This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 12

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Petitioner,

v.

ERIC MATTHEW RAY,

Respondent.

No. 20170524

Heard April 11, 2018

Filed March 9, 2020

On Certiorari to the Utah Court of Appeals

Fourth District, Provo

The Honorable Lynn W. Davis

No. 101401511

Attorneys:1

Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen., 

Salt Lake City, for petitioner

Douglas J. Thompson, Provo, for respondent

JUSTICE PETERSEN authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Eric Matthew Ray was convicted of forcible sexual abuse 

of R.M., who was fifteen years old at the time. He appealed the 

__________________________________________________________

1 Amicus curiae attorneys are:

Jennifer Springer, Jensie L. Anderson, Salt Lake City, for the 

Rocky Mountain Innocence Center.
STATE v. RAY

Opinion of the Court

2

conviction, and the court of appeals concluded Ray’s trial counsel 

provided ineffective assistance because he did not object to the 

jury instruction for forcible sexual abuse. The instruction included 

an option to convict Ray if he took “indecent liberties” with R.M., 

but it did not define that phrase. The court of appeals concluded 

counsel was ineffective because he did not object to the jury 

instruction and ask the district court to either omit the phrase 

“indecent liberties” or define it. The question before us is whether 

the court of appeals erred in this determination.

¶2 Under the circumstances here, we conclude defense

counsel’s performance was not deficient. Accordingly, we reverse

and reinstate Ray’s conviction.

BACKGROUND2

¶3 Ray, a twenty-eight-year-old man who was attending law 

school in Illinois, accidentally texted R.M., a fourteen-year-old girl 

living in Utah. Although Ray had texted the wrong number, the 

two continued communicating via text messages, social media, 

and eventually telephone. Over time, R.M. started to have 

romantic feelings for Ray. He reciprocated. They discussed sex, 

love, and marriage. And eventually, Ray flew to Utah over his 

spring break to meet R.M. in person. At the time of Ray’s visit, 

R.M. was fifteen years old.

¶4 On the first day of Ray’s visit, he picked up R.M. from 

school and took her to his hotel room. They spent hours kissing 

on his bed, and he touched her “bra” and “underwear areas.”

Finally, he dropped her off on a corner near her home. Over the 

next three days, Ray continued to pick up R.M., take her to his 

hotel room, and engage in progressively serious sexual activity—

except for one day when R.M. was grounded and only did 

homework in Ray’s rental car for about an hour.

¶5 Although R.M. kept her interaction with Ray a secret 

from her family, her parents eventually learned of it. Less than a 

week after Ray left Utah, R.M. became extremely ill and was 

__________________________________________________________

2 “When reviewing a jury verdict, we examine the evidence 

and all reasonable inferences in a light most favorable to the 

verdict, reciting the facts accordingly. We present conflicting 

evidence only when necessary to understand issues raised on 

appeal.” State v. Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565 (citation 

omitted).
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Opinion of the Court

3

hospitalized for ten days. When Ray learned R.M. was sick, he 

repeatedly contacted the hospital and R.M.’s parents about her. 

He claimed to be a school friend named “Edward Matthews.”

¶6 When “Edward Matthews” mentioned knowing about an 

infection in R.M.’s vaginal area, R.M.’s mother considered this a 

“red flag.” Looking for more information, R.M.’s mother found an 

Edward Matthews on a list of R.M.’s Facebook friends. She then 

found a picture that was tagged with both Ray’s name and the 

name Edward Matthews. R.M.’s phone also contained photos of 

Ray.

¶7 R.M.’s family contacted a neighbor who in turn contacted 

a detective, informing the detective that the family was seeking 

help in uncovering the connection between R.M. and Ray. The 

detective went to the hospital and spoke with R.M.’s parents. He 

then spoke with R.M., but for only about ten minutes because she 

“was in a sedated state,” was “slow to respond,” and her answers 

“started getting” incoherent. R.M. disclosed some information 

about Ray and her contact with him.

¶8 The detective also posed as R.M. on Facebook and 

engaged in a conversation with Ray, attempting to elicit more 

information about Ray’s contact with R.M.

¶9 Ultimately, the State charged Ray with one count of 

object rape, two counts of forcible sodomy, and one count of 

forcible sexual abuse. In the district court proceedings, R.M. 

testified at a preliminary hearing and at trial.

