2017 UT App 194

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CORY R. PATTERSON,

Appellant.

Opinion

No. 20150791-CA

Filed October 19, 2017

Fourth District Court, Provo Department

The Honorable Derek P. Pullan

No. 141403037

Dustin M. Parmley, Attorney for Appellant

Sean D. Reyes and Tera J. Peterson, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES GREGORY K. ORME and JILL M. POHLMAN

concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Cory R. Patterson challenges his conviction on 

one count of object rape, arguing that the evidence was 

insufficient to support the jury’s verdict. He does not challenge 

his convictions on two counts of forcible sexual abuse, stemming 

from the same incident. We conclude that the evidence adduced 

at trial was sufficient for the jury to find every element of object 

rape, and we therefore affirm. 

¶2 When we review a challenge to the sufficiency of the 

evidence, we review the evidence and all inferences that may 

reasonably be drawn from it in the light most favorable to the 

jury’s verdict. State v. Pullman, 2013 UT App 168, ¶ 4, 306 P.3d 
State v. Patterson

20150791-CA 2 2017 UT App 194

827. We will vacate the conviction only when the evidence, so 

viewed, is sufficiently inconclusive or inherently improbable that 

reasonable minds must have entertained a reasonable doubt that 

the defendant committed the crime. Id.; see also State v. Hamilton, 

827 P.2d 232, 236 (Utah 1992). To conduct this analysis, we first 

review the elements of the relevant statute. We then consider the 

evidence presented to the jury to determine whether evidence of 

every element of the crime was adduced at trial.

¶3 Defendant was charged with object rape. A person is 

guilty of object rape when the person, “without the victim’s 

consent, causes the penetration, however slight, of the genital or 

anal opening of another person who is 14 years of age or older,

[1]

by any foreign object, substance, instrument, or device, including 

a part of the human body other than the mouth or genitals, with 

intent to cause substantial emotional or bodily pain to the victim 

or with the intent to arouse or gratify the sexual desire of any 

person.” Utah Code Ann. § 76-5-402.2(1) (LexisNexis Supp. 

2016). “Penetration” in this context means “entry between the 

outer folds of the labia.” State v. Simmons, 759 P.2d 1152, 1154 

(Utah 1988). On appeal, Defendant’s sole claim is that the State 

did not present evidence that he caused such penetration.

¶4 To determine whether sufficient evidence was presented, 

we must scrutinize the testimony elicited at trial. And because 

we review evidence in the light most favorable to the jury’s 

verdict, State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346, we rely

primarily on Victim’s account of what happened to her, which 

the jury apparently credited.

¶5 Victim met Defendant at their workplace; Defendant was 

23 and Victim was 17. While working together, Defendant

regaled her with stories of his military training and his plans to 

 

1. A separate statute criminalizes object rape of a person younger 

than 14. See Utah Code Ann. § 76-5-402.3 (LexisNexis Supp. 

2016).
State v. Patterson

20150791-CA 3 2017 UT App 194

get a concealed carry permit. Victim testified that, after their 

shifts, Defendant asked Victim if he could walk her to her car.

When they got to her car, Defendant told Victim that he wanted 

to kiss her. He then kissed her for “about a couple minutes” 

before pushing her into the back seat of her car. Once inside the 

car, Defendant continued to talk to Victim, who was “start[ing] 

to get scared, frightened, and . . . was still unsure of what to do 

or how to act.” Victim testified that she did not think about 

running away at that point, explaining, “[I]n the moment when 

it’s so traumatic, you don’t know what to do. You’re not really in 

control of your body.” She also testified that she was concerned 

about “what he said about the military [training] before and 

about his conceal[ed] carry permit.” Defendant then resumed

kissing Victim.

¶6 Victim testified that, after about five minutes, “[t]he 

kissing got more intimate, and then he undid my pants, and he 

put his hand down my pants and started touching my vagina 

and moving his hand around that area.” Victim further testified,

“[W]hen he started trying to put his fingers up my vagina I told 

him to stop, and he kept saying, ‘No, no, it’s okay. It’s okay.’” 

