that the enticement provision is unconstitutionally vague on its
face.12
12. Ray also, at least nominally, raises an as-applied vagueness
challenge to the enticement provision, which requires him to
establish “that the statute was applied to him . . . in an
unconstitutional manner.” State v. Herrera, 1999 UT 64, ¶ 4 n.2, 993
P.2d 854. Although Ray raised an as-applied argument in his
original brief to this court, he argues in his replacement brief,
under the as-applied heading, that the enticement provision is
overbroad and subject to strict scrutiny because it infringes on his
First Amendment rights to freedom of speech and association and
on his fundamental rights to marriage and procreation. As
previously discussed, see supra note 10, because Ray did not raise
(continued…)
20121040-CA 14 2022 UT App 95State v. Ray
¶34 “A statute may be unconstitutional either on its face or as
applied to the facts of a given case.” State v. Herrera, 1999 UT 64,
¶ 4 n.2, 993 P.2d 854. A facial challenge is the most difficult of the
two “because it requires the challenger to establish that no set of
circumstances exists under which the statute would be valid.” 13
Id. (quotation simplified). See United States v. Salerno, 481 U.S. 739,
745 (1987). Furthermore, facial vagueness challenges to a statute
are appropriate only if First Amendment rights or other
constitutionally protected conduct are implicated.14 See State v.
these other constitutional issues in his original brief, we have no
occasion to address them on remand.
13. Ray argues that because “[t]his is a First Amendment case,
some valid applications cannot save [the enticement provision] as
[his] speech was not clearly proscribed.” Although Ray correctly
states that an exception to this general rule arises in the First
Amendment context, it does so in the form of an overbreadth
challenge. See United States v. Salerno, 481 U.S. 739, 745 (1987);
Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010) (“[A] Fifth
Amendment vagueness challenge does not turn on whether a law
applies to a substantial amount of protected expression.”); United
States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010) (“There are two
main ways to succeed on a facial challenge in the First
Amendment context. A plaintiff may demonstrate either that no
set of circumstances exists under which the law would be valid,
i.e., that the law is unconstitutional in all of its applications, or that
the law is overbroad because a substantial number of its
applications are unconstitutional, judged in relation to the law’s
plainly legitimate sweep.”) (quotation simplified). The exception
therefore does not apply to Ray’s vagueness challenge.
14. Additionally, “when a party raises both facial and as-applied
vagueness challenges, ‘[a] court should . . . examine the
complainant’s conduct before analyzing other hypothetical
(continued…)
20121040-CA 15 2022 UT App 95State v. Ray
Green, 2004 UT 76, ¶ 44, 99 P.3d 820 (stating that “‘[vagueness]
challenges to statutes which do not involve First Amendment
freedoms must be examined in the light of the facts of the case at
hand’”) (quoting Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 n.7 (1982)). See also United States v.
Gaudreau, 860 F.2d 357, 360 (10th Cir. 1988) (stating that an
appellant may raise a facial vagueness challenge only (1) “when it
threatens to chill constitutionally protected conduct, especially
conduct protected by the First Amendment”; or (2) “in some
instances . . . on pre-enforcement review”) (footnote omitted).
¶35 Here, the State argued at trial that Ray enticed R.M. by
“play[ing] right into” the tendency of teenage girls to “fall[] in
love with fantasy” and “playing into [R.M.’s] young, . . .
15-year-old mind” through, among other things, the cultivation of
an 18-month relationship, the “constant barrage of IMs and
applications of the law.’” State v. Pence, 2018 UT App 198, ¶ 19,
437 P.3d 475 (quoting Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494–95 (1982)). This is because “a
defendant ‘who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied
to the conduct of others.’” State v. Jones, 2018 UT App 110, ¶ 16,
427 P.3d 538 (quoting Village of Hoffman, 455 U.S. at 495). And
because “a Fifth Amendment vagueness challenge does not turn
on whether a law applies to a substantial amount of protected
expression,” this “rule makes no exception for conduct in the form
of speech.” Holder, 561 U.S. at 20. Thus, “[u]nder this rule, a ‘court
should therefore examine the complainant’s conduct before
analyzing other hypothetical applications of the law.’” Lehi City v.
