2022 UT App 8

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BORZIN MOTTAGHIAN,

Appellant.

Opinion

No. 20200199-CA

Filed January 21, 2022

Fourth District Court, American Fork Department

The Honorable Robert C. Lunnen

No. 171101546

Ann M. Taliaferro, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, 

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES

JILL M. POHLMAN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 Borzin Mottaghian created an internet advertisement

seeking women willing to participate in “paid anatomy 

research” for the development of “medical devices.” The 

advertisement indicated that both anal and vaginal 

measurements would be taken. Two women, under the 

impression that Mottaghian was a medical professional engaged 

in legitimate medical research, eventually agreed to participate, 

and Mottaghian subjected both of them to anal and vaginal 

probes. But Mottaghian was not a medical professional and was 

not engaged in medical research, and the women later told

police about their experience. A jury later convicted Mottaghian 

of various sex crimes, determining—under the totality of the 

circumstances—that the women had not consented to 
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Mottaghian’s behavior. Mottaghian now appeals his convictions, 

asserting among other things that the State failed to establish 

nonconsent beyond a reasonable doubt, and that his trial 

attorneys rendered ineffective assistance. We affirm. 

BACKGROUND1

¶2 In 2017, Mottaghian began pursuing an apparent desire to 

produce and sell sex toys, including a device that would be 

designed to simultaneously stimulate a woman’s vagina and 

anus. Mottaghian’s efforts in this regard were, charitably, in the 

nascent stages: he was not part of any company in a position to

design or manufacture such devices, and he had no experience 

in the field. Indeed, at the time of the events giving rise to this 

case, Mottaghian was, by trade, the owner of two restaurants; 

although he was a law school graduate, he was not—and never 

had been—a medical doctor and had never possessed any kind 

of medical licensure. 

¶3 Instead of utilizing data regarding anatomical sizing for 

sex toys that may have already existed in the marketplace, 

Mottaghian made the decision to try to obtain his own vaginal 

and anal measurement data. To gather this data, he placed an

advertisement on Craigslist seeking women willing to 

participate in “anatomy research” for the development of new 

“medical devices,” and promised to pay $200 in return for 

participation. The advertisement indicated that, as part of this 

“research,” measurements would be taken of both the vaginal 

and anal areas. However, the advertisement did not mention or

reference sex toys in any way. On at least one occasion, a woman

 

1. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d 

587 (quotation simplified).
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20200199-CA 3 2022 UT App 8

who responded to the advertisement declined to participate once 

she learned that the measurements were for “adult toys.”

Kelsey

¶4 At the time Mottaghian ran the advertisement, Kelsey2

had recently moved back to Utah and was unemployed. To 

make ends meet, she was staying with various friends, living off 

her savings, and picking up random “jobs and gigs” from 

Craigslist to further support herself. During one of her searches 

for work on Craigslist, Kelsey stumbled upon the advertisement.

There, she read that “[m]easurements are needed at the vaginal 

and anus areas” and that the participants would be paid a “$100 

flat fee for vaginal test” and an “[e]xtra $100 flat fee for anus 

test.” Because the advertisement mentioned “anatomy research” 

and “medical devices,” Kelsey presumed that the measurements 

would be taken by a doctor in a “medical facility.” Mottaghian 

himself confirmed this presumption by telling Kelsey in an email 

that the procedure would be conducted by “[t]he owner of the 

company” who “is the engineer and doctor.” Mottaghian, 

however, did not identify himself in this message and instead

signed the email as “Max.” Responding to “Max,” Kelsey

scheduled an appointment. The only additional information she 

received prior to her appointment was an address, parking 

information, guidance on what to wear, and instructions to 

“shower [her] vaginal and anus area” prior to the appointment.

¶5 On the day of the appointment, Kelsey arrived at the 

designated location. There, she was greeted by a receptionist

who led her to the room where the measurements were to be 

taken. Mottaghian opened the door to the room and showed her 

in, introducing himself as Borzin Mottaghian and not as “Max.”

When Kelsey entered the room, she noticed that “it wasn’t like 

your typical doctor’s office type of a thing”; it had a couch, desk, 

 

2. A pseudonym. 
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20200199-CA 4 2022 UT App 8

and a black massage table. And unlike most medical facilities, 

there was no sanitary paper covering the table.

¶6 Upon questioning by Kelsey about the type of products 

he was creating, Mottaghian made no mention of sex toys and 

instead stated that he was “developing a catheter to be used on 

patients during surgeries,” but insisted that he “couldn’t give 

specific details” because of “trade secrets.” He also stated that 

his company “had a warehouse” in another state that served as 

“their headquarters,” and that he frequently ran “tests” in Utah 

and sent the “research back to” the “other employees” at 

“headquarters,” where the “prototypes” were made. He then 

informed Kelsey that he would be taking measurements of both

her vagina and anus to ensure that the products he was 

developing were comfortable for the patients who would be 

using them in surgery. After further explaining the product and 

procedure, Mottaghian had Kelsey sign a nondisclosure 

agreement and then instructed her to “disrobe from the waist 

down and lay on the table.” Mottaghian did not leave the room 

while Kelsey disrobed, did not provide her with a gown, and did 

not cover the massage table with any form of sanitary paper 

before she lay down.

¶7 Mottaghian then asked Kelsey for permission to take a 

photograph of her vagina to keep in the company’s “records.”

Kelsey agreed, and Mottaghian took the picture on a mobile

phone. After taking the picture, he brought over a tray of 

instruments that he would be using to take the measurements.

Mottaghian explained that after applying lubricant, he would 

insert metal “rods” to the point of discomfort and, when Kelsey

told him to stop, he would remove the rod slightly to a bearable 

depth and then take the measurement from that point.

Mottaghian explained that he would be taking measurements

both vaginally and anally in several different positions. 

¶8 Mottaghian began by using his fingers to apply lubricant

to the outside of Kelsey’s vagina and to the rod. He then told her 

he was “going to insert [the rod] in” and to let him know when it 
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got uncomfortable. He proceeded to insert the rod into her 

vagina two times, removing the rod to take the measurement 

when Kelsey indicated she was uncomfortable. For the next two 

measurements, Mottaghian changed his hand position so that his 

thumb was resting on her clitoris. He then performed anal 

measurements in a similar manner, with his hand continuing to 

rest on Kelsey’s clitoris for the duration of the measurements.

¶9 After Mottaghian finished taking these measurements, he

had Kelsey switch positions for additional measurements. He 

again applied lubricant to the outside of her vagina, but this time

inserted his finger into her vagina and rubbed her clitoris. He 

stated he was doing this because she needed to “relax . . . 

because the measurements aren’t as accurate unless you’re 

relaxed.” After he had done this for some time, Mottaghian

began using the rod to measure her vagina in the new position.

This time, however, instead of removing the rod between 

measurements, Mottaghian began moving the rod in and out of 

Kelsey’s vagina in a manner that she perceived as similar to 

intercourse, telling her she was still too tense and this would 

help her relax. Mottaghian took three or four measurements in 

this position, moving the rod in and out consistently between 

each measurement. He also applied lubricant and inserted his 

fingers into her anus while rubbing her clitoris in a circular 

motion. He proceeded to take anal measurements, again 

consistently moving the rod in and out between each 

measurement.

¶10 Mottaghian then instructed Kelsey to return to the first 

position “because after all of this [she] was probably more 

relaxed than [she] had been in the beginning” and he could thus 

obtain more accurate measurements than he originally had.

Mottaghian again inserted his fingers into her vagina and

rubbed her clitoris; at this point, Kelsey told him that “this feels 

a little bit sexual in nature and I’m uncomfortable.” Mottaghian

responded that it was “normal to feel that way because I am 

inside of your sexual organs” and that “if you feel like you’re 

going to have an orgasm, that’s okay, it will help you relax, and 
State v. Mottaghian

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it wouldn’t be the first time it has happened.” Kelsey was 

surprised and “scared” by Mottaghian’s dismissive answer, and 

thought it was far too casual to be a doctor’s response.

Mottaghian then took additional measurements of Kelsey’s 

vagina, this time moving his thumb on her clitoris in a more 

“vigorous” manner, almost as if he were now “trying to make 

[her] orgasm.” He also resumed inserting the rod in and out of 

her vagina, as he had done previously, and began inserting his 

fingers and making “circular motions” while maintaining 

contact with her clitoris. Mottaghian then followed the same 

routine for the final measurement of her anus: inserting his 

fingers, inserting the rod, and “rubbing” her clitoris.

¶11 When the procedure ended, Mottaghian gave Kelsey an 

envelope with $200, thanked her, and told her that when the 

“prototypes” arrived, she could return and test them for an 

additional $200. After leaving the building, Kelsey called two 

friends to discuss the experience she just had, and to seek advice 

on whether the nondisclosure agreement she had signed 

prevented her from reporting the incident to police. After being 

advised that the agreement did not prevent her from reporting 

the incident, Kelsey called police and, at their suggestion, went 

to a hospital for a sexual assault examination. Detectives then 

began to investigate the situation. 