Victim repeated her plea for Defendant to stop, and “he kind of 

moved his fingers back and just started touching around the area 

instead of putting his fingers up, instead of penetrating.”

¶7 Defendant then opened his pants and “used [his] hand to 

grab my hand, and caress his penis and move it up and down.” 

Victim testified that whenever she tried to let go, Defendant 

would “put[] my hand back onto his penis. After a while he 

noticed that I didn’t want to do that; and after I told him to stop, 

he just noticed that. So he finished himself off. Then he had lifted 

up my shirt and moved my bra up and touched my breast.”

¶8 At this point in Victim’s testimony, the prosecutor asked 

Victim to provide more detail about the earlier touching. 

Specifically, the prosecutor asked Victim to “describe where on 

your vagina he touched.” Victim testified, “He touched the 

general area. Then when he was trying to put his fingers up he 
State v. Patterson

20150791-CA 4 2017 UT App 194

separated the labia” using “[j]ust one hand, his two fingers.” 

Victim further testified, “It really hurt. I had never felt anything 

like that before.”

¶9 The question before us is whether a reasonable jury, after 

hearing this testimony, could find beyond a reasonable doubt 

that Defendant caused “penetration, however slight, of 

[Victim’s] genital . . . opening.” See Utah Code Ann. § 76-5-

402.2(1) (LexisNexis Supp. 2016). We therefore review the 

evidence in detail, bearing in mind that the evidence presented 

to the jury must speak to every element of the offenses charged

to ensure that the jury’s verdict does not rest on speculation:

[N]otwithstanding the presumptions in favor of the 

jury’s decision[,] this Court still has the right to 

review the sufficiency of the evidence to support 

the verdict. The fabric of evidence against the 

defendant must cover the gap between the 

presumption of innocence and the proof of guilt. In 

fulfillment of its duty to review the evidence and 

all inferences which may reasonably be drawn 

from it in the light most favorable to the verdict, 

the reviewing court will stretch the evidentiary 

fabric as far as it will go. But this does not mean 

that the court can take a speculative leap across a 

remaining gap in order to sustain a verdict.

State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94 (first alteration in 

original) (citation and internal quotation marks omitted). “Sex 

crimes are defined with great specificity and require 

concomitant specificity of proof.” State v. Pullman, 2013 UT App 

168, ¶ 14, 306 P.3d 827; accord People v. Paz, No. B265251, 2017 

WL 1374701, at *9 (Cal. Ct. App. Apr. 14, 2017) (certified for 

partial publication at 217 Cal. Rptr. 3d 212) (“In all sex-crime 

cases requiring penetration, prosecutors must elicit precise and 

specific testimony to prove the required penetration beyond a 

reasonable doubt.” (citing Pullman, 2013 UT App 168, ¶ 14)).
State v. Patterson

20150791-CA 5 2017 UT App 194

¶10 The Utah Supreme Court’s decision in State v. Simmons is 

instructive to our analysis. See generally 759 P.2d 1152 (Utah 

1988). There, the supreme court considered the crime of 

unlawful sexual intercourse which, like object rape, has 

“penetration” as an element. Id. at 1154. The supreme court held 

that a victim’s testimony that the defendant “put the tip of his 

penis ‘on’ her labia” was insufficient to support conviction when 

the victim failed to “testify that [the defendant] put his penis 

between the outer folds of her labia.” Id. (noting that the jury 

may have been confused by testimony regarding prior incidents 

where the defendant did “place his penis between [the victim’s]

outer labial folds” and “penetrated the vaginal canal”).

