This opinion is subject to revision before 

publication in the Pacific Reporter

2015 UT 22

IN THE

SUPREME COURT OF THE STATE OF UTAH

———————

STATE OF UTAH,

Appellee,

v.

ROBERT BARELA,

Appellant.

———————

No. 20120476

Filed January 30, 2015

———————

Third District, Salt Lake

The Honorable Robin W. Reese

No. 091903042

———————

Attorneys:

Sean D. Reyes, Att’y Gen., Christopher D. Ballard,

Asst. Att’y Gen., Salt Lake City, for plaintiff

Elizabeth Hunt, Salt Lake City, for defendant

———————

JUSTICE LEE authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

and JUSTICE PARRISH joined.

JUSTICE DURHAM filed a dissenting opinion.

———————

JUSTICE LEE, opinion of the Court:

¶1 This is an appeal from a conviction of Robert Barela of firstdegree rape. Barela claims that his trial counsel was ineffective in 

a variety of ways and asserts error in the district court’s refusal to 

issue a subpoena for the victim’s medical records. He also challenges the sufficiency of the evidence to establish that the victim

of the alleged rape had not consented to sex, an issue that requires 

us to interpret the statutes defining nonconsent in the context of a 

rape charge. 

¶2 We reverse, finding ineffective assistance in counsel’s failure to object to a jury instruction misstating the requirement of 

mens rea as applied to the elements of first-degree rape. In reversing on this ground, we decline to reach a number of alternative 

grounds raised by Barela. But we do address two such grounds 

that implicate matters that may arise on remand, including the 
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Opinion of the Court

interpretation of the statutory standard for nonconsent under 

Utah Code section 76-5-406 and the standard for a victim’s medical records under rule 14(b) of the Utah Rules of Criminal Procedure. 

¶3 First, without reaching the sufficiency of the evidence to 

sustain Barela’s conviction, we interpret the statutory standard of 

nonconsent in a manner consistent with the State’s theory on appeal, concluding that section 406 does not establish the sum and 

substance of all circumstances amounting to nonconsent, but instead simply prescribes the circumstances in which the legislature 

forecloses a jury finding of consent as a matter of public policy. 

Second, without reaching the merits of the request for a medical 

records subpoena in this case, we clarify the standard that applies 

under rule 14(b).

I

¶4 Barela had sex with K.M. at a Massage Envy studio, where 

Barela was employed as a massage therapist and K.M. was a client. K.M. had received one previous massage from Barela at the 

studio. And when she arrived on the date in question, she had not 

requested Barela as her therapist. K.M. removed all of her clothing 

for the massage. During the massage she was covered only by a 

sheet and blanket. 

¶5 That much is undisputed. But as to other details of the

events leading to the sexual encounter, the jury heard two very 

different stories. In Barela’s version of the encounter, K.M. became 

aroused and initiated sexual contact by humping the table and 

grabbing Barela’s crotch. The two then began having sex, in which 

K.M. showed active engagement by giving him oral sex, rolling 

over on the table, and playing with her breasts. 

¶6 In contrast, K.M. told the jury that she was receiving a massage from Barela when he unexpectedly started massaging her inner thigh. She testified that she felt “very uncomfortable” because 

she had never had a massage therapist do that in previous massages, and she “didn’t know how to respond.” Then, “before [she] 

knew it,” Barela pulled her to the end of the table, dropped his 

pants and penetrated her vagina with his penis. K.M. testified that 

“everything happened very fast” and that Barela may have 

touched or penetrated her vagina with his finger, but that she 

wasn’t sure. She testified that Barela went from rubbing her thigh 

to penetrating her vagina within “a matter of seconds.” 

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¶7 K.M. testified that she had not “flirt[ed]” with Barela, and 

did not say or do anything to suggest that she wanted to have sex 

with him. She also testified that she did not physically resist or

verbally tell Barela “no”; she said nothing at all. Instead, she clung 

to the blanket and “just froze.” She said she felt fearful because 

she was alone, and because the only other person in the massage 

parlor was a male receptionist. She repeatedly stressed that “everything happened very fast.” She elaborated that she “checked 

out,” “kind of withdrew,” and “was scared.” When asked to explain what “checked out” meant, K.M. said she just “kind of 

froze.” 

¶8 K.M. testified that she heard Barela make an alarmed (and 

profane) exclamation, and then saw him looking at semen in his 

hand. Then he told her “this concludes your massage” and left the 

room. K.M. got up as “quickly as [she] could,” wiped herself with 

a towel, and got dressed. She testified that her main concern was 

“getting out of Massage Envy” as quickly as she could. Barela met 

her in the hallway, where he offered her water, which she accepted. She “checked out as normal,” told the receptionist the massage 

was “fine,” paid her bill (including a tip), and took a mint. 

¶9 K.M. testified that she then drove away from the massage 

studio but pulled over a few blocks away. At that point she telephoned her friend, who described her as “frantic” and “very upset.” She returned home to her partner, Trista, who said K.M. was 

sobbing, shaking, and hysterical. Trista drove K.M. to the hospital. 

At the hospital, K.M. was examined by a nurse trained in examining sexual assault victims. The nurse found semen in K.M.’s vagina, which was identified as Barela’s through DNA testing. According to the nurse, K.M.’s physical condition was consistent 

with K.M.’s account. But she conceded that K.M.’s condition was

also “consistent with consensual sex,” as there was no genital injury, while explaining that only twenty to thirty percent of assault 

victims display genital injuries. The nurse also testified that sometimes victims of sexual assault or other shocks have a difficult 

time remembering the details of the event. 