¶10 During Ray’s trial, R.M. testified about what took place 

when Ray visited Utah. On the first day, a Wednesday, Ray met 

R.M. at her school and took her to his hotel room. There, Ray gave 

R.M. her first kiss. For hours the two talked, kissed, and lay on the 

bed together. Ray also touched R.M.’s “bra” and “underwear

areas.” He dropped her off at a corner near her house over five

hours later.

¶11 On Thursday, Ray again met R.M. at her school. This 

time, they were joined by R.M.’s friend and the friend’s boyfriend.

As her friends swam in the hotel pool, Ray and R.M. went to 

Ray’s room, disrobed to their underwear, lay on the bed, and 

kissed for about an hour. Ray touched R.M.’s breasts, both over

and under her bra. He also touched R.M.’s buttocks and her

vagina over her underwear. R.M. touched Ray’s “private parts”

over his underwear, but she refused his request for a “hand job.”
STATE v. RAY

Opinion of the Court

4

¶12 The two then got dressed and played a game Ray had 

brought—“Sexy Truth or Dare”—with R.M.’s friend and her 

boyfriend. Ray also showed them photos of sex toys. He drove 

them home, again dropping R.M. off at the corner near her house.

¶13 On Friday, Ray again met R.M. at her school. But she was 

grounded that day, so she just did homework for a short while in 

Ray’s car.

¶14 Early Saturday morning, Ray texted R.M. about getting 

together. They arranged for him to pick her up as she walked

toward her school, and he again took her to his hotel room. Ray 

had decorated his room with flower petals and candles. They 

started “making out.” After kissing awhile, R.M. took a shower 

and shaved her pubic area with Ray’s razor. In an earlier 

conversation, Ray had asked her to do this. She returned to the 

room naked. Ray was also naked. As they kissed on the bed, Ray 

touched outside R.M.’s vagina with his fingers. Still naked, the 

two watched the movie “New Moon” from the Twilight Series. 

Ray mentioned “a few times” how far they “could go without

getting in trouble with the law.”

¶15 R.M. testified that Ray then performed oral sex on her, 

and she reciprocated.3 She also testified that Ray asked her if she 

wanted to have sexual intercourse, but when she said she “wasn’t 

ready,” he said “he was okay to wait.” Ray then gave R.M. “a 

candle, a tee shirt, and a vibrator.” She testified that Ray told her

to “think of him” when she used it.

¶16 The State admitted into evidence Ray’s electronic 

conversations with the detective posing as R.M. Ray’s statements 

corroborated portions of R.M.’s testimony. Ray referenced: that 

the two had “kissed” and “made out”; getting “into bed and 

kiss[ing] for the rest of the day”; playing “truth or dare”; and “the 

buzzy toy.”

¶17 Ray’s defense was that he had not engaged in any sexual 

activity with R.M. In the alternative, he argued that if the jury did 

believe R.M.’s testimony, any sexual activity was consensual. Ray 

__________________________________________________________

3 The jury could not reach a unanimous verdict on the two 

forcible sodomy counts, which were based on R.M.’s testimony 

that she and Ray had engaged in oral sex with one another. We 

include this testimony not as an established fact, but to describe 

the events at trial.
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Opinion of the Court

5

developed his defense through cross-examination of the State’s 

witnesses, including R.M. Defense counsel cross-examined R.M. 

about variances in the statements she made to the detective, to 

family members, during her testimony at the preliminary hearing, 

and during her testimony at trial.4

¶18 With regard to the forcible sexual abuse count, the district 

court instructed the jury that in order to find Ray guilty, the jury 

must find that each of the following essential elements of the 

crime were proven beyond a reasonable doubt:

1. That the defendant, Eric Ray; 

. . . 

4. Did intentionally, knowingly, or recklessly; 

5. Touched [sic] the anus, buttocks, or any part of 

the genitals of another, or touched [sic] the 

breasts of a female person 14 years of age or 

older, or otherwise took indecent liberties with the 

actor or another[;]

6. With the intent to arouse or gratify the sexual 

desires of any person[;]

7. Without the consent of the other, regardless of 

the sex of any participant.

__________________________________________________________

4 For example, counsel elicited that at trial, R.M. testified that 

her feelings about Ray changed as early as September 2009, but on 

prior occasions R.M. testified and shared with others that her 

feelings changed in November or December 2009 or January 2010. 