Rickabaugh, 2021 UT App 36, ¶ 40, 487 P.3d 453 (quoting Village of
Hoffman, 455 U.S. at 495).
Here, because we address only Ray’s facial challenge to the
enticement provision, we do so without first addressing Ray’s
conduct.
20121040-CA 16 2022 UT App 95State v. Ray
texting,” discussing politics and religion, “[t]alking about . . .
infatuation,” making long term plans, and discussing temple
marriage. Because this conduct implicates the First Amendment
right to free speech and of association, we may proceed to address
Ray’s facial vagueness challenge.15
¶36 “Vagueness questions are essentially procedural due
process issues, i.e., whether the statute adequately notices the
proscribed conduct.” State v. MacGuire, 2004 UT 4, ¶ 14, 84 P.3d
1171 (quotation simplified). See State v. Davie, 2011 UT App 380,
¶ 14, 264 P.3d 770 (“[T]he vagueness doctrine is rooted in the Due
Process Clauses of the Fifth and Fourteenth Amendments.”). “A
statute is impermissibly vague if it either (a) ‘fails to provide
people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits’ or (b) ‘authorizes or even
encourages arbitrary and discriminatory enforcement.’” State v.
Ansari, 2004 UT App 326, ¶ 42, 100 P.3d 231 (quoting Hill v.
Colorado, 530 U.S. 703, 732–33 (2000)). A statute is not
unconstitutionally vague so long as it “is sufficiently explicit to
inform the ordinary reader what conduct is prohibited.”
MacGuire, 2004 UT 4, ¶ 14 (quotation simplified). Cf. id. ¶ 32
(“[B]ecause the meaning of the term is readily ascertainable, its
inclusion does not encourage or facilitate arbitrary and
discriminatory enforcement.”).
15. Our Supreme Court has held that “soliciting, seducing, luring,
or enticing a known minor to actually engage in unlawful sexual
activity . . . is not afforded First Amendment protections.” State v.
Gallegos, 2009 UT 42, ¶ 19, 220 P.3d 136 (quotation simplified),
abrogated on other grounds by Miller v. Utah Dep’t of Transp., 2012
UT 54, 285 P.3d 1208. Nevertheless, the First Amendment is still
implicated here because we must determine whether the
enticement provision gave sufficient notice of what constitutes
prohibited conduct or speech.
20121040-CA 17 2022 UT App 95State v. Ray
¶37 “The determination whether a criminal statute provides
fair warning of its prohibitions must be made on the basis of the
statute itself and other pertinent law[.]” Bouie v. City of Columbia,
378 U.S. 347, 355 n.5 (1964). See United States v. Williams, 553 U.S.
285, 306 (2008) (stating that terms found to be void for vagueness
lack “statutory definitions, narrowing context, or settled legal
meanings”). Additionally, the constitutionality of a law may not
be called into doubt simply on the basis that it “call[s] for the
application of a qualitative standard.” Johnson v. United States, 576
U.S. 591, 603–04 (2015). But “the failure of persistent efforts to
establish a standard can provide evidence of vagueness.” Id. at 598
(quotation simplified). In the case before us, based on the plain
language of the enticement provision and relevant caselaw, we
hold that the enticement provision is not unconstitutionally vague
on its face.
¶38 Although our Legislature did not define the term “entice”
as used in the enticement provision, it is a word that is both
“commonly used and clearly defined.” State v. Gallegos, 2009 UT
42, ¶ 16, 220 P.3d 136 (discussing “entice” and other terms in the
context of Utah Code section 76-4-401), abrogated on other grounds
by Miller v. Utah Dep’t of Transp., 2012 UT 54, 285 P.3d 1208. See
United States v. Gagliardi, 506 F.3d 140, 147 (2d Cir. 2007) (stating,
in the context of 18 U.S.C. § 2422(b), that certain words, including
“entice,” “though not defined in the statute, are words of common
usage that have plain and ordinary meanings”); United States v.
Dhingra, 371 F.3d 557, 562 (9th Cir. 2004) (same). “In fact, ‘[t]he
likelihood that anyone would not understand’” such a common
term “‘seems quite remote.’” Gallegos, 2009 UT 42, ¶ 16 (alteration
in original) (quoting Hill, 530 U.S. at 732). And a defendant
“cannot simply inject doubt as to the meaning of words where no
doubt would be felt by the normal reader.” Id. (quotation
simplified).
