State v. Ray

2022 UT App 39THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ERIC MATTHEW RAY,
Appellant.
Opinion
No. 20121040-CA
Filed March 31, 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.
State v. Ray
BACKGROUND 1
¶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
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 39State v. Ray
nothing 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
2. R.M. testified at the preliminary hearing that Ray digitally
penetrated her vagina.
20121040-CA 3 2022 UT App 39State v. Ray
and went back 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 two tags: Ray and Edward Matthews. Mother
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 39State v. Ray
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 parking lot “talking and kissing” for “three to four
hours.” But this time, she said that Ray also put his hands down
20121040-CA 5 2022 UT App 39State v. Ray
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
disclosed in her interview at the hospital, which Sister recorded
in written form. 6
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.
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
(continued…)
20121040-CA 6 2022 UT App 39State v. Ray
¶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.
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.
(…continued)
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 39State v. Ray
¶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
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
8. Because the applicable provisions of the Utah Code in effect at
the relevant time do not materially differ from those currently in
effect, we cite the current version of the code for convenience.
20121040-CA 8 2022 UT App 39State v. Ray
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 review 9 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
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
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 39State v. Ray
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 “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
20121040-CA 10 2022 UT App 39State v. Ray
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
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
20121040-CA 11 2022 UT App 39State v. Ray
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
“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
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 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. Because Ray did not
raise these issues in his original brief, we have no occasion to
address them here.
20121040-CA 12 2022 UT App 39State v. Ray
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).
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
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 39State v. Ray
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
¶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,
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
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
(continued…)
20121040-CA 14 2022 UT App 39State v. Ray
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. Green, 2004 UT 76, ¶ 44, 99 P.3d 820(…continued)
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
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).
(continued…)
20121040-CA 15 2022 UT App 39State v. Ray
(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
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
(…continued)
Here, because we address only Ray’s facial challenge to the
enticement provision, we do so without first addressing Ray’s
conduct.
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 16 2022 UT App 39State v. Ray
¶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.”).
¶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
20121040-CA 17 2022 UT App 39State v. Ray
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
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
20121040-CA 18 2022 UT App 39State v. Ray
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
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
20121040-CA 19 2022 UT App 39State v. Ray
“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. ¶ 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
20121040-CA 20 2022 UT App 39State v. Ray
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 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).
20121040-CA 21 2022 UT App 39State v. Ray
¶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 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
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 22 2022 UT App 39State v. Ray
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” 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
20121040-CA 23 2022 UT App 39State v. Ray
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 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.
(continued…)
20121040-CA 24 2022 UT App 39State v. Ray
court erred in denying Ray access to the remaining eleven pages,
such error is harmless and does not warrant reversal.
¶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
(…continued)
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 39State v. Ray
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.”
¶53 To counter these descriptions, Ray points to sections of
the sealed records 18 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
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 26 2022 UT App 39State v. Ray
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 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
20121040-CA 27 2022 UT App 39State v. Ray
Mother testify that R.M. “was awake and asleep, awake and
asleep,” but never “unconscious” during that time.
¶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 28 2022 UT App 39State 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
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 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
ther ewould be noting to tell.” And at another point, when
“R.M.” asked if she could be pregnant because “you touched me
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).
20121040-CA 29 2022 UT App 39State v. Ray
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 30 2022 UT App 39