Caroline

¶12 Around the same time, Caroline3 also responded to the 

advertisement and volunteered to participate. Caroline was a 

graduate student who occasionally visited Craigslist to search 

for short-term jobs. Before agreeing to participate, Caroline also

engaged in an email conversation regarding the advertisement

with a person identifying himself as “Max,” and scheduled an

appointment for the day after Kelsey’s. When Caroline arrived, 

the receptionist took her to meet Mottaghian, who introduced 

 

3. Also a pseudonym. 
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20200199-CA 7 2022 UT App 8

himself as “Max,” the person she had been communicating with.

He made no mention of sex toys, and instead explained that the 

research he was conducting was for the production of tampons 

and catheters, but that he could not tell her “the companies that 

he was working for because that was confidential.” Mottaghian 

had Caroline sign a nondisclosure agreement, and explained 

that, as part of the agreement, her identity would remain private 

and she would be referred to only as participant number 105, a 

statement she interpreted as meaning that 104 other people had 

previously participated.

¶13 Mottaghian explained the procedure to Caroline in much 

the same way he had explained it to Kelsey. He told her that he 

would be taking her measurements in both “relaxed and 

neutral” positions, that she should tell him when she was in 

pain, and that he would remove the measuring rod slightly to 

take the measurement when she indicated discomfort. He also 

told her that he would “help [her] relax” if she needed to, 

though Caroline did not understand what that meant at the time.

Mottaghian asked her if she had ever had vaginal or anal sex, to 

which she replied that she had not. He then told her that her lack 

of sexual experience might extend the length of the procedure 

and cause it to be more painful, but that it was “fine that [she 

was] a virgin” because he needed “all people to participate in 

this.”

¶14 Mottaghian instructed Caroline to disrobe from the waist 

down and to position herself on the table. As with Kelsey’s 

procedure, Mottaghian did not provide Caroline with a gown or 

cover the table with any sort of sanitary paper, and he remained 

in the room while she removed her clothes. After Caroline was 

on the table, but before Mottaghian began the examination, he 

asked to take a photograph of her vagina, but she declined.

Mottaghian then began inserting one of the rods into Caroline’s 

vagina, instructing her to “tell [him] when it really hurts.” While 

she was in pain the entire time, Caroline finally told Mottaghian 

to stop when the pain became “unbearable,” at which point he 
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20200199-CA 8 2022 UT App 8

pulled the rod out and took a measurement. After taking vaginal 

measurements, he conducted the same procedure anally.

¶15 Mottaghian then told Caroline he needed to get “relaxed 

measurements” and, without any further explanation, inserted 

his fingers into her vagina and placed a finger on her clitoris. He 

told her he was trying to “loosen [her] up . . . because [she] was a 

virgin [and] was really tight and [she] needed to be looser.”

After removing his fingers, Mottaghian began repetitively 

moving the rod in and out of Caroline’s vagina until she was 

“loose enough” for “relaxed” measurements. After taking 

vaginal measurements, he inserted his finger into her anus, 

moving it in and out; he then did the same with the rod. When 

Mottaghian finished inserting the rod into Caroline’s anus, she 

was “in a lot of pain” and told Mottaghian that she needed to go 

to the restroom. He responded by reassuring her that they were

“almost done” and if she stayed, he could “do it quickly.”

Caroline, however, was “adamant” about going to the restroom 

because “in that moment [she] didn’t think [she] could keep 

doing it.”

¶16 After Caroline arrived in the restroom, she began crying 

and “trying to comprehend . . . the pain.” She tried to “get the 

courage to go back in there,” not wanting to be a “quitter,” and 

thinking of all the other women that had apparently participated 

before her, thinking that it was “[her] fault that it was so painful, 

and [she] just needed to . . . deal with it.” She also reasoned that 

if she stopped the procedure at that point, everything she “had 

just gone through would be useless because they’re not going to 

use research that’s not completed.” She therefore decided to 

return to the room and complete the study.

¶17 When Caroline returned from the restroom, Mottaghian

instructed her to once again take off her pants and get back onto 

the table. He commented that “[she] had really tightened up and 

. . . that he needed to get [her] loose again.” He attempted this by 

once again inserting his fingers and the rod into her vagina and 

anus. He then told Caroline “he needed to get a measurement 
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20200199-CA 9 2022 UT App 8

with both of them at the same time,” and proceeded to insert 

rods into her vagina and anus simultaneously. Mottaghian

repeatedly told her to “try to relax” and that she was “really 

tense,” but all Caroline could do was “breathe,” as “it was just

really painful having both of the metal rods in.”

¶18 After Mottaghian had finished inserting the rods into

Caroline’s vagina and anus, he instructed her to move to a 

different position and again inserted the rods into both her 

vagina and anus. He also took measurements with both rods 

inserted simultaneously into her vagina and anus from this 

position. At this point, Caroline was “in a lot of pain and . . . was 

shaking and crying,” and she told Mottaghian she “hurt too bad 

and to stop.” She then put her face down on the table and 

continued to cry, at which point Mottaghian told her she “looked 

more relaxed” and began inserting the rods again. For the last 

set of measurements, Mottaghian instructed Caroline to assume 

her previous position, at which point he stated she had “closed 

up again” and “he had to loosen [her] back up by putting them 

in and out and moving them around.” He then informed her she 

“still wasn’t loose enough, so he started using his hand” and 

“started touching [her] clitoris again.” Caroline told Mottaghian 

that she “didn’t like that,” but he nonetheless continued. When 

he finished with the measurements, he handed her an envelope 

with $200 and instructed her “to go home and shower as soon as 

[she] can.” At that point, Caroline left, and made no report to the 

police—at least not at that time—about the incident. 

The Undercover Officer

¶19 The following week, Caroline received a phone call from 

a detective informing her that her name had come up in a 

criminal investigation. That same day, she spoke to detectives 

(the same detectives who were investigating Kelsey’s claims) 

who informed her that Mottaghian was not a doctor; at that 

point, she told the detectives the details of her experience with 

Mottaghian. By this time, the detectives were preparing to send 

in an undercover officer to validate the allegations against 
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20200199-CA 10 2022 UT App 8

Mottaghian, and one of them was using Kelsey’s email account 

to communicate with Mottaghian directly, attempting to 

schedule an appointment for Kelsey’s fictitious roommate

“Jenna.” Posing as “Jenna,” a detective told Mottaghian that 

Kelsey had told “Jenna” about the advertisement and had stated 

that the “measurements were done by a doctor,” and asked him

to confirm that this was correct and whether “Jenna” could 

schedule an appointment. Mottaghian responded in the 

affirmative to this compound question.

¶20 An undercover officer, posing as “Jenna,” then went to 

meet Mottaghian. The officer recorded the interaction. 

Mottaghian explained to “Jenna” that his “clients” were “big 

names” that she could “see on the shelves,” but that he could not 

“disclose” their identities, and that “there’s a 90 percent chance 

that you actually have used one of my products.” He explained 

that he “engineer[s] the product for them” and that “they get to 

say it’s theirs.” He then explained the procedure to her, stating 

that he would be taking measurements of her vagina and anus 

and that he would be using “surgical lubricant” as part of the 

process. The officer asked Mottaghian if he was the doctor or if 

someone else would be coming in to perform the procedure, to 

which Mottaghian replied, “Just me.” Shortly thereafter, 

Mottaghian handed the officer a nondisclosure agreement to 

sign, and the officer stated, “All right. Let’s do this.” At that 

point, detectives who had been waiting outside the door came 

in, stopped the procedure, and arrested Mottaghian.

Legal Proceedings

¶21 After investigation, the State charged Mottaghian with 

twelve counts of object rape, two counts of forcible sexual 

assault, two counts of attempted object rape, and one count of

attempted forcible sexual abuse. The State later amended the 

information, opting to charge Mottaghian with fewer counts: 

four counts of object rape (two regarding Kelsey and two 

regarding Caroline), two counts of forcible sexual abuse (one 

regarding Kelsey and one regarding Caroline), and two counts 
State v. Mottaghian

20200199-CA 11 2022 UT App 8

of attempted object rape (regarding the undercover officer 

posing as “Jenna”). Mottaghian pled not guilty to these charges

and the case proceeded to a four-day jury trial.

¶22 At trial, the State presented testimony from many 

witnesses, including Kelsey, Caroline, and the undercover 

officer—who testified about the events described above—and 

several other law enforcement officers, who testified about their

investigation into Mottaghian’s actions. 

¶23 The State also elicited testimony from Mottaghian’s close 

friend and business partner (Friend), who had begun to help 

Mottaghian—starting just days before the appointments with 

Kelsey and Caroline—design a logo and create a website for a

new “company.” When Friend asked Mottaghian what the new 

company was for, Mottaghian sent him a picture of a vagina 

(which the State alleged was the one he took of Kelsey) and told 

him that he was planning to sell sex toys. Mottaghian also told 

Friend that he was conducting “research” that he claimed he 

needed in order to develop original sex toys for sale on the 

website. Mottaghian also texted Friend—after the incident with 

Caroline—that he had “just finished with a virgin Mormon girl”

and, in response to a question about whether the participant was

“comfortable,” stated that his “techniques sooth[e] them.” In 

response to this message, and after learning more about the 

“research” Mottaghian was conducting, Friend recommended 

that Mottaghian stop the appointments, telling him that, from an 

“outside perspective,” his “research” looked “weird.” Friend

suggested that, if Mottaghian was intent on producing sex toys, 

he should use already-existing measurement data.