¶39 Utah courts have previously relied on dictionary
definitions to define “entice” when addressing the enticement
20121040-CA 18 2022 UT App 95State v. Ray
provision. In State v. Gibson, 908 P.2d 352 (Utah Ct. App. 1995),
this court noted that “Black’s Law Dictionary defines ‘entice’ as
‘to wrongfully solicit, persuade, procure, allure, attract, draw by
blandishment, coax or seduce’” and “‘[t]o lure, induce, tempt,
incite, or persuade a person to do a thing.’” Id. at 356 (quoting
Entice, Black’s Law Dictionary 531 (6th ed. 1990)). See State v.
Scieszka, 897 P.2d 1224, 1226 (Utah Ct. App. 1995) (referencing
Black’s Law Dictionary and Webster’s New 20th Century
Dictionary definitions of “entice”). And in State v. Billingsley, 2013
UT 17, 311 P.3d 995, our Supreme Court similarly noted that
“Black’s Law Dictionary defines ‘entice’ as ‘[t]o lure or induce; esp.,
to wrongfully solicit (a person) to do something,’” id. ¶ 13
(quoting Entice, Black’s Law Dictionary 611 (9th ed. 2009)), and
that “Webster’s Third New International Dictionary defines it as ‘to
draw on by arousing hope or desire,’” id. (quoting Entice,
Webster’s Third New Int’l Dictionary 757 (1961)).
¶40 Based on the dictionary definitions, this court has held that
under the enticement provision, “the ‘enticement’ of a teenager by
an adult occurs when the adult uses psychological manipulation
to instill improper sexual desires which would not otherwise have
occurred.” Gibson, 908 P.2d at 356. See id. at 356 n.3 (noting that
“[o]ther courts have defined ‘entice’ similarly”). And later, our
Supreme Court clarified that the “inquiry under the statute
should focus on the defendant’s conduct, not the victim’s sexual
experience.” Billingsley, 2013 UT 17, ¶ 13. Utah courts have further
observed that the determination of whether a defendant’s conduct
amounts to enticement is based on “the totality of the facts and
circumstances.” Gibson, 908 P.2d at 356. Accord Scieszka, 897 P.2d
at 1227. And borrowing from caselaw on the “similar issue” of
“indecent liberties,” Utah courts have suggested that relevant
factors in such an inquiry may include
(1) the nature of the victim’s participation (whether
the defendant required the victim’s active
participation), (2) the duration of the defendant’s
20121040-CA 19 2022 UT App 95State v. Ray
acts, (3) the defendant’s willingness to terminate his
conduct at the victim’s request, (4) the relationship
between the victim and the defendant, and (5) the
age of the victim.
Scieszka, 897 P.2d at 1227 (quotation simplified). Accord Gibson, 908
P.2d at 356.
¶41 Additionally, in Gallegos, our Supreme Court rejected a
vagueness challenge to another statute’s use of “entice.” See 2009
UT 42, ¶¶ 21–22. The statute in question provided that “a person
is guilty of enticing a minor over the internet if he or she
‘knowingly uses a computer to solicit, seduce, lure, or entice . . . a
minor or a person the defendant believes to be a minor to engage
in sexual activity which is a violation of state law.’” Id. ¶ 16
(quoting Utah Code Ann. § 76-4-401 (LexisNexis 2008)) (emphasis
added). The Court held that the statute in question was not
unconstitutionally vague because “the words used to describe the
proscribed conduct”—including “entice”—“are both commonly
used and clearly defined,” and because “the likelihood that
anyone would not understand any of these common words seems
quite remote.” Id. (quotation simplified). We conclude that the
same applies to our Legislature’s use of “entice” in the enticement
provision context. Additionally, “because the meaning of the term
is readily ascertainable, its inclusion does not encourage or
facilitate arbitrary and discriminatory enforcement.” State v.
MacGuire, 2004 UT 4, ¶ 32, 84 P.3d 1171.