At the preliminary hearing, R.M. testified that before March 2010, 

Ray had “not really” brought up sexual intercourse, which 

counsel characterized as “the exact opposite” of what she testified 

to at trial. At the preliminary hearing, R.M. testified that she and 

Ray “made out” on the first day of his visit and that he did not 

attempt to do anything other than kiss her that day. But at trial, 

R.M. testified that on the first day Ray touched her on her bra and 

underwear. And finally at trial, R.M. testified that after showering 

and shaving on Saturday, she exited the shower without getting 

dressed and lay on the hotel bed. But at the preliminary hearing, 

R.M. testified that she showered, shaved, and then got dressed 

and went back into the room.
STATE v. RAY

Opinion of the Court

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(Emphasis added.) To establish that R.M. did not consent, the 

State had to prove that she was “14 years of age or older, but 

younger than 18 years of age”; Ray was “more than three years 

older than [R.M.]”; and Ray “entice[d] or coerce[d] [her] to submit 

or participate.” See UTAH CODE § 76-5-406(11) (2010). 5

¶19 The district court did not provide a definition of 

“indecent liberties.” And defense counsel did not object to this 

instruction.

¶20 The jury found Ray guilty of forcible sexual abuse, but 

acquitted Ray of object rape and could not reach a verdict on the 

two counts of forcible sodomy. Ray appealed.

¶21 In the court of appeals, Ray made a number of 

arguments, including that his trial counsel was ineffective for 

failing to object to the jury instruction for forcible sexual abuse. 

The court of appeals agreed, and it reversed Ray’s convictions and 

remanded for a new trial.

¶22 We granted the State’s petition for certiorari. We exercise 

jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶23 “On certiorari, this court reviews the decision of the court 

of appeals for correctness, giving no deference to its conclusions 

of law.” State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650. “When we are 

presented with a claim of ineffective assistance of counsel, we 

‘review a lower court’s purely factual findings for clear error, but 

[we] review the application of the law to the facts for 

correctness.’” Ross v. State, 2019 UT 48, ¶ 65, 448 P.3d 1203 

(alteration in original) (citation omitted).

ANALYSIS

¶24 The only question before us is whether the court of 

appeals wrongly concluded that Ray’s counsel provided 

ineffective assistance at trial. The Sixth Amendment to the United 

States Constitution guarantees criminal defendants the effective 

assistance of counsel, and we evaluate claims of ineffective 

assistance under the standard articulated by the United States 

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See

__________________________________________________________

5 Because the statute has since been amended, we cite to the 

version of the statute then in effect.
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Opinion of the Court

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State v. Sessions, 2014 UT 44, ¶ 17, 342 P.3d 738. To prevail on this 

claim, Ray must demonstrate that (1) his counsel’s performance 

was deficient in that it “fell below an objective standard of 

reasonableness” and (2) “the deficient performance prejudiced the 

defense.” Strickland, 466 U.S. at 687–88.

¶25 Ray argues his counsel performed deficiently when he 

did not object to the undefined term “indecent liberties” in the 

forcible sexual abuse jury instruction. A person is guilty of 

forcible sexual abuse “if the victim is 14 years of age or older” and 

the actor touches the anus, buttocks, or any part of 

the genitals of another, or touches the breast of a 

female, or otherwise takes indecent liberties with another

. . . with intent to cause substantial emotional or 

bodily pain to any person or with the intent to 

arouse or gratify the sexual desire of any person, 

without the consent of the other.

UTAH CODE § 76-5-404(1) (2010) (emphasis added).

¶26 Accordingly, the forcible sexual abuse statute establishes 

two variants of the offense. The first variant relates to the 

touching of specific areas of another’s body (touching variant). 

The second variant is more general and establishes that 

“otherwise tak[ing] indecent liberties with another” constitutes 

forcible sexual abuse (indecent liberties variant).