¶24 The State also presented testimony from Mottaghian’s exwife, who had been married to Mottaghian at the time of the 

events in question. She testified that after Mottaghian’s arrest, 

she saw him create a “diagram of a . . . tampon” and then 

backdate it to make it appear as if it had been created before the 

appointments with Kelsey and Caroline. She testified that she 
State v. Mottaghian

20200199-CA 12 2022 UT App 8

gave that diagram to an attorney she had hired to defend 

Mottaghian. 

¶25 Mottaghian defended the case primarily by asserting that 

Kelsey and Caroline had volunteered to participate in activity 

that they knew would involve vaginal and anal probes, and that 

the State had therefore failed to prove that they had not 

consented to the events. Because his defense primarily centered 

around consent, Mottaghian did not contest that Kelsey and 

Caroline had been subjected to vaginal and anal probes and—

because Mottaghian elected not to testify in his own defense—no 

witness contradicted Kelsey’s and Caroline’s accounts of the 

penetrations and touches that occurred in the examination room. 

¶26 At the close of the State’s case, Mottaghian moved for a 

directed verdict on all counts. With regard to the six counts 

involving Kelsey and Caroline, Mottaghian argued that the State 

had presented insufficient evidence to prove nonconsent,

asserting that the “two complaining witnesses did in fact get 

what they signed up for, knowingly.” And with regard to the 

two counts involving the undercover officer, Mottaghian argued

that the State had not proved that he had taken a “substantial 

step” toward commission of the crime, as required by the 

attempt statute. The trial court denied these motions, concluding 

that the State had presented sufficient evidence on both 

contested issues.

¶27 In his defense, Mottaghian called two witnesses: a 

business associate, who testified that Mottaghian had in fact 

spoken to him about developing tampons and catheters, in 

addition to adult sex toys, and one of his prior attorneys, who 

testified briefly that he had never been given the backdated 

diagram, as Mottaghian’s ex-wife had testified. Mottaghian also 

vigorously cross-examined Kelsey and Caroline, attempting to 

establish that they had in fact consented. 

¶28 In particular, while cross-examining Caroline on the 

second day of trial, Mottaghian’s attorneys attempted to cast 
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doubt on her testimony that she had cried during the procedure 

and at one point had told Mottaghian to stop. To make this 

point, counsel asked Caroline to admit that, in her various police 

interviews, she had made no mention of crying or of telling 

Mottaghian to stop, and that she had mentioned those details for 

the first time during her trial testimony. On redirect, the State 

attempted to show that Caroline had in fact mentioned those 

details to police in various text messages, but it soon became 

apparent that the messages themselves had not been disclosed to 

defense counsel prior to trial, even though some of them had 

been described in detail in one of the disclosed police reports.

¶29 Mottaghian’s counsel then moved for a mistrial, claiming 

that the State had either “destroyed or did not keep” the text 

messages, and that counsel themselves had been ineffective for 

not noticing the reference to the text messages in the police 

report. The court called for a recess to consider the motion. 

During the recess, the State was able to obtain copies of the text 

messages from Caroline, and provided them to defense counsel. 

After the recess, Mottaghian’s attorneys announced that, after 

“consulting with each other” during the break, they wanted to 

“cure [the problem] [them]selves through the examination 

process” by cross-examining both Caroline and the detective 

about the newly produced text messages. The next day, 

Mottaghian’s attorneys reiterated that they had resolved to wait 

for the detective to testify and then, if there was still an “issue,” 

they would renew the motion for a mistrial, but if they perceived 

no outstanding issue at that juncture, they would simply

withdraw the motion. Mottaghian’s counsel was allowed to 

cross-examine both Caroline and the detective about the text 

messages, and never renewed the motion for a mistrial.

¶30 After all the evidence was presented, the trial court 

instructed the jury. The court gave the jurors a general 

unanimity instruction stating that their “verdict must be 

unanimous.” But no party asked for, and the court did not give, 

any further instruction on unanimity. With regard to consent, 

the court gave an instruction very similar to the Model Utah Jury 
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Instruction regarding consent. See Model Utah Jury Instructions

2d CR1615 (2020), https://www.utcourts.gov/resources/muji/inc_

list.asp?action=showRule&id=44#1615 [https://perma.cc/SPK9-

QJCC]. In that instruction, the court told the jurors that the State 

had the burden to prove that Caroline and Kelsey “did not 

consent to the alleged sexual conduct.” The instruction 

contained a list of “[e]xamples of lack of consent,” which 

included several scenarios set forth in Utah Code section 76-5-

406, but it also contained a catch-all provision stating that jurors

could find nonconsent in “[a]ny other circumstances where 

[they] find a lack of consent when considering the common, 

ordinary meaning of consent.”

¶31 After deliberation, the jury found Mottaghian guilty as 

charged on all counts regarding Kelsey—two counts of object 

rape and one count of forcible sexual abuse—and on the forcible

sexual abuse count involving Caroline. On the other four counts, 

the jury found Mottaghian guilty of lesser-included offenses: 

sexual battery (instead of object rape) on the two other counts 

involving Caroline, and attempted sexual battery (instead of 

attempted object rape) on the two counts involving the 

undercover officer. The court later sentenced Mottaghian to 

prison on all counts, with the sentences on the two object rape 

counts to run concurrently, but the sentences on all other counts 

to run consecutively to the object rape counts.

ISSUES AND STANDARDS OF REVIEW

¶32 Mottaghian now appeals and presents two main issues. 

First, he argues that the State presented insufficient evidence, in 

various particulars, to support a conviction on any of the counts 

charged. As part of this argument, he asserts that the trial court 

erred when it denied his motions for a directed verdict. “We 

review a trial court’s ruling on a motion for directed verdict for 

correctness.” State v. Carrick, 2020 UT App 18, ¶ 22, 458 P.3d 1167 

(quotation simplified). “In reviewing the denial of a motion for 

directed verdict based on a claim of insufficiency of the 
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20200199-CA 15 2022 UT App 8

evidence, we will uphold the trial court’s decision if, upon 

reviewing the evidence and all inferences that can be reasonably 

drawn from it, we conclude that some evidence exists from 

which a reasonable jury could find that the elements of the crime 

had been proven beyond a reasonable doubt.” Id. (quotation 

simplified).

¶33 Second, Mottaghian asserts that his trial attorneys, in 

various ways, rendered ineffective assistance. “When a claim of 

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and we must 

decide whether the defendant was deprived of the effective 

assistance of counsel as a matter of law.” State v. Beckering, 2015 

UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).

ANALYSIS

I

¶34 Mottaghian argues that the State presented insufficient 

evidence to support his convictions on all counts, and claims that 

the trial court erred—in two main ways—when it denied his 

various motions for a directed verdict. First, with regard to the 

six counts relating to Caroline and Kelsey, Mottaghian asserts 

that the State failed to establish a lack of consent beyond a 

reasonable doubt. Second, with regard to the two counts relating 

to the undercover officer, he asserts that he did not take a 

“substantial step” toward commission of the crime, as required 

by the attempt statute. We address these arguments in turn. 

A

¶35 Mottaghian first argues that the State presented 

insufficient evidence to support a determination that Kelsey and 

Caroline did not consent to Mottaghian’s various penetrations 

and touches. Specifically, Mottaghian argues that, because both 

Kelsey and Caroline knew that vaginal and anal measurements
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20200199-CA 16 2022 UT App 8

were to be taken as part of the “research,” they consented to all 

of Mottaghian’s actions, and that no reasonable jury could have 

concluded otherwise. We disagree. 

¶36 The governing statute regarding consent provides that a 

sexual act “is without consent of the victim under any of the 

following circumstances,” and then lists twelve specific 

situations, including instances where “the victim expresses lack 

of consent through words or conduct,” where “the actor 

overcomes the victim through . . . physical force or violence,” 

and where “the victim is younger than 14 years of age.” See Utah 

Code Ann. § 76-5-406(1), (2), (9) (LexisNexis 2017).4 Some of the 

listed circumstances describe situations in which deceptive 

conduct on the part of the actor may be at issue.5 See id. § 76-5-

 

4. Because the incidents giving rise to this case occurred in 2017, 

we cite the statute then in effect. The statute has since been 

amended, but not in any way material to this case. 

5. One important piece of the State’s theory at trial was that 

Mottaghian had, through misrepresentations and false 

statements, deceived Kelsey and Caroline into participating in 

the activity, and that had Kelsey and Caroline known the truth 

about Mottaghian’s purposes and business situation, they would 

not have agreed to participate. Mottaghian attacks this theory on 

appeal, referring to it as a “fraud-in-the-inducement” theory of 

nonconsent and asserting that such a theory “is not cognizable as 

a matter of law.” Mottaghian posits that puffery is common on 

the dating scene, and that people—in an effort to initiate sexual 

relationships—often “exaggerate[] how much money [they] 

make, or pretend[] to be interested in a long-term relationship,” 

and argues that a person who falls for such puffery cannot 

reasonably later claim rape due to nonconsent. But “consent . . . 

is a fact-intensive, context-dependent question, decided on a 

case-by-case basis.” State v. Barela, 2015 UT 22, ¶ 39, 349 P.3d 676. 