¶42 Ray contends that Gallegos is distinguishable because our
Supreme Court also noted that “any concern about lack of notice
is ameliorated by the fact that [Utah Code section 76-4-401]
contains a scienter requirement, i.e., that the person must
‘knowingly’ solicit a minor,” 2009 UT 42, ¶ 16 n.1 (quotation
simplified), and because the statute at issue in that case “prohibits
an individual from ‘solicit[ing], seduc[ing], lur[ing], or entic[ing]’
a known minor to actually engage in unlawful sexual activity,” id.20121040-CA 20 2022 UT App 95State v. Ray
¶ 19 (quoting Utah Code Ann. § 76-4-401(2)(b)(ii)) (emphasis in
original). Ray asserts that unlike Utah Code section 76-4-401, the
enticement provision (1) contains no such scienter requirement
and (2) does not “require[] enticement to engage in illegal sex.”
We disagree that these observations render Gallegos inapplicable.
¶43 First, the Utah Criminal Code provides that “when the
definition of the offense does not specify a culpable mental state
and the offense does not involve strict liability”—as is the case
with both Utah Code section 76-5-404’s definition of forcible
sexual abuse and with the enticement provision—“intent,
knowledge, or recklessness shall suffice to establish criminal
responsibility.” Utah Code Ann. § 76-2-102 (LexisNexis 2018). See
State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676 (requiring mens rea
for the non-consent element of a sex crime). Accordingly, by
virtue of Utah Code section 76-2-102, the enticement provision has
a scienter provision.
¶44 And in any event, although the United States Supreme
Court has stated that “a scienter requirement may mitigate a law’s
vagueness,” Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 499 (1982), it “has never suggested that the
absence of a mens rea requirement, by itself, renders a statute
unconstitutional,” Hotel & Motel Ass’n of Oakland v. City of Oakland,
344 F.3d 959, 973 (9th Cir. 2003). See Hill v. Colorado, 530 U.S. 703,
732 (2000); Karlin v. Foust, 188 F.3d 446, 463 (7th Cir. 1999). And in
Gallegos, our Supreme Court did not hold that the statute in that
case would be unconstitutionally vague but for its scienter
requirement. See 2009 UT 42, ¶¶ 16–22. Instead, in addressing the
first prong of the vagueness test—that the statute “fails to provide
people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits,” id. ¶ 15 (quotation
simplified)—the Court focused its analysis on the plain meaning
of the words of the statute and rejected the appellant’s argument
on that basis, see id. ¶¶ 16–17. The Court merely added in a
footnote that “moreover, any concern about lack of notice is
20121040-CA 21 2022 UT App 95State v. Ray
ameliorated by the fact that the [statute] contains a scienter
requirement.” Id. ¶ 16 n.1 (quotation simplified).
¶45 Second, turning to Ray’s assertions that Gallegos is
distinguishable from the present case on the ground that the
enticement provision does not require “enticement to engage in
illegal sex,” Ray does not elaborate on this argument other than to
reiterate that “underlying crimes are absent” in the enticement
provision. This argument misses the point. Utah Code section
76-5-406 lists several unlawful sexual offenses that are committed
when there is lack of consent—including the offense of forcible
sexual abuse of which Ray was convicted. See Utah Code Ann.
§ 76-5-406(2) (LexisNexis Supp. 2021); id. § 76-5-404(1) (defining
forcible sexual abuse). The section then provides several
circumstances, including the one contained in the enticement
provision, under which the victim is not considered to have given
consent. See id. § 76-5-406(2). Thus, if a defendant engages in
sexual activity with a victim without the victim’s consent, it is
clear that the non-consensual sexual activity constitutes “illegal
sex,” the specific charge of which, depending on the facts of the
case, is listed in section 76-5-401(2) and defined in greater detail
elsewhere in the Utah Criminal Code. See generally id. §§ 76-5-401
to -416 (2017 & Supp. 2021).