¶27 However, at the time of the offense here, the statute did

not define the term “indecent liberties.”6 We have interpreted the 

statute’s use of the disjunctive “or” in combination with the term 

“otherwise” to mean that the indecent liberties variant 

“proscribe[s] the type of conduct of equal gravity to that 

interdicted in the first part” of the statute. In re J.L.S., 610 P.2d 

1294, 1295 (Utah 1980); see also State v. Maestas, 2012 UT 46, ¶ 273 

n.371, 299 P.3d 892 (noting that we have “applied the doctrine of 

ejusdem generis” in interpreting this phrase). And we have 

cautioned that the term “indecent liberties” “cannot derive the 

requisite specificity of meaning required constitutionally” unless 

__________________________________________________________

6 Until 2019, the statute did not define “indecent liberties.” But 

it now does. See UTAH CODE § 76-5-416. The legislature has also 

clarified that “any touching, even if accomplished through 

clothing, is sufficient to constitute the relevant element” of forcible 

sexual abuse. Id. § 76-5-407(3).
STATE v. RAY

Opinion of the Court

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it is considered to refer “to conduct of the same magnitude of 

gravity as that specifically described in the statute.” In re J.L.S, 610 

P.2d at 1296; see also State v. Lewis, 2014 UT App 241, ¶¶ 11–13, 337 

P.3d 1053. Only then is “the potential infirmity for vagueness . . . 

rectified.” In re J.L.S, 610 P.2d at 1296.

¶28 With regard to the first prong of Strickland, the court of 

appeals concluded that in light of the precedent discussed above,

counsel’s acceptance of the jury instruction here amounted to

deficient performance. The court of appeals explained,

Neglecting to provide an instruction as to the 

meaning of “indecent liberties” amounted to a 

failure to instruct the jury as to all the essential 

elements of the offense . . . [a]nd just as failure to 

instruct the jury as to the elements of the charged 

offense would constitute reversible error, in the 

context of the case before us, the failure to request an 

instruction explaining the element of “indecent 

liberties” constitutes objectively unreasonable 

assistance by counsel.

State v. Ray, 2017 UT App 78, ¶ 19, 397 P.3d 817 (citations 

omitted).

¶29 The court of appeals reasoned that “defense counsel had 

two basic options consistent with his duty to render effective 

assistance. Either he could have requested an instruction 

defining ‘indecent liberties,’ or he could have requested that the 

problematic phrase be excised from the elements instruction.” Id.

¶ 20 (citation omitted). The court of appeals concluded that

“[t]here was no conceivable tactical benefit to [Ray]” in taking 

neither of these actions, and therefore trial counsel performed 

deficiently. Id. ¶¶ 19–20 (alterations in original).

¶30 The State argues that the court of appeals’ analysis was 

incorrect. We agree.

¶31 First, not objecting to an error does not automatically 

render counsel’s performance deficient. We agree with the court 

of appeals that a district court instructing a jury on forcible sexual 

abuse should define indecent liberties. See In re J.L.S., 610 P.2d at 

1296 (cautioning that indecent liberties “cannot derive the 

requisite specificity of meaning required constitutionally” unless 

it is considered to refer “to conduct of the same magnitude of 

gravity as that specifically described in the statute”). But it does 

not automatically follow that counsel’s acquiescence to an 
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instruction that did not do so was unreasonable per se. The United 

States Supreme Court has rejected the notion that certain actions 

by counsel are per se deficient “as inconsistent with Strickland’s

holding that ‘the performance inquiry must be whether counsel’s 

assistance was reasonable considering all the circumstances.’” Roe 

v. Flores-Ortega, 528 U.S. 470, 478 (2000) (quoting Strickland, 466 

U.S. at 688). “[T]he reasonableness of counsel’s challenged 

conduct” must be judged “on the facts of the particular case, 

viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 

690.

¶32 Thus, it is not correct to equate counsel’s submission to 

an error with deficient performance. Defense counsel did not have 

a Sixth Amendment obligation to correct every error that might 

have occurred at trial, regardless of whether it affected the 

defendant. Counsel could pick his battles. We must view a

decision to not object in context and determine whether correcting 

the error was sufficiently important under the circumstances that 

failure to do so was objectively unreasonable—i.e., a battle that 

competent counsel would have fought. 

¶33 Second, the ultimate question is not whether counsel’s 

course of conduct was strategic, but whether it fell below an 

objective standard of reasonableness. In assessing counsel’s 

performance, the court of appeals determined that counsel’s 

assent to the jury instruction yielded “no conceivable tactical 

benefit to [Ray].” Ray, 2017 UT App 78, ¶ 20 (alteration in 

original). The court of appeals reasoned that if the defendant

demonstrates “there is no way that counsel’s actions might be 

considered sound trial strategy, then the presumption [of 

reasonable assistance] is overcome.” Id. ¶ 18 (citation omitted)

(internal quotation marks omitted).