Whether, and to what extent, the actor deceived the victim into 

participation in sexual acts is one factor a factfinder may 

(continued...)
State v. Mottaghian

20200199-CA 17 2022 UT App 8

406(7) (stating that consent is not present when “the actor knows 

that the victim submits or participates because the victim 

erroneously believes that the actor is the victim’s spouse”). 

Indeed, one of the circumstances describes situations in which

the actor is a health professional or religious 

counselor, . . . the act is committed under the guise 

of providing professional diagnosis, counseling, or 

treatment, and at the time of the act the victim 

reasonably believed that the act was for medically 

or professionally appropriate diagnosis, 

counseling, or treatment to the extent that 

resistance by the victim could not reasonably be 

expected to have been manifested. 

Id. § 76-5-406(12). Under the statute, “health professional” was 

defined as “an individual who is licensed or who holds himself 

or herself out to be licensed” as a medical professional. See id. 

§ 76-5-406(12)(a).

 

(...continued)

consider in determining whether, under the totality of the 

circumstances, consent was present. Indeed, two of the twelve 

scenarios listed in the statute describe situations that may

involve deceptive practices. See Utah Code Ann. § 76-5-406(7), 

(12) (LexisNexis 2017). We therefore reject Mottaghian’s 

contention that a “fraud-in-the-inducement” theory of 

nonconsent is never cognizable, although we recognize that 

there may be cases in which an actor’s misrepresentations are 

not significant enough to constitute the sort of deception that 

would vitiate consent. In this case, as discussed herein, 

Mottaghian’s misrepresentations and deceptions were 

significant enough such that a reasonable jury could have 

determined that neither Kelsey nor Caroline consented to 

Mottaghian’s behavior. 
State v. Mottaghian

20200199-CA 18 2022 UT App 8

¶37 This statute, though, does not purport to comprehensively 

“define nonconsent.” State v. Barela, 2015 UT 22, ¶ 38, 349 P.3d 

676; see also id. ¶ 40 (“The statute nowhere prescribes any 

definition of nonconsent.”). Instead, it “merely limits the various 

theories of consent that might otherwise be available” by 

preventing “the factfinder from deeming sex to be consensual in 

circumstances deemed substantively out of bounds as a matter 

of public policy.” Id. ¶ 38 (quotation simplified). The reason the 

statute does not comprehensively define nonconsent is because

consent, as a general rule, “is a fact-intensive, context-dependent 

question,” to be “decided on a case-by-case basis.” Id. ¶ 39. Thus,

to determine whether a victim has truly consented, 

the factfinder must pay close attention to the verbal 

and nonverbal cues given by the victim and to a 

wide range of other elements of context. These and 

other contextual nuances are the reason why, as a 

general rule, our law has long left the matter of 

consent in the hands of the jury. 

Id. (quotation simplified); see also State v. Thompson, 2014 UT App 

14, ¶ 90, 318 P.3d 1221 (stating that, in deciding whether consent 

was present during a particular incident, a jury is free to 

“consider whether the totality of the evidence supports a finding 

of lack of consent under its common, ordinary meaning”). The 

consent statute is therefore “best understood as prescribing 

exceptions to the general rule”—that consent is a fact-intensive 

question to be decided on the circumstances of each case—and 

“deeming certain circumstances beyond the case-by-case 

discretion of the factfinder.” Barela, 2015 UT 22, ¶ 40. Indeed, we 

have stated that the consent statute “sets out a list of 

circumstances under which there is deemed to be no consent to 

sexual activity as a matter of law but does not preclude the factfinder from determining that circumstances outside those 

defined in the statute may still amount to lack of consent in any 

particular case.” Thompson, 2014 UT App 14, ¶ 90 (quotation 

simplified). 
State v. Mottaghian

20200199-CA 19 2022 UT App 8

¶38 Utah’s model jury instruction on this topic encapsulates 

these concepts. It states that “alleged sexual conduct is without 

consent . . . under any, all, or a combination of the following 

circumstances,” and then lists the twelve situations enumerated 

in the statute. See Model Utah Jury Instructions 2d CR1615. After 

setting forth each of the twelve statutory situations, the model 

instruction ends by stating as follows: “In deciding lack of 

consent, you are not limited to the circumstances listed above.

You may also apply the common, ordinary meaning of consent 

to all of the facts and circumstances of this case.” Id.

¶39 The consent instruction that the trial court gave to the jury 

in this case was very similar to the model instruction. The trial 

court reviewed the case law, and indicated that it wanted to give 

a consent instruction informing jurors that “they can use any 

other common, ordinary meaning that they believe establishes 

lack of consent.” Defense counsel assured the court that the 

model instruction already contained that admonition, and that 

Mottaghian was asking the court to give a consent instruction 

that was similar to the model instruction. The court then gave 

the requested instruction, and Mottaghian makes no argument, 

here on appeal, that the instruction was inaccurate or improper. 

¶40 In that instruction, the court stated that the State bore the 

burden of proving, beyond a reasonable doubt, that Kelsey and 

Caroline “did not consent to the alleged sexual conduct.” The 

instruction then listed six of the twelve circumstances set forth in 

the consent statute, including the scenario involving a deceptive 

health professional, and stated that those were “examples of lack 

of consent.” The court also instructed the jury that it could find 

“lack of consent” in “[a]ny other circumstances where you find a 

lack of consent when considering the common, ordinary 

meaning of consent.”

¶41 In evaluating Mottaghian’s sufficiency-of-the-evidence 

challenge, we must keep these legal principles in mind. The 

question is not necessarily whether the facts of this case fit 

within one of the twelve scenarios enumerated in the consent 
State v. Mottaghian

20200199-CA 20 2022 UT App 8

statute. Of course, if the facts do fit one of those scenarios, then 

consent is not present. But even if the facts do not perfectly fit 

any of the listed scenarios, a jury may still potentially find, after 

considering all the evidence, that consent was not present. The 

overarching question is “whether the totality of the evidence 

supports a finding of lack of consent under its common, 

ordinary meaning.” See Thompson, 2014 UT App 14, ¶ 90. 

¶42 Here, the State presented evidence at trial sufficient to 

create a question for the jury on the issue of nonconsent. In the 

advertisement, Mottaghian solicited volunteers to participate in

“paid anatomy research” for the development of “medical 

devices.” He was, however, not involved in any attempt to 

develop medical devices. When Kelsey inquired about who 

would be performing the procedure, Mottaghian falsely told her 

that “[t]he owner of the company” who “is the engineer and 

doctor” would be the one doing so. He also gave the misleading

impression that he worked for a legitimate research company, 

and falsely told Kelsey that the large company he worked for 

had its headquarters, as well as a warehouse, in another state.

And in explaining the procedure, Mottaghian told Kelsey and 

Caroline, respectively (and falsely), that he was “developing a 

catheter to be used on patients during surgeries” and that the 

research he was conducting was for the production of tampons 

and catheters. Both Kelsey and Caroline testified that they would 

not have participated in the research had they known it was for 

the development of sex toys.6

 

6. In addition to asserting that the State failed to prove 

nonconsent, Mottaghian also argues—for the first time on 

appeal—that the State failed to prove that he “acted with the 

required mental state” regarding consent. Recognizing that this 

argument is unpreserved, Mottaghian asks us to review this 

issue through the lens of plain error and ineffective assistance of 

counsel. In particular, he asserts that his trial attorneys were 

ineffective for not moving for a directed verdict on this issue, 

(continued...)
State v. Mottaghian

20200199-CA 21 2022 UT App 8

¶43 This evidence was sufficient to create a jury question 

regarding both (a) whether the “deceptive health professional” 

scenario listed in the consent statute applied here, and (b) 

whether, even if none of the scenarios applied perfectly, under 

the totality of the circumstances Kelsey and Caroline consented 

to the sexual activity. A reasonable jury, after hearing the 

evidence presented, could have concluded that Mottaghian was 

falsely holding himself out as a “health professional” and that 

this activity occurred “under the guise of providing professional 

 

(...continued)

and that the trial court committed plain error by submitting the 

case to the jury on this issue. We find both of these arguments 

unpersuasive. For the reasons just stated, the State presented 

sufficient evidence of nonconsent, including testimony 

indicating that Mottaghian deceived Caroline and Kelsey into 

participating in the research and that he knew he was being 

dishonest in his explanation of what he was doing and why. 

That same evidence was also sufficient to allow a reasonable jury 

to conclude that Mottaghian was at least reckless about whether 

Kelsey and Caroline actually consented. See Utah Code Ann. 

§ 76-5-402.2 (LexisNexis 2017) (listing no mens rea for 

nonconsent as to the crime of object rape); id. § 76-5-404 (listing 

no mens rea for nonconsent as to the crime of forcible sexual 

abuse); id. § 76-2-102 (stating that “when the definition of the 

offense does not specify a culpable mental state and the offense 

does not involve strict liability, intent, knowledge, or 

recklessness shall suffice to establish criminal responsibility”). 