¶11 Similarly, in State v. Pullman, this court vacated a 

defendant’s conviction for sodomy on a child because the 

victim’s testimony “describ[ing] a sexual act involving Pullman’s 

penis and her buttocks” did not satisfy the statutory element of 

“touching the anus.” 2013 UT App 168, ¶ 16 (emphasis, citation,

and internal quotation marks omitted). This court explained that 

the victim’s testimony that “Pullman ‘tried to take [her] panties 

off and stick his dick into [her] butt’ and that ‘it hurt’” was 

“‘sufficiently inconclusive . . . that reasonable minds must have 

entertained a reasonable doubt’ as to whether Pullman’s act 

involved the touching of her anus.” Id. (alterations in original) 

(citation omitted).

¶12 Here, the testimony does not explicitly describe the 

challenged element of the offense—“penetration, however 

slight.” See Utah Code Ann. § 76-5-402.2(1). Victim testified that 

Defendant was “trying to put his fingers up” her vagina until 

she repeated her plea for him to stop. Victim further testified

that, at that point, Defendant “started touching around the area 

instead of putting his fingers up, instead of penetrating.” And 

when asked by the prosecutor to “describe where on your 

vagina he touched,” Victim responded that Defendant had 

touched “the general area” and that he “separated the labia” 

using “[j]ust one hand, his two fingers.” But the State did not 
State v. Patterson

20150791-CA 6 2017 UT App 194

elicit Victim’s testimony as to whether Defendant’s fingers 

actually penetrated between her labia, however slightly.

2

¶13 Because Victim’s testimony did not explicitly establish 

that Defendant penetrated Victim, we consider next whether the 

jury could have reasonably inferred that Defendant penetrated 

Victim. The State asserts that the jury could have inferred from 

her testimony that “Defendant’s fingers entered, however 

slight[ly], between the outer folds of [Victim’s] labia.” (First 

alteration in original) (citation and internal quotation marks 

omitted). Defendant argues that such a finding amounted to 

speculation and was therefore not a reasonable inference.

¶14 The resolution of this issue turns on the difference

between a permissible inference and impermissible speculation.

“This is a difficult distinction for which a bright-line 

methodology is elusive.” Salt Lake City v. Carrera, 2015 UT 73, 

¶ 12, 358 P.3d 1067. “An inference is a conclusion reached by 

 

2. We recognize that testifying about a sexual assault is traumatic 

for the victim. But the State has the burden of “proving by 

evidence every essential element” of the charged crime. See 

Carella v. California, 491 U.S. 263, 266 (1989) (per curiam); see also 

In re Winship, 397 U.S. 358, 364 (1970) (holding that “the Due 

Process Clause protects the accused against conviction except 

upon proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which he is charged”). We urge 

prosecutors to adduce specific testimony regarding each and 

every element of such crimes to ensure that a jury’s guilty 

verdict rests not on speculation but on clear evidence sufficient 

to find beyond a reasonable doubt that the defendant committed 

the crime charged. Cf. People v. Paz, No. B265251, 2017 WL 

1374701, at *9 (Cal. Ct. App. Apr. 14, 2017) (certified for partial 

publication at 217 Cal. Rptr. 3d 212) (“We caution prosecutors 

not to use vague, euphemistic language and to ask follow-up 

questions where necessary.”).
State v. Patterson

20150791-CA 7 2017 UT App 194

considering other facts and deducing a logical consequence from 

them” whereas “speculation is the act or practice of theorizing 

about matters over which there is no certain knowledge.” Id.

(citation and internal quotation marks omitted). Thus, a jury’s

inference is reasonable “if there is an evidentiary foundation to 

draw and support the conclusion” but is impermissible 

speculation when “there is no underlying evidence to support 

the conclusion.” Id. Put another way, “an inference may not 

properly be relied upon in support of an essential allegation if an 

opposite inference may be drawn with equal consistency from 

the circumstances in proof.” See United States v. Finnerty, 470 F.2d 

78, 81 (3d Cir. 1972) (emphasis, citation, and internal quotation 

marks omitted).

¶15 There is no question that penetration is an essential 

element of the crime of object rape; indeed, it is the critical 

element distinguishing object rape from forcible sexual abuse. 