¶34 But Strickland demands reasonable assistance, not 

strategic assistance. See Flores-Ortega, 528 U.S. at 481 (“The 

relevant question is not whether counsel’s choices were strategic, 

but whether they were reasonable.”). It is correct that the United 

States Supreme Court has directed reviewing courts to “indulge a 

strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant 

must overcome the presumption that, under the circumstances, 

the challenged action ‘might be considered sound trial strategy.’” 

Strickland, 466 U.S. at 689. But “these presumptions are simply 

tools that assist [courts] in analyzing Strickland’s deficient 

performance prong.” Bullock v. Carver, 297 F.3d 1036, 1046 (10th
STATE v. RAY

Opinion of the Court

10

Cir. 2002). If it appears counsel’s actions could have been intended 

to further a reasonable strategy, a defendant has necessarily failed 

to show unreasonable performance.7 See Strickland, 466 U.S. at 688. 

But the converse is not true. “[E]ven if an omission is inadvertent” 

and not due to a purposeful strategy, “relief is not automatic.” 

Yarborough v. Gentry, 540 U.S. 1, 8 (2003).

[W]hether a counsel’s actions can be considered 

strategic plays an important role in our analysis of

Strickland’s deficient performance prong. As a 

general matter, we presume that an attorney 

performed in an objectively reasonable manner 

because his conduct might be considered part of a 

sound strategy. Moreover, where it is shown that a 

challenged action was, in fact, an adequately 

informed strategic choice, we heighten our 

presumption of objective reasonableness and 

presume that the attorney’s decision is nearly 

unchallengeable. The inapplicability of these 

presumptions (because, for example, the attorney 

was ignorant of highly relevant law) does not, 

however, automatically mean that an attorney’s 

performance was constitutionally inadequate. 

Instead, we still ask whether, in light of all the 

circumstances, the attorney performed in an 

objectively reasonable manner.

Bullock, 297 F.3d at 1051.

¶35 Language in some of our appellate case law has muddied 

this point. See, e.g., State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (“To 

satisfy the first part of the test, defendant must overcome the 

strong presumption that [his] trial counsel rendered adequate 

assistance, by persuading the court that there was no conceivable 

__________________________________________________________

7 We note the concern of amicus curiae that “virtually any act or 

omission of trial counsel could be construed as part of a 

hypothetical ‘strategy’ (rather than an error that is objectively 

unreasonable).” But when inquiring whether counsel may have 

had a sound trial strategy, it must fall “within the wide range of 

reasonable professional assistance.” Strickland v. Washington, 466 

U.S. 668, 689 (1984); see also State v. Vallejo, 2019 UT 38, ¶¶ 41–70, 

449 P.3d 39. An objectively unreasonable strategy will not suffice. 
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tactical basis for counsel’s actions.” (alteration in original) (citation 

omitted) (internal quotation marks omitted)); Lewis, 2014 UT App 

241, ¶ 13 (finding counsel deficient where there “was no 

conceivable tactical benefit” to his omission); State v. Doutre, 2014 

UT App 192, ¶ 24, 335 P.3d 366 (“If clearly inadmiss[i]ble evidence 

has no conceivable benefit to a defendant, the failure to object to it 

on nonfrivolous grounds cannot ordinarily be considered a 

reasonable trial strategy.”).

¶36 We take the opportunity to clarify and realign our case

law on this point with United States Supreme Court precedent. To 

be clear, it was not error for the court of appeals to assess whether 

counsel may have had a sound strategic reason for not objecting 

to the jury instruction. Indeed, the United States Supreme Court 

has directed that defendants must overcome such a presumption. 

See Strickland, 466 U.S. at 689. But when the court of appeals 

concluded there was no strategic reason for counsel to not object 

to the instruction, the deficiency analysis was not at an end. A 

reviewing court must always base its deficiency determination on 

the ultimate question of whether counsel’s act or omission fell 

below an objective standard of reasonableness. Here, that means 

we must ask whether defining indecent liberties was sufficiently 

important under the circumstances that counsel’s failure to argue 

for a clarifying jury instruction fell below an objective standard of 

reasonableness. See id.