Thus, any motion for a directed verdict on that point would have 

been futile, and therefore counsel did not render ineffective 

assistance by electing not to bring such a motion. See State v. 

Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (“The failure of counsel to 

make motions that would be futile if raised does not constitute 

ineffective assistance.” (quotation simplified)). And for similar 

reasons, the trial court did not commit any error—let alone an 

obvious one—by failing to direct a verdict on that point. 
State v. Mottaghian

20200199-CA 22 2022 UT App 8

diagnosis, counseling, or treatment.” See Utah Code Ann. § 76-5-

406(12) (LexisNexis 2017). But even if the jurors found that 

particular example of nonconsent to be inapplicable, they could 

reasonably have determined, in this situation, that neither Kelsey 

nor Caroline consented to the activity under the “common, 

ordinary meaning” of consent. See Thompson, 2014 UT App 14, 

¶ 90. In this situation, the trial court did not err when it denied 

Mottaghian’s motion for a directed verdict on Counts 1–6. 

B

¶44 Mottaghian next argues that—with respect to the counts 

involving the undercover officer—the State presented 

insufficient evidence to prove that he took a “substantial step” 

toward committing the crime of attempted sexual battery, and 

that the trial court therefore erred when it denied his motion for 

a directed verdict on those counts. We disagree. 

¶45 A person commits the crime of sexual battery “if the 

person . . . intentionally touches, whether or not through 

clothing, the anus, buttocks, or any part of the genitals of another 

person, or the breast of a female person, and the actor’s conduct 

is under circumstances the actor knows or should know will 

likely cause affront or alarm to the person touched.” Utah Code 

Ann. § 76-9-702.1(1) (LexisNexis 2017). And a person is guilty of 

“an attempt to commit a crime” when that person “intends to 

commit the crime” and “engages in conduct constituting a 

substantial step toward commission of the crime.” Id. § 76-4-

101(1)(a), (1)(b)(i). Thus, to obtain a conviction on the charge of 

attempted sexual battery, the State had to prove beyond a 

reasonable doubt that Mottaghian intended to “touch . . . the 

anus, buttocks, or any part of the genitals” of the undercover 

officer, that such conduct would “likely cause affront or alarm” 

to the officer, and that Mottaghian “engage[d] in conduct 

constituting a substantial step” toward commission of that 

crime. Mottaghian’s directed verdict motion was limited to the 

third item in that list: he asserted that the State failed to 
State v. Mottaghian

20200199-CA 23 2022 UT App 8

adequately prove that he took a “substantial step” toward 

commission of the crime. 

¶46 Our legislature has explained that “conduct constitutes a 

substantial step if it strongly corroborates the actor’s mental 

state.” Id. § 76-4-101(2). Our supreme court, interpreting this 

statute, has explained that a substantial step requires “significant 

conduct” in the form of an “overt act.” State v. Arave, 2011 UT 84, 

¶ 30, 268 P.3d 163 (quotation simplified). That act must be 

“something more than mere preparation”; it must be “a tangible 

step toward commission of a crime that transcends intent, yet 

fails to culminate in its planned accomplishment.” Id. (quotation 

simplified); see also State v. Hoffman, 2021 UT App 143, ¶ 20. 

¶47 Here, the undercover officer told Mottaghian that she was 

interested in participating in the same medical research 

procedures that Kelsey had participated in—procedures that by 

definition included taking “measurements” of her anus and 

vagina. Mottaghian scheduled an appointment for her to 

participate in those procedures. When she arrived at the 

appointment, Mottaghian explained the procedures to her, 

stating that he would be taking measurements of her anus and 

vagina and that he would be using “surgical lubricant” as part of 

the process. The officer then asked Mottaghian if he was the 

doctor or if someone else would be coming in to perform the 

procedure, to which Mottaghian replied, “Just me.” Shortly 

thereafter, Mottaghian handed the undercover officer a 

nondisclosure agreement to sign, and the officer stated, “All 

right. Let’s do this.” At that point, the process was interrupted 

by other police officers waiting outside the door. 

¶48 In our view, these actions easily qualify as a “substantial 

step” toward commission of the relevant crime. Mottaghian’s 

actions were significant, and constitute more than mere

solicitation or preparation. A person who posts an 

advertisement, schedules an appointment, explains to the person 

that he is about to penetrate her anus and vagina and take 

measurements, and hands her a nondisclosure agreement to sign
State v. Mottaghian

20200199-CA 24 2022 UT App 8

has taken tangible overt actions that strongly indicate intent to 

commit the crime. Mottaghian was ready and prepared to begin 

the procedure when the officer said, “Let’s do this.” Indeed, at 

that point, it was only a question of whether the officer was 

going to actually disrobe and allow him to take the 

measurements. Mottaghian was interrupted only by the 

intrusion from the other police officers. These actions clearly 

indicate an intent to commit the crime of sexual battery and 

constitute a “tangible step toward commission” of that crime. See 

Arave, 2011 UT 84, ¶ 30.

¶49 Thus, the State presented sufficient evidence from which

a jury could find, beyond a reasonable doubt, that Mottaghian 

took a substantial step toward commission of the charged 

attempt crimes. Accordingly, the trial court did not err by 

denying Mottaghian’s motion for a directed verdict on those 

counts. 

II

¶50 Next, Mottaghian argues that his trial attorneys rendered 

constitutionally ineffective assistance. To establish that his 

attorneys were ineffective, Mottaghian must show both (1) that 

his attorneys’ performance was deficient, in that it “fell below an 

objective standard of reasonableness,” and (2) that this deficient 

performance “prejudiced the defense” such that “there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord 

State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT 

12, ¶ 24, 469 P.3d 871. “A defendant must satisfy both parts of 

this test in order to successfully establish ineffective assistance.”

State v. Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150. Thus, “it 

is unnecessary for a court to address both components of the 

inquiry if we determine that a defendant has made an 

insufficient showing on one.” Id. (quotation simplified). 
State v. Mottaghian

20200199-CA 25 2022 UT App 8

¶51 The first part of the test requires Mottaghian to show that 

his attorneys’ performance “fell below an objective standard of 

reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified). 

In evaluating the reasonableness of counsel’s actions, courts will 

often look to whether the actions counsel took were motivated 

by trial strategy. See id. ¶ 35 (“[T]he performance inquiry will 

often include an analysis of whether there could have been a 

sound strategic reason for counsel’s actions.”). And while “the 

ultimate question is not whether there was a possible strategic 

reason for counsel’s conduct, but instead whether that conduct 

was objectively reasonable,” see id., “[i]f it appears counsel’s 

actions could have been intended to further a reasonable 

strategy, a defendant has necessarily failed to show 

unreasonable performance,” Ray, 2020 UT 12, ¶ 34.

¶52 If Mottaghian establishes that his trial attorneys rendered 

deficient performance, he must next show that he was 

prejudiced by that performance. “Prejudice exists when there is a 

reasonable probability that the case would have had a different 

outcome had trial counsel not performed deficiently.” Whytock, 

2020 UT App 107, ¶ 28. “[A] reasonable probability is a 

probability sufficient to undermine confidence in the outcome” 

of the proceeding. Strickland, 466 U.S. at 694. And in assessing 

whether this standard is met, we “consider the totality of the 

evidence before the judge or jury and then ask if the defendant 

has met the burden of showing that the decision reached would 

reasonably likely have been different absent the errors.” State v. 

Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 (quotation simplified). A 

defendant attempting to show that there was a “reasonable 

probability of a different outcome” faces “a relatively high 

hurdle to overcome.” Id. ¶ 44. 

¶53 In the present case, Mottaghian asserts that his trial 

attorneys rendered ineffective assistance in three distinct ways. 

First, he argues that his attorneys were ineffective by failing to 

object to the absence of a specific instruction regarding jury 

unanimity. Second, he argues that his attorneys were ineffective 

for failing to ascertain the State’s theory of nonconsent prior to 
State v. Mottaghian

20200199-CA 26 2022 UT App 8

trial. And third, he argues that his attorneys were ineffective for 

failing to renew a motion for a mistrial based on alleged 

discovery violations made by the State. We address each of 

Mottaghian’s arguments, in turn. 

A

¶54 In his first ineffective assistance claim, Mottaghian raises

a jury unanimity issue. In particular, Mottaghian argues that,

because the State chose to charge him with only eight crimes but 

put on evidence of some fifty-eight different touches or 

penetrations, it was potentially unclear which touch or 

penetration supported each count. Mottaghian correctly points 

out that the jury was not given a specific (as opposed to a 

general) unanimity instruction, and asserts that it is therefore 

unknown whether all the jurors unanimously agreed to convict 

Mottaghian for the same actions. He therefore asserts that his 

attorneys rendered ineffective assistance by not requesting a 

specific unanimity instruction.7

¶55 Our state constitution provides that “[i]n criminal cases 

the verdict shall be unanimous.” Utah Const. art. I, § 10. “At its 

 

7. Because Mottaghian’s attorneys did not ask the trial court to 

give a specific unanimity instruction, this issue is not preserved 

for appellate review, and Mottaghian invites us to consider it 

through the lens of both plain error and ineffective assistance of 

counsel. Because the prejudice analysis is the same for plain 

error as it is for ineffective assistance of counsel, our conclusion 

(discussed in text, infra ¶¶ 59–72) that Mottaghian cannot 

demonstrate prejudice for the purposes of his ineffective 

assistance claim also means that Mottaghian cannot demonstrate 

prejudice for the purposes of his plain error claim. See, e.g., State 

v. Martinez, 2021 UT App 11, ¶¶ 44–46, 480 P.3d 1103 (stating 

that “plain error and ineffective assistance of counsel share a 

common standard of prejudice,” and concluding that, where 

prejudice is lacking, both claims fail (quotation simplified)).
State v. Mottaghian

20200199-CA 27 2022 UT App 8

most basic level, this provision requires the full concurrence of 

all empaneled jurors on their judgment as to the criminal charges 

submitted for their consideration.” State v. Hummel, 2017 UT 19, 

¶ 25, 393 P.3d 314. Additionally, it is “well-established” that our 

constitutional unanimity requirement “‘is not met if a jury 

unanimously finds only that a defendant is guilty of a crime.’” 