¶46 Lastly, Ray asserts that the enticement provision is
unconstitutionally vague because each time it “is before the court,
a new test is invented,” thereby rendering enticement
“undefinable.” See Johnson v. United States, 576 U.S. 591, 598 (2015)
(“The failure of persistent efforts to establish a standard can
provide evidence of vagueness.”) (quotation simplified). He first
points to our Supreme Court’s holding in State v. Billingsley, 2013
UT 17, 311 P.3d 995, that an enticement inquiry should focus on
the defendant’s conduct and not the victim’s sexual experience,
see id. ¶¶ 14–15, and a seemingly contradictory footnote in the
concurring opinion stating that “sexual innocence, while certainly
relevant, is not essential to the question of enticement,” id. ¶ 27
20121040-CA 22 2022 UT App 95State v. Ray
n.2 (Lee, J., concurring in part). He also points to State v. Gibson,
908 P.2d 352 (Utah Ct. App. 1995), in which this court discussed
the dictionary definitions of “entice,” see id. at 356; cited the
definitions of “entice” employed by Wisconsin and South Dakota
courts in a similar context,16 see id. at 356 n.3; and discussed and
applied five factors relevant in the “totality of the facts and
circumstances” inquiry, see id. at 356–57. Ray asserts that these
references “all use ‘entice’ differently.” Lastly, Ray references the
concurring opinion in Gibson, which stated that in Scieszka “we
seemed to assume that ‘entice,’ as used in the statute, required a
pattern of ongoing, systematic, purposeful conduct with at least
an implicit offer of some kind of reward,” but “we have, in
essence, equated the word entice, as used in the statute, to include
any situation in which the adult participant takes the lead in
bringing about the sexual encounter complained of.” Id. at 357(Orme, J., concurring).
¶47 We disagree with Ray’s characterization of the relevant
caselaw. Although the enticement inquiry has certainly
developed over time, our caselaw falls short of “repeated
attempts and repeated failures to craft a principled and objective
standard,” which the United State Supreme Court indicated may
evidence a statute’s vagueness. Johnson, 576 U.S. at 598. In Johnson,
the Supreme Court invalidated the residual clause of the Armed
Career Criminal Act of 1984 as unconstitutionally vague. Id. at
606. As evidence of vagueness, the Court noted that each time it
addressed the residual clause, it “found it necessary to resort to a
different ad hoc test to guide [its] inquiry.” Id. at 598. The Court
also pointed to the “pervasive disagreement” among the lower
federal courts “about the nature of the inquiry one is supposed to
conduct and the kinds of factors one is supposed to consider”
16. This court in Gibson cited the definitions from other
jurisdictions in the context of noting that “[o]ther courts have
defined ‘entice’ similarly.” 908 P.2d at 356 n.3.
20121040-CA 23 2022 UT App 95State v. Ray
when determining “whether the residual clause covers this or that
crime.” Id. at 601.
¶48 Unlike with the provision at issue in Johnson, although
adjustments and clarifications have been made to Utah’s
enticement inquiry over time, the standard has never been
overturned and replaced. Indeed, the qualitative nature of the
inquiry prevents it from being entirely resistant to adjustment
with each new set of facts. In pointing to the relevant factors Utah
courts have considered in determining whether a defendant
engaged in enticement, Ray seems to argue that the enticement
provision is unconstitutionally vague based on the qualitative
nature of the totality of circumstances inquiry. But this, on its
own, is insufficient to render a statute vague. See id. at 603–04. To
the contrary, “the law is full of instances where a man’s fate
depends on his estimating rightly some matter of degree.” Id. at
604 (quotation simplified).
¶49 For the foregoing reasons, we hold that the enticement
statute is not unconstitutionally vague on its face.
II. Sealed Medical Records
¶50 Ray argues that the trial court erred in denying him access
to the remaining eleven pages of R.M.’s medical records. Among
other things, he argues that the court should have ordered the
disclosure of the sealed records under rule 16(a) of the Utah Rules
of Criminal Procedure, that the court misapplied rule 14 of the
Utah Rules of Criminal Procedure, and that Mother waived any
privilege in the records when she signed the medical record
disclosure form.17 But even assuming, without deciding, that the
17. Ray also argues that by withholding the remaining medical
records, the State violated its obligations under Brady v. Maryland,
373 U.S. 83 (1963), “to disclose material, exculpatory evidence to
(continued…)
20121040-CA 24 2022 UT App 95State v. Ray
court erred in denying Ray access to the remaining eleven pages,
such error is harmless and does not warrant reversal.
the defense in criminal cases.” State v. Bisner, 2001 UT 99, ¶ 32, 37
P.3d 1073 (quotation simplified). See Brady, 373 U.S. at 87 (“[T]he
suppression by the prosecution of evidence favorable to an
accused . . . violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.”). The State argues that because Ray
did not raise this issue in his original brief, it falls outside our
Supreme Court’s mandate on remand. Ray counters that
“although the Brady argument is a new argument, and is
supported by cases not previously cited, it is not a distinct claim.”