¶10 The defense’s primary theory at trial was that K.M. had 

been the instigator and that the sex was consensual. In addition, 

the defense also asserted that K.M. had lied about the encounter 

in an effort to protect her relationship with Trista. In further explanation of this theory, the defense presented evidence that K.M. 

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and Trista had one child together (conceived by K.M. through artificial insemination), and that at the time of the massage K.M. 

was taking fertility medication and had been artificially inseminated only a few days earlier. The evidence also indicated that the 

sperm donor was an African American friend of K.M. and Trista. 

Thus, the defense theory was that K.M. had consensual sex with 

Barela, worried that she had conceived and that the baby would 

resemble him (a “light-skinned Hispanic”), and that a “serious 

problem” would ensue when Trista realized that the baby did not 

resemble their African American donor. 

¶11 The defense also challenged the plausibility of K.M.’s 

version of events. First, the defense highlighted elements of K.M.’s 

testimony that were allegedly inconsistent with her previous accounts of the rape: (a) that K.M. had told the nurse that Barela had 

massaged her genitals and told the police that he had penetrated 

her vagina with his finger, but at the preliminary hearing she

could not remember whether he had penetrated her with his finger or with his penis and at trial could not remember whether he 

had touched her vagina at all; and (b) that K.M. had explained her 

freezing reaction in different ways at different times, characterizing it alternatively as a result of fear, surprise, or drowsiness. 

¶12 The defense also asserted that K.M.’s actions after the 

sexual encounter were inconsistent with rape. It noted that K.M. 

had accepted water from Barela and checked out of the massage 

studio as normal and left a tip, without appearing (to the receptionist) to be upset. And the defense emphasized that K.M. had

told Trista that she didn’t know if she was raped because she 

didn’t resist, a point arguably consistent with a statement she 

made to a police detective—that she didn’t “necessarily . . . even 

care if he’s convicted of a crime.” Counsel also reminded the jury 

that there was no evidence of vaginal trauma. And the defense 

argued that if the rape occurred quickly as K.M. had indicated, it 

would stand to reason that she would have suffered genital injury. 

¶13 After closing arguments, the jury was given its instructions. Instruction 13 enumerated the elements of the offense of 

rape. It indicated that in order to find Barela guilty of rape the jury would have to find the following: 

1. The defendant, Robert K. Barela,

2. Intentionally or knowingly;

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3. Had sexual intercourse with K.M.;

4. That said act of intercourse was without the consent of K.M.

¶14 Instruction 14 quoted a large portion of Utah Code section 76-5-406, which lists “circumstances” in which “[a]n act of 

sexual intercourse . . . is without the consent of the victim.” The

list in Instruction 14 did not make express reference to a circumstance in which the victim “freezes.” But in closing argument the 

prosecutor asserted that Instruction 14 was not an “exhaustive 

list” that “tells you where as a matter of law consent doesn’t exist.” And the prosecutor told the jury that “ultimately it is up to 

you to determine if after listening to the facts consent exists in this 

case.” 

¶15 The jury found Barela guilty. Barela thereafter retained 

new counsel. His new counsel asked the court to issue a subpoena 

of K.M.’s medical records under rule 14(b) of the Utah Rules of 

Criminal Procedure, in order to support his post-verdict theory 

that K.M. was under the influence of prescription medication at 

the time of the massage. The district court declined to issue the 

subpoena, concluding that the request was not reasonably certain 

to provide exculpatory evidence. The court also noted that the 

timing of the request was “significant,” as it had not yet heard the 

motion to arrest judgment or motion for new trial, and the subpoena request would be mooted if those motions were denied. 

¶16 Barela then filed a motion for new trial. In support of that 

motion, Barela asserted first that the evidence of K.M.’s nonconsent was insufficient, particularly under Barela’s reading of Utah 

Code section 76-5-406 (as providing an exclusive list of ways the 

prosecution may establish nonconsent). Second, Barela asserted 

that trial counsel had been ineffective in a variety of ways: in failing to introduce evidence corroborative of Barela’s story, in failing 

to challenge evidence harmful to Barela, in failing to advance a 

mistake of fact defense, in failing to request a mistake of fact instruction, and in failing to object to Instruction 13 on the ground

that it did not clearly require proof of mens rea as to K.M.’s nonconsent. The district court rejected each of these arguments and 

denied Barela’s motion. 

¶17 Barela challenges his conviction and the denial of his motion for new trial on grounds mirroring those asserted in support 

of his motion in the district court. We consider each of his argu5
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ments under well-settled standards of review—yielding deference 

to the jury’s determination of the sufficiency of the evidence1 but 

addressing the legal questions he raises de novo.2

II

¶18 We consider three questions presented for review. First is 

Barela’s claim of ineffective assistance in counsel’s failure to present a mistake of fact theory to the jury and in failing to object to 

the mens rea requirement of the elements instruction given to the 

jury. On the second aspect of this claim (failure to object to the jury instruction), we find reversible error, as we conclude that reasonable counsel should have objected to a defect in the instruction 

and that defect was reasonably likely to have affected the verdict.

¶19 That determination renders unnecessary our analysis of 

Barela’s alternative grounds for reversal. But we nonetheless proceed to consider two other legal issues raised by Barela that may 

be implicated on remand. Thus, without reaching Barela’s assertion of insufficiency of the evidence of nonconsent, we address a 

threshold interpretive question implicated by this argument—

regarding the nature and application of the principles of nonconsent set forth in Utah Code section 76-5-406. And finally, without 

reaching the merits of Barela’s post-trial request for a medical records subpoena under rule 14(b) of the Utah Rules of Criminal Procedure, we interpret the terms