See id. ¶¶ 26, 30 (emphasis omitted) (quoting State v. Saunders, 

1999 UT 59, ¶ 60, 992 P.2d 951). Our constitution “requires 

unanimity as to each count of each distinct crime charged by the 

prosecution and submitted to the jury for decision.” Id. ¶ 26 

(emphasis omitted). Indeed, “a generic ‘guilty’ verdict that does 

not differentiate among various charges would fall short,” as 

would “a verdict of ‘guilty of some crime.’” Id. ¶¶ 26–27. For 

example, 

a verdict would not “be valid if some jurors found 

a defendant guilty of robbery committed on 

December 25, 1990, in Salt Lake City, but other 

jurors found him guilty of a robbery committed 

January 15, 1991, in Denver, Colorado, even 

though all jurors found him guilty of the elements 

of the crime of robbery.”

Id. ¶ 28 (quoting Saunders, 1999 UT 59, ¶ 60). “These are distinct 

counts or separate instances of the crime of robbery, which 

would have to be charged as such.” Id.

¶56 In State v. Alires, 2019 UT App 206, 455 P.3d 636, this court

held that a jury verdict violated constitutional unanimity 

principles where a defendant was charged with “six identicallyworded counts” of sexual abuse, the counts were not 

distinguished by act or by alleged victim, the victims described 

more than six acts that could have qualified as abuse, and the 

jury convicted the defendant on only two counts. See id. ¶¶ 22–

23. In that situation, “the jurors could have completely disagreed 

on which acts occurred or which acts were illegal,” even if they 

all agreed that abuse had occurred at some point. Id. ¶ 23.
State v. Mottaghian

20200199-CA 28 2022 UT App 8

¶57 In this case, while the trial court instructed the jurors that 

their “verdict must be unanimous,” the jurors were not 

specifically instructed that they had to agree on each element of 

each count, including the specific criminal act—here, the specific 

touch or penetration—that formed the basis for each conviction. 

We agree with Mottaghian that this was problematic, and that 

under the law as it existed at the time of trial, the jury 

instructions were deficient in this respect.8

¶58 This problem could have been alleviated, however, if the 

State had identified for the jury—in closing argument, for 

instance—“which act supported each charge.” See id. ¶ 22; see 

 

8. In its brief, the State points out that Alires was issued three 

days after the trial in this case ended, and asserts that, until 

Alires, there was no clear requirement that the jury had to be 

unanimous as to which specific act supported each count, and 

that at the time of trial “the only clear requirement about the 

content of unanimity instructions was that the jury had to be 

instructed that its verdict had to be unanimous.” We disagree, 

and note our supreme court’s discussion in State v. Hummel, 

where the court concluded that the principles discussed above, 

see supra ¶ 55, were “well-established in our law.” See 2017 UT 

19, ¶ 30, 393 P.3d 314; see also State v. Evans, 2001 UT 22, ¶ 17, 20 

P.3d 888 (referring to the court’s holding in State v. Saunders as a 

“majority” view). In Alires, we were not plowing entirely new 

ground. Even before that case came out, both counsel and the 

trial court should have been aware of Hummel and other jury 

unanimity case precedents. See State v. Baugh, 2022 UT App 3, 

¶ 14 n.3 (stating that, even though Alires was not published 

“until a few days after” the relevant trial, “if the law was well 

enough established at the time Alires was tried, such that the 

Alires court could determine that counsel there performed 

deficiently in failing to request a proper unanimity instruction, 

the law was also well enough established that defense counsel 

here should have recognized the need to request appropriate 

unanimity instructions”). 
State v. Mottaghian

20200199-CA 29 2022 UT App 8

also State v. Santos-Vega, 321 P.3d 1, 18 (Kan. 2014) (stating that, to 

remedy a jury unanimity problem, “either the State must have 

informed the jury which act to rely upon for each charge . . . or 

the [trial] court must have instructed the jury to agree on the 

specific criminal act for each charge”), quoted with approval in

Alires, 2019 UT App 206, ¶ 22; State v. Paule, 2021 UT App 120, 

¶ 48 (holding that prosecutors had taken steps “to obviate any 

jury unanimity problem” when they “clearly identified for the 

jury which factual circumstance formed the basis for [the]

obstruction of justice charge”), petition for cert. filed, Jan. 10, 2022 

(No. 20220039). But the State did not take any such steps in this 

case. Thus, the deficiency that existed with the jury instructions

went unaddressed, and was not resolved through any action 

taken by the State. 

¶59 But even assuming, for purposes of our analysis, that 

Mottaghian’s attorneys performed deficiently by failing to object 

to the absence of a specific unanimity instruction, Mottaghian’s 

ineffective assistance claim can succeed only if he can 

demonstrate that the problem with the jury instructions 

mattered: that is, that there existed a reasonable probability of a 

different outcome had the jury been provided a specific 

unanimity instruction. And on that score, we agree with the 

State’s position that Mottaghian has failed to demonstrate 

prejudice. 

¶60 In support of his argument that the absence of a specific 

unanimity instruction prejudiced him, Mottaghian asserts that 

“the sheer number of touches at issue and other surrounding 

circumstances make it likely that different jurors could easily 

reach different conclusions as to which acts were done in 

conjunction with the other requisite elements of the charged 

offenses.” In particular, Mottaghian argues that specificity—

especially as to which act supported each charge for Kelsey and 

Caroline—was important here because, even assuming that the 

two women initially had not consented to Mottaghian’s actions, 

there was a distinguishing point during each woman’s 

appointment where she apparently realized that Mottaghian 
State v. Mottaghian

20200199-CA 30 2022 UT App 8

may not be what he claimed to be but nevertheless made a 

conscious choice to continue with the procedure. For Kelsey, 

Mottaghian claims this point occurred after she told him that 

“this feels a little bit sexual in nature” and came to the 

realization that the appointment was “no longer” for research, 

but still chose to continue. For Caroline, Mottaghian asserts that

this point occurred when she left the room to use the restroom 

but then returned to finish the appointment. We acknowledge 

Mottaghian’s point that there could conceivably be a difference, 

when it comes to consent, between the touches and penetrations

that occurred prior to these realization points and the touches

and penetrations that occurred after. But we remain 

unpersuaded by Mottaghian’s overall prejudice argument, for 

several reasons. 

¶61 First, the testimony regarding whether, when, and how

the touches and penetrations occurred, as recounted by Kelsey 

and Caroline, went uncontested by any other witness. Indeed, 

Mottaghian defended the case not by asserting that some or all 

of the touches did not occur but, instead, by asserting that all of 

them were consensual. Mottaghian acknowledges, in his brief, 

that Kelsey and Caroline each testified to many anal and vaginal 

penetrations, and many clitoral touches, prior to any realization 

that Mottaghian’s operation might not be legitimate. Thus, in 

terms of actus reus, there can be no question, on this record, that 

Mottaghian committed more touches prior to any point of 

realization than there were charges against him. 

¶62 Second, the facts of this case—at least with regard to 

whether Mottaghian was prejudiced by the lack of a specific jury 

unanimity instruction—are more like State v. Percival, 2020 UT 

App 75, 464 P.3d 1184, and State v. Case, 2020 UT App 81, 467 

P.3d 893, than they are like Alires and State v. Baugh, 2022 UT 

App 3. In Percival, the defendant was involved in an altercation 

at a party that resulted in the stabbing of four victims. See 2020 

UT App 75, ¶¶ 2–11. Eventually, the defendant was charged 

with one count of attempted murder (for the most serious 

injuries sustained by one of the victims) and one count—and not 
State v. Mottaghian

20200199-CA 31 2022 UT App 8

three—of aggravated assault (for the stab wounds inflicted on 

the remaining three victims). Id. ¶ 14. At the close of the 

evidence, the trial court instructed jurors that they could find the 

defendant guilty on the single aggravated assault charge only if 

they found, among other things, that the defendant had “caused 

bodily injury to [victim 2] OR [victim 3] OR [victim 4].” Id. ¶ 17. 