But because we conclude that any error in withholding the eleven
additional pages was harmless, we need not resolve this question.
More specifically, because Ray’s Brady argument is
unpreserved, he asks us to review it for plain error. This requires
him to “establish that (i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful.” State
v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified).
Under the third prong, for an error to be harmful, it “must be
shown to have been of such a magnitude that there is a reasonable
likelihood of a more favorable outcome for the defendant.” Id.
¶ 21 (quotation simplified). In other words, there must be “a
reasonable probability that, but for the alleged error, the outcome
in the case would have been different.” Id. (quotation simplified).
This standard mirrors the harmless error doctrine, under which
“we will reverse only if a reasonable likelihood exists that absent
the error, the result would have been more favorable to the
defendant.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218(quotation simplified). See Utah R. Crim. P. 30(a). Because we
conclude that any error in denying Ray’s motion to disclose the
additional medical records was harmless, it follows that the Brady
claim will likewise not pass muster under plain error review.
20121040-CA 25 2022 UT App 95State v. Ray
¶51 “Not every trial error requires reversal.” State v. Leech, 2020
UT App 116, ¶ 42, 473 P.3d 218 (quotation simplified). Under the
harmless error doctrine, “an error is harmless and does not
require reversal if it is sufficiently inconsequential that we
conclude there is no reasonable likelihood that the error affected
the outcome of the proceedings.” State v. Reece, 2015 UT 45, ¶ 33,
349 P.3d 712 (quotation simplified). See Utah R. Crim. P. 30(a)
(“Any error, defect, irregularity or variance which does not affect
the substantial rights of a party shall be disregarded.”). In other
words, “the likelihood of a different outcome absent the error
must be sufficiently high to undermine confidence in the verdict.”
Reece, 2015 UT 45, ¶ 33 (quotation simplified). Here, we are not
convinced that, had Ray been given access to the 11 additional
pages of R.M.’s medical records, there is a reasonable likelihood
he would have obtained a more favorable result at trial.
¶52 Ray asserts that “[t]his case rests entirely upon R.M.’s
credibility, and in turn, the State’s excuses for her inability to tell
the same story twice.” At trial, Ray’s strategy “was to show that
R.M. was not telling the truth by showing inconsistencies in her
various interviews, her preliminary hearing testimony, and her
trial testimony.” Accordingly, Ray contends that the sealed pages
were “crucial to . . . attacking R.M.’s credibility” and were
“favorable to show that R.M. and [Detective] were willing to lie
or seriously exaggerate under oath.” Specifically, R.M. stated at
trial that she was “on and off conscious” during her hospital stay.
And Detective at trial described R.M. as being “in a sedated state”
and “slow to respond” during the hospital interview. Detective
also stated that the interview did not last long because R.M.’s
responses quickly became “slurred,” “groggy,” and “incoherent.”
20121040-CA 26 2022 UT App 95State v. Ray
¶53 To counter these descriptions, Ray points to sections of the
sealed records18 and asserts that they “prove R.M. was not
incapable of communicating, was not unconscious or comatose,
was not intoxicated, and was not suffering from memory loss” at
the time Detective interviewed her at the hospital. Based on this,
Ray contends that, had he been given access to the records, “he
would have prevented R.M. and [Detective] from covering up her
inconsistencies with patently false statements.” Specifically, Ray’s
expert witness testified at the rule 23B hearing that “[n]othing in
the sealed records indicates that R.M. had a fever while
hospitalized or that she had trouble communicating during her
stay, that she was ever comatose, or that she had any problems
with her memory,” and that “[i]f R.M. had become comatose or
unable to communicate during her stay, [the expert witness]
would have expected that information to be included in the sealed
records.” The expert witness also pointed to an instance in the
medical records that described R.M. as responsive to an exam
despite being “quite sedated” from certain medications and
another instance that indicated that she was “alert and oriented”
during a different exam. And the expert noted R.M.’s discharge
summary that stated “R.M.’s ‘behavior was at times inconsistent
and suggestive of exaggerated symptoms.’”