Compare Utah Code Ann. § 76-5-402.2(1) (LexisNexis Supp. 2016), 

with id. § 76-5-404(1) (LexisNexis 2012). Therefore, we must 

consider whether the two scenarios Victim’s testimony might 

have described—penetration or non-penetration—“may be 

drawn with equal consistency” from that testimony. See Finnerty, 

470 F.2d at 81 (emphasis, citation, and internal quotation marks 

omitted).

¶16 Victim testified that Defendant attempted to penetrate her 

using two fingers to “separate[]” her labia. This might describe

separation by insertion (penetration) or separation by stretching 

the skin adjacent to the labia (not penetration). Victim also

testified that, after she repeatedly asked him to stop, Defendant 

“kind of moved his fingers back and just started touching 

around the area.” Again, this might describe Defendant 

removing his fingers from Victim after penetrating her or 

Defendant pulling his hand away from her vagina and labia

without having penetrated Victim. And Victim testified that, 

“[i]t really hurt. I had never felt anything like that before.”

Arguably, this testimony might describe physical pain from

penetration or emotional trauma from Defendant’s forcible 
State v. Patterson

20150791-CA 8 2017 UT App 194

sexual abuse of Victim. Thus, each of these pieces of testimony 

may plausibly be interpreted as describing either a penetrative 

scenario or a non-penetrative scenario.

¶17 However, while Victim’s testimony was susceptible to 

two interpretations, it was not equally consistent with both. See 

Finnerty, 470 F.2d at 81. When viewed as a whole, rather than 

examining each statement in artificial isolation, Victim’s 

testimony more consistently described actual penetration than it 

did mere attempted penetration. For example, given their 

context, Victim’s statements that “[i]t really hurt” and that she 

“had never felt anything like that before” seem more likely to 

relate to bodily pain than emotional injury. And such a 

description of pain suggests that Defendant’s separation of 

Victim’s labia was accomplished by digital penetration. This is 

especially true given Victim’s testimony that it was when 

Defendant was “trying to put his fingers up,” that he “separated 

the labia.” Indeed, Defendant himself described penetration as a 

goal he was unable to accomplish rather than testifying that he 

had been trying to merely separate Victim’s labia, as an objective 

in its own right:

Q: Did you ever penetrate her vagina?

A: I did not.

Q: Was that because of the—what you’ve described 

as the tight quarters, or was there another reason?

A: It was the tight quarters.

Thus Defendant’s concession that he had been attempting to 

penetrate Victim casts doubt on the possible inference that he 

spread Victim’s labia by stretching the skin around it rather than 

by penetrating it with his fingers. In other words, Defendant’s 

admission as to his intent largely dispels the alternative 

possibility that he was, for some reason, merely trying to 
State v. Patterson

20150791-CA 9 2017 UT App 194

separate Victim’s labia, one from the other, by stretching the skin 

and without penetrating between them.

¶18 Victim’s testimony that, after putting his hand into her 

pants and trying to penetrate her vagina, Defendant “kind of 

moved his fingers back and just started touching around the 

area” could mean that his fingers had been on Victim’s labia or 

that his fingers had been between Victim’s labia. But these 

interpretations are not equally consistent with the evidence 

adduced. Specifically, because Victim testified about the pain she 

suffered, the total evidentiary picture is more consistent with the 

interpretation that Defendant had penetrated Victim before 

“mov[ing] his fingers back.”

¶19 Considering these pieces of testimony together, we cannot 

conclude that an inference of non-penetration “may be drawn 

with equal consistency” as an inference of penetration from the 

evidence adduced at trial. See Finnerty, 470 F.2d at 81 (emphasis, 

citation, and internal quotation marks omitted). Therefore, there 

was an evidentiary basis for the jury’s adoption of one inference 

over the other. See Carrera, 2015 UT 73, ¶ 12. And because the 

jury’s adoption rested on an evidentiary basis, we conclude that 

the jury made a reasonable inference rather than an 

impermissible speculation.

¶20 Affirmed.