The defendant was found guilty and appealed his assault 

conviction, arguing that the jury may not have been unanimous 

regarding which victim formed the basis for the aggravated 

assault verdict. Id. ¶ 24. On appeal, we noted that “the evidence 

overwhelmingly established that [the three assault victims] were 

all stabbed during the fracas and that [the defendant] was the 

sole person wielding a knife,” and that on this record there 

existed “no reasonable likelihood that the jury would not have 

agreed on any one victim on” the assault charge. Id. ¶ 29. Thus, 

we ultimately concluded that, “[b]ecause of the overwhelming 

evidence that [the defendant] stabbed [all three victims], it is 

unlikely that the jury would have acquitted [the defendant] on 

[the assault charge] had it been asked to agree on a single 

victim,” and that therefore the defendant had not been 

prejudiced by the lack of further guidance on the assault charge. 

Id. ¶¶ 33–34. 

¶63 In Case, police investigators discovered thirty-seven 

images of child pornography on the defendant’s computers, but 

charged him with only seven counts of sexual exploitation of a 

minor. See 2020 UT App 81, ¶ 5. The defendant did not contest 

the State’s assertion that all thirty-seven images constituted child 

pornography. Id. ¶¶ 10–13. At trial, the court did not instruct the 

jury that it had to unanimously agree on which pictures formed 

the basis for each count. Id. ¶ 22. Thus, “the jury was left with 

the task to identify and unanimously agree on seven specific acts 

of sexual exploitation of a minor from among the thirty-seven 

images that were identified as child pornography.” Id. After 

being convicted on all seven counts, the defendant appealed, 

arguing that the trial court committed plain error by not giving a 

specific unanimity instruction. Id. ¶ 21. On appeal, we noted that 
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20200199-CA 32 2022 UT App 8

[e]ven if the jurors had been instructed that they 

each had to agree on which seven images satisfied 

each specific count set forth in the amended 

information, because the jury found that the State 

had proved beyond a reasonable doubt that [the 

defendant] possessed and viewed child 

pornography, there is little doubt the jury would 

have selected the seven most sexually graphic 

depictions of child pornography among the thirtyseven that were admitted into evidence . . . 

resulting in the same seven convictions for [the 

defendant]. 

Id. ¶ 26. Thus, we ultimately concluded that the defendant had 

“not shown a reasonable likelihood of a different result at trial 

even though the court erred in instructing the jury as to 

unanimity.” Id. 

¶64 The situation was different, however, in Alires and Baugh.

In Alires, as already noted, there were two different victims, and 

several different touches—more than six in total—were 

perpetrated on each victim, even though the defendant was 

charged with only six counts. See 2019 UT App 206, ¶¶ 22–23.

The defendant testified at trial and denied any inappropriate 

touches, and was ultimately convicted on only two of the “six 

identically-worded counts.” Id. Under those circumstances, 

concerns about jury unanimity were heightened because it was 

unclear which two touches the jury had found occurred, or even 

whether all the jurors had agreed on any particular touch. Id.

¶ 23. We stated that, on that record, it was possible for the jurors 

to have “completely disagreed on which acts occurred or which 

acts were illegal,” and was therefore possible that the jury had 

rendered a non-unanimous verdict. Id.

¶65 In Baugh, the defendant was charged “with two counts of 

aggravated sexual abuse of a child: one count for abuse that 

allegedly occurred in 2012 and one count for abuse that allegedly 
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20200199-CA 33 2022 UT App 8

occurred in 2014.” See 2022 UT App 3, ¶ 6. At trial, the defendant 

testified and maintained that no abuse had occurred at all, and 

was ultimately acquitted on the abuse count from 2012, but was 

convicted on the abuse count from 2014. See id. ¶¶ 7, 10. On 

appeal, we noted that because the victim testified to three 

instances of abuse—two that occurred at a family house and one 

that occurred at an apartment—and because the defendant lived 

at both the family house and the apartment in 2014, “we cannot 

know if the jury agreed that the conviction for count two, the 

2014 count, was for one of the two alleged acts of abuse in the 

family house or the alleged act of abuse in the apartment.” Id. 

¶ 21. We therefore concluded that the defendant’s trial counsel 

had performed deficiently by failing to request a specific 

unanimity instruction stating that the jury had to agree on a 

specific instance of abuse for each count. Id. ¶¶ 13–19. We also 

concluded that this deficient performance prejudiced the 

defendant because “under these circumstances our confidence in 

the outcome [had] been undermined.” Id. ¶ 26. 

¶66 In our view, the present circumstances are more similar to 

Percival and Case than they are to Alires and Baugh. Taken 

together, these cases support the proposition that, when the 

defendant does not dispute that the relevant acts (e.g., stabbings, 

or the existence of child pornography on a computer) occurred, 

and there is no meaningful and relevant basis upon which to 

distinguish the various acts underlying the charges, the absence 

of a jury unanimity instruction ultimately does not prejudice the

defendant because the jury would have had no difficulty in 

unanimously agreeing that any one of the relevant criminal acts

supported the charges. And on the facts of this case, there are 

enough uncontested pre-realization touches to satisfy all of the 

charged counts, and there is no meaningful consent-related basis 

to distinguish between those touches; at a minimum, Mottaghian 

offers no basis upon which a juror might have considered some 

of the pre-realization touches consensual and others not. Under 

these circumstances, we do not perceive a reasonable probability 

that the jury would have reached a different result had it been 

specifically instructed that all jurors needed to agree on the 
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20200199-CA 34 2022 UT App 8

specific act underlying each count. To illustrate, we engage in a 

count-by-count analysis. 

¶67 Counts 1-3: Kelsey. Mottaghian was charged with three 

counts related to Kelsey: two counts of object rape (potentially,

one for anal penetration and one for vaginal penetration, 

although the State never expressly argued it this way) and one 

count of forcible sexual abuse (apparently, for a non-penetrative 

touch). For the object rape counts, the State had to prove beyond 

a reasonable doubt that, among other things, Mottaghian—

without Kelsey’s consent—caused “the penetration . . . of 

[Kelsey’s] genital or anal opening . . . by any foreign object, 

substance, instrument, or device, . . . with the intent to arouse or 

gratify the sexual desire of any person.” See Utah Code Ann. 

§ 76-5-402.2 (LexisNexis 2017). And the State had to prove that at 

least two penetrations (whether anal or vaginal) satisfied the 

elements of this crime. For the forcible sexual abuse count, the 

State had to prove that Mottaghian—without Kelsey’s consent—

touched her “anus, buttocks or any part of [her] genitals . . . with 

the intent to arouse or gratify the sexual desire of any 

person.” Id. § 76-5-404. By Mottaghian’s own count (as set forth 

in his briefing), Kelsey testified that Mottaghian committed at 

least fifteen vaginal penetrations, eight anal penetrations, and 

nine genital touches, the majority of which—and at least two of 

each type—occurred prior to any alleged realization point. The 

jury convicted Mottaghian on all three of these counts as 

charged. 

¶68 As already mentioned, no witness testified at trial to 

contradict Kelsey’s account of the touches and penetrations, and 

Mottaghian defended the case not by suggesting that the touches 

and penetrations did not occur but, instead, by suggesting that 

they were consensual. And by its verdict, the jury found that 

Kelsey did not consent to at least two penetrations and at least 

one genital touch. The verdict could, of course, reflect a finding 

that all the touches and penetrations were nonconsensual. But 

even assuming that is not the case, and even taking Mottaghian’s 

argument about the realization point at face value and 
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20200199-CA 35 2022 UT App 8

presuming that the jury believed that the post-realization 

touches were all consensual, the jury must in that event have 

based its verdict on pre-realization touches. And because there 

are more of those touches than there are counts, and because 

there is no meaningful way to distinguish between the various 

pre-realization touches from a consent standpoint, we cannot 

agree with Mottaghian’s argument that there exists a reasonable 

probability of a different result had the jury been given a specific 

unanimity instruction. As in Percival, we perceive no reasonable 

probability that—even with a proper unanimity instruction—the 

jury would have failed to unanimously agree on at least one 

nonconsensual contact of each type to form the basis for these 

three counts. See 2020 UT App 75, ¶¶ 29, 33–34; see also Case, 2020 

UT App 81, ¶ 26. 

¶69 Counts 4-5: Sexual Battery of Caroline. Mottaghian was 

charged with two counts of object rape in relation to Caroline. 

The jury acquitted Mottaghian on these charges and instead 

found him guilty on two counts of the lesser-included offense of 

sexual battery. For that crime, the jury had to find that 

Mottaghian “intentionally touche[d]” Caroline’s “anus, buttocks, 

or any part of [her] genitals,” and that Mottaghian’s “conduct 

[was] under circumstances [he] knows or should know [would]

likely cause affront or alarm” to Caroline. See Utah Code Ann. 

§ 76-9-702.1 (LexisNexis 2017). Notably, nonconsent is not an 

element of this crime. See id. Thus, even assuming that Caroline’s 

mid-procedure visit to the restroom created an issue about her 

consent, the jury apparently resolved any such issue in 

Mottaghian’s favor by acquitting him of the more serious 

charges—the ones that required findings of nonconsent—and 

convicting him of lesser offenses that did not require 

nonconsent. Here, we see no reasonable likelihood that a more 

specific jury unanimity instruction would have resulted in a 

different outcome on these counts. See Percival, 2020 UT App 75, 

¶ 29. 