¶37 Under the circumstances here, we disagree with the court 

of appeals’ conclusion that counsel’s acquiescence to the jury 

instruction could not have been sound strategy. Importantly, 

neither side put the precise meaning of “indecent liberties” at 

issue. The State focused on the specific touching variant of forcible 

sexual abuse, not “indecent liberties.”8

¶38 And the definition of “indecent liberties” was not 

pertinent to Ray’s defense. Ray’s primary defense was that he had 

not engaged in sexual activity with R.M. at all. Counsel pursued 

__________________________________________________________

8 The State focused on evidence related to the touching variant: 

i.e., that Ray had touched R.M.’s breasts over and under her bra, 

her buttocks, and her vagina. The State briefly mentioned 

indecent liberties only one time in its closing argument, 

connecting it to R.M.’s testimony that she had “touched [Ray’s] 

private part in the front.”
STATE v. RAY

Opinion of the Court

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this strategy by cross-examining R.M. and highlighting 

inconsistencies in her various statements. He devoted most of his 

closing argument to challenging R.M.’s credibility as a witness, 

telling the jury to “think about all the lies that she’s told.” In the 

alternative, he argued that if the jury did believe her, there had 

been no enticement or coercion because the entire relationship 

was consensual. Importantly, Ray did not parse the evidence of 

sexual conduct to argue that it did not rise to the level of forcible 

sexual abuse.

¶39 Within that context, counsel could have made a 

“reasonable professional judgment,” Strickland, 466 U.S. at 690, 

not to draw the State’s attention to the indecent liberties variant. 

While the State did not focus its attention on indecent liberties, it 

could have. The statute gave the State the option of proving either 

variant of forcible sexual abuse.

¶40 And counsel could have reasonably concluded there was 

credible evidence before the jury that, while it did not fit within 

the specific touching variant, could have constituted indecent 

liberties. For example, R.M. testified that in addition to Ray 

touching her, she and Ray spent hours “making out” in a hotel 

room, watched a movie together while they were naked, and that 

she had touched the front of his “private parts.”

¶41 And Ray’s own statements corroborated much of this. In 

his electronic communications with the detective posing as R.M., 

Ray referenced: that the two had “kissed” and “made out”; 

getting “into bed and kiss[ing] for the rest of the day”; playing 

“truth or dare”; and “the buzzy toy.”

¶42 In light of this evidence, which came partly from Ray

himself, counsel could have reasonably concluded that clarifying 

indecent liberties would not help clear Ray and could instead 

broaden the State’s arguments against him. While counsel’s focus

was that the inconsistencies in R.M.’s statements showed she 

could not be believed at all, counsel could have reasonably judged 

that even if the jury did not fully accept this argument, the 

inconsistencies he highlighted would more effectively undermine 

the State’s proof on charges involving specific acts rather than 

more general “indecent liberties.”

¶43 We conclude counsel could have reasonably preferred the 

State to remain focused on the specific touching variant of forcible 

sexual abuse, and chosen not to draw the State’s attention to the 

indecent liberties variant by objecting to the related jury 
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Opinion of the Court

13

instruction.9 Accordingly, Ray has failed to overcome the “strong 

presumption” that his counsel exercised reasonable professional 

judgment.

¶44 We clarify, however, that even if we were unable to 

conceive of a possible sound strategy behind counsel’s conduct, it 

would not have ended our analysis. We would have proceeded to 

determine whether correcting the erroneous jury instruction was 

sufficiently important that counsel’s inaction was objectively 

unreasonable. In light of the fact that neither side had put the 

meaning of indecent liberties at issue, and that it was not germane 

to the defense, we likely would have arrived at the same 

conclusion. 

¶45 Because we conclude counsel’s performance was not 

deficient, we do not address the prejudice prong of Strickland.

CONCLUSION

¶46 We conclude that Ray’s counsel did not provide 

ineffective assistance. Accordingly, we reverse and reinstate Ray’s 

conviction. We remand to the court of appeals to address Ray’s 

remaining claims.

__________________________________________________________

9 The court of appeals assumed counsel could have 

successfully asked for “indecent liberties” to be either clarified or 

excised. But the indecent liberties alternative is statutorily 

established, and there was trial evidence in support of it. (For 

example, in its closing the State referenced R.M.’s testimony that 

she had “touched [Ray’s] private part in the front,” which is not 

specifically listed in the touching variant of forcible sexual abuse 

but would likely be deemed equally serious by a factfinder.) 

Accordingly, we are not certain that if defense counsel had 

objected to the term as overly vague, the court would have given 

counsel the option of deleting it, because a definition would have 

addressed counsel’s concern.