¶54 But the expert also acknowledged that the sealed records
do “not represent the entire hospital record,” “which would also
include daily progress notes from the physician and a large
volume of data generated by nurses, laboratory results, and CT
scans.” The records are silent as to R.M.’s condition at the time
Detective interviewed her on March 24. Indeed, our review of the
18. Because the medical records in question remain sealed, we rely
on the expert witness’s testimony at the rule 23B hearing, which
is not sealed, for our discussion of the records. We have reviewed
the sealed records and have determined that they are consistent
with that testimony.
20121040-CA 27 2022 UT App 95State v. Ray
sealed records indicates that the interview took place squarely in
the middle of an eight-day period in which the records do not
specifically reference R.M.’s condition. And the medical records
containing the “Medications Given Report,” to which Ray was
given access prior to trial, indicate that within a 24-hour period of
the interview, R.M. was given several medications that the expert
witness acknowledged can have a sedative effect and can cause
“dizziness,” “drowsiness,” or “confusion.” Two of the
medications given to R.M. at that time were the same medications
that caused her to be “quite sedated” for an earlier medical exam.
This is consistent with Detective’s report, in which he indicated,
“I was informed that [R.M.] had been given a dose of pain
medication that made it difficult for her to speak clearly, but that
she could understand what I was asking of her, and that she could
answer the questions I would ask.”
¶55 Next, although the expert witness pointed to a note in
R.M.’s discharge summary that “R.M.’s ‘behavior was, at times,
inconsistent and suggestive of exaggerated symptoms,’” he
conceded that the sealed records do not indicate that R.M. “had
trouble communicating during her stay, that she was ever
comatose, or that she had any problems with her memory.” Thus,
this statement does not support the proposition that R.M. had
pervasive exaggerated memory or communication problems.
Furthermore, the aforementioned note in the records indicating
that R.M. became “quite sedated”—although still responsive—
from certain medications was made the day R.M. was admitted to
the hospital, which was before her parents discovered her
relationship with Ray. R.M. therefore would not have had any
relevant reason to exaggerate her reaction to those medications at
that time. And to the extent the sealed medical records contradict
R.M.’s trial testimony that she was “on and off conscious” during
her hospital stay, the jury had already heard Mother testify that
R.M. “was awake and asleep, awake and asleep,” but never
“unconscious” during that time.
20121040-CA 28 2022 UT App 95State v. Ray
¶56 And even assuming that the inconsistencies between
R.M.’s initial interview and her trial testimony were completely
excused by her medical condition, there were also several
significant inconsistencies between R.M.’s preliminary hearing
testimony and her trial testimony, for which R.M. offered no
explanation other than to state that she was “less afraid” at the
time of trial. For example,
• At the preliminary hearing, R.M. said that she and Ray had
just kissed on the first day, but at trial she said that Ray had
also touched her “bra and [her] underwear areas” over her
clothing.
• At the preliminary hearing, R.M. stated that Ray never
reached under her bra, but at trial she said that he
“momentarily” reached under her bra on the second day.
• At the preliminary hearing, R.M. said that Ray did not
touch her buttocks on the second day, but at trial she said
that he had.
• At the preliminary hearing, R.M. said that after she had
showered and shaved on the fourth day, she “[g]ot dressed
and went back into [Ray’s] room,” where they watched a
movie together in bed. But at trial, she said that they were
undressed, began kissing, and eventually moved to the
bed, where Ray touched the “outside” of her vagina with
his fingers for “[a] few minutes.”
• At the preliminary hearing, R.M. stated that Ray inserted
his fingers into her vagina, but at trial she stated that he
touched the “outside” of her vagina with his fingers.
• At the preliminary hearing, R.M. repeatedly denied
performing oral sex on Ray, but at trial she stated that she
did.
20121040-CA 29 2022 UT App 95State v. Ray
All these substantial, unexplained inconsistencies—many of
which Ray highlighted at trial—produced strong impeachment
evidence on their own. We are not persuaded that it is reasonably
likely that the additional incremental impeachment evidence
arguably to be gleaned from the remaining medical records
would have made a difference.
¶57 Finally, Ray’s own admissions corroborated much of
R.M.’s account regarding their relationship and her testimony
regarding touching that amounted to forcible sexual abuse. 19
19. Utah Code section 76-5-404 provides that
[a]n individual commits forcible sexual abuse if the
victim is 14 years of age or older and, under
circumstances not amounting to rape, object rape,
forcible sodomy, or attempted rape or forcible
sodomy, the actor touches the anus, buttocks, pubic
area, 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
individual or with the intent to arouse or gratify the
sexual desire of any individual, without the consent
of the other, regardless of the sex of any participant.
Utah Code Ann. § 76-5-404(1) (LexisNexis Supp. 2021).
“Accordingly, the forcible sexual abuse statute establishes two
variants of the offense.” Ray II, 2020 UT 12, ¶ 26, 469 P.3d 871.
“The first variant relates to the touching of specific areas of
another’s body (touching variant)” and “the second variant is
more general and establishes that otherwise taking indecent
liberties with another constitutes forcible sexual abuse (indecent
liberties variant).” Id. (quotation simplified).
Although the text of this statute as currently in effect is
substantially similar to the version in effect in March 2010, compare
Utah Code Ann. § 76-5-404(1) (Supp. 2021), with id. (2008), there is
(continued…)
20121040-CA 30 2022 UT App 95State v. Ray
Among other things, in his police interview and in the messages
Ray exchanged with Detective posing as R.M., Ray corroborated
R.M.’s account about how their relationship began and
progressed; that he gave R.M. her first kiss; that they played “Sexy
Truth or Dare” with two of R.M.’s friends; and that on the last day,
Ray decorated the hotel room with candles and flowers. More
one significant difference: in the version in effect in 2010,
over-the-clothes touching did not satisfy the touching variant of
forcible sexual abuse. Specifically, Utah Code section 76-5-407
listed three sexual offenses for which “any touching, even if
accomplished through clothing, is sufficient to constitute the
relevant element of the offense.” See id. § 76-5-407(3) (2008). Those
offenses are sodomy on a child, sexual abuse of a child, and
aggravated sexual abuse of a child. See id. § 76-5-407(3)(a)–(b).
Because section 76-5-407 excluded forcible sexual abuse from this
list, this court held that over-the-clothes touching did not satisfy
the touching variant. See State v. Jacobs, 2006 UT App 356, ¶¶ 6–9,
144 P.3d 226. However, this court held that “even when the
specified body parts are touched through clothing, the
perpetrator may still be punished under the indecent liberties
[variant] of the statute when, considering all the surrounding
circumstances, the conduct is comparable to the touching that is
specifically prohibited.” Id. ¶ 9. Based on this, R.M.’s trial
testimony provided sufficient evidence of forcible sexual abuse,
of both the touching and indecent liberties variants. And as
discussed above, we are not convinced that, had Ray been given
access to the 11 additional pages of R.M.’s medical records, there
is a reasonable likelihood he would have obtained a more
favorable result at trial.
In 2019, our Legislature amended section 76-5-407 to add
forcible sexual abuse to the list of offenses where touching over
the clothing is enough, see Utah Code Ann. § 76-5-407(3)(e) (Supp.
2019), and has since moved the over-the-clothing provision to
section 76-5-404 itself, see 2022 Utah Laws Ch. 181 § 87 (codified at
Utah Code section 76-5-404(2)(b)).
20121040-CA 31 2022 UT App 95State v. Ray
notably, when “R.M.” asked whether Ray had told his wife about
“going down [R.M.’s] pants,” Ray did not deny the assertion.
Instead, he texted, “no I have not violated any laws so there would
be noting to tell.” And at another point, when “R.M.” asked if she
could be pregnant because “you touched me there what if sperm
was on your hand” Ray again did not deny touching R.M. “there,”
instead replying that if she was pregnant, R.M.’s “parents would
have found a way to get [him] arrested.”
¶58 In sum, we are not convinced that it is reasonably likely
that Ray would have obtained a more favorable outcome at trial
if he had obtained access to the remaining medical records. For
this reason, even if there was error on the trial court’s part, such
error was harmless and does not warrant reversal.
CONCLUSION
¶59 The enticement provision is not unconstitutionally vague
on its face, and any error in withholding R.M.’s remaining
medical records was harmless. Accordingly, Ray’s conviction is
affirmed.
20121040-CA 32 2022 UT App 95