¶70 Count 6: Forcible Sexual Abuse of Caroline. Mottaghian was 

also charged with one count of forcible sexual abuse in relation 
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20200199-CA 36 2022 UT App 8

to Caroline. For this count, as already mentioned, the State had 

to prove that Mottaghian—without Caroline’s consent—touched 

her “anus, buttocks or any part of [her] genitals . . . with the 

intent to arouse or gratify the sexual desire of any person.” Utah 

Code Ann. § 76-5-404. The jury convicted Mottaghian on this 

count as charged. Our analysis on this count tracks our analysis 

on Count 3, the forcible sexual abuse count against Kelsey. No 

witness testified at trial to contradict Caroline’s account of the 

relevant touches, and Mottaghian defended the case not by 

disputing Caroline’s account of the touches but, instead, by 

asserting that they were consensual. And by its verdict, the jury 

found that Caroline did not consent to at least one nonpenetrative genital touch. Even assuming that the jurors did not 

agree that all the genital touches were nonconsensual, and even 

assuming that Caroline’s restroom visit rendered all postrestroom touches consensual, there are still more pre-restroom 

genital touches than there are counts, and Mottaghian offers us

no meaningful way to distinguish between the various prerestroom touches from a consent standpoint. For these reasons, 

we cannot agree with Mottaghian’s argument that there exists a 

reasonable probability of a different result on this count had the 

jury been given a specific unanimity instruction. See Percival,

2020 UT App 75, ¶ 29.

¶71 Counts 7-8: The Undercover Officer. Mottaghian was 

charged with two counts of attempted object rape in relation to 

the undercover officer. The jury acquitted Mottaghian of 

attempted object rape, but found him guilty, on both counts, of 

the lesser-included offense of attempted sexual battery. For that 

crime, the State had to prove that Mottaghian attempted to

“intentionally touch[]” the undercover officer’s “anus, buttocks, 

or any part of [her] genitals,” and that Mottaghian’s “conduct 

[was] under circumstances [he] knows or should know [would] 

likely cause affront or alarm” to the officer. See Utah Code Ann. 

§ 76-9-702.1. Here, the officer had agreed to undergo the same 

procedure as Kelsey and Caroline, including measurements of 

both the vagina and anus, and was thus going to be measured at 

least once in each location. And because the activity was 
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20200199-CA 37 2022 UT App 8

interrupted by police officers before any actual touching 

occurred, the analysis on these counts does not require us to 

consider whether there are grounds upon which to differentiate 

any touches. By finding Mottaghian guilty of attempted sexual 

battery on these counts, the jury clearly believed that Mottaghian 

was about to touch the officer inappropriately before he was 

interrupted. In this situation, and with regard to these counts, a 

specific unanimity instruction would not have made any 

difference at all, and therefore Mottaghian has not demonstrated 

a reasonable likelihood of a different result had such an 

instruction been given.

¶72 Accordingly, even assuming that Mottaghian’s trial 

attorneys performed deficiently by not requesting a specific jury 

unanimity instruction, Mottaghian’s ineffective assistance claim 

fails for lack of prejudice. On the facts of this case, we perceive 

no reasonable likelihood that Mottaghian would have obtained a 

more favorable result had such an instruction been given. 

B

¶73 In his second ineffective assistance claim, Mottaghian

argues that his trial attorneys rendered ineffective assistance by 

not doing enough to ascertain, at an early enough point in the 

process, the State’s “theory of nonconsent.” Specifically, 

Mottaghian argues that his attorneys’ “missed opportunities and 

subsequent failures to obtain or require notice of the State’s 

nonconsent theory forced [him] to face trial by surprise.” We are 

unpersuaded by this argument. 

¶74 As previously mentioned, “consent—or nonconsent, to 

put it in terms of an element of a crime—is a fact-intensive, 

context-dependent question, decided on a case-by-case basis.” 

State v. Barela, 2015 UT 22, ¶ 39, 349 P.3d 676. In most 

situations, that question is best left “in the hands of the jury.” Id.

Indeed, in deciding whether consent was present during a 

particular incident, a jury is free to “consider whether the 

totality of the evidence supports a finding of lack of consent 
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20200199-CA 38 2022 UT App 8

under its common, ordinary meaning.” State v. Thompson, 2014 

UT App 14, ¶ 90, 318 P.3d 1221. These principles were clearly 

established at the time of Mottaghian’s trial. And Mottaghian 

does not claim that he was unaware of any of the facts 

underlying the State’s theory of the case. The State’s theory, in 

this case, amounted to nothing more or less than this: under the 

specific and rather unique facts presented here, neither Kelsey 

nor Caroline consented to the sexual activity committed by 

Mottaghian. 

¶75 Under these circumstances, we cannot say that it was 

objectively unreasonable for Mottaghian’s trial attorneys to not 

demand further information from the State regarding its theory

of nonconsent. The question of whether consent exists, in any 

given case, is fact-dependent, and Mottaghian was well aware of 

the facts surrounding the incidents in question. See State v. Scott, 

2020 UT 13, ¶ 35, 462 P.3d 350 (stating that “the ultimate 

question” of whether counsel performed deficiently is whether 

counsel’s actions were “objectively reasonable”). 

¶76 And for the same reasons, Mottaghian has not shown that 

his trial attorneys’ failure to ascertain the State’s theory of 

nonconsent prejudiced him. Again, his attorneys were well 

acquainted with the facts surrounding the incidents, and they

knew that the State was arguing that those particular facts did 

not amount to consent. Thus, there was no reasonable 

probability of a more favorable outcome for Mottaghian at trial, 

even if his attorneys had demanded further information, because 

his attorneys already knew what the State’s theory of 

nonconsent was. See State v. Whytock, 2020 UT App 107, ¶ 28, 469 

P.3d 1150 (“Prejudice exists when there is a reasonable 

probability that the case would have had a different outcome 

had trial counsel not performed deficiently.”). Mottaghian has 

thus failed to prove that his attorneys rendered ineffective 

assistance in this regard. 
State v. Mottaghian

20200199-CA 39 2022 UT App 8

C

¶77 In his final ineffective assistance claim, Mottaghian argues 

that his attorneys rendered ineffective assistance by failing to 

renew their motion for a mistrial regarding alleged discovery 

violations—related to text messages between Caroline and the

police—committed by the State.9 We disagree, because 

Mottaghian has not demonstrated that his attorneys performed 

deficiently in this regard. 

¶78 As discussed above, to prove that his attorneys rendered 

ineffective assistance, Mottaghian must first show that their

performance was deficient, in that it “fell below an objective 

standard of reasonableness.” See Strickland v. Washington, 466 

U.S. 668, 687–88 (1984). Importantly, “[i]f it appears counsel’s 

actions could have been intended to further a reasonable 

strategy, a defendant has necessarily failed to show 

unreasonable performance.” State v. Ray, 2020 UT 12, ¶ 34, 469 

P.3d 871. 

¶79 In this instance, Mottaghian’s attorneys had a reasonable 

strategic basis for electing not to renew the motion for a mistrial. 

Indeed, after receiving copies of the text messages on the second 

day of trial and carefully considering the matter, Mottaghian’s 

attorneys decided to “cure [the problem them]selves through the 

 

9. In his brief, Mottaghian initially frames this claim by stating 

that the trial court erred in denying his motion for a mistrial 

based on this issue. But as previously noted, see supra ¶¶ 28–29, 

the court did not deny Mottaghian’s motion for a mistrial 

because Mottaghian’s counsel elected not to renew it after 

receiving copies of the text messages and cross-examining both 

Caroline and the relevant detective about them. Thus, the trial 

court was never given an opportunity to rule on the motion. 

Accordingly, we will therefore review this issue through the lens 

of ineffective assistance of counsel, per Mottaghian’s 

(alternative) request.
State v. Mottaghian

20200199-CA 40 2022 UT App 8

examination process.” And they then proceeded to execute this 

strategy by cross-examining both Caroline and the relevant 

detective regarding the contents of the text messages. This 

strategy appears reasonable to us under the circumstances, and 

we cannot say, on these facts, that it was objectively 

unreasonable for Mottaghian’s trial attorneys to have proceeded

as they did. Thus, Mottaghian has failed to demonstrate that his 

attorneys rendered ineffective assistance with regard to the 

motion for a mistrial. See Whytock, 2020 UT App 107, ¶ 26 

(stating that “[a] defendant must satisfy both parts of [the] test in 

order to successfully establish ineffective assistance” and that it 

is thus “unnecessary for a court to address both components of 

the inquiry if we determine that a defendant has made an 

insufficient showing on one” (quotation simplified)). 

CONCLUSION

¶80 The State presented sufficient evidence to present a jury 

question on all eight of the charged counts. In particular, a 

reasonable jury could find, based on these facts, that Kelsey and 

Caroline did not consent to Mottaghian’s actions, and that 

Mottaghian took a substantial step toward commission of the 

charged attempt crimes. Thus, the trial court did not err when it 

denied Mottaghian’s motions for a directed verdict. And 

Mottaghian has failed to demonstrate that his trial attorneys 

rendered constitutionally ineffective assistance. Accordingly, we 

affirm Mottaghian’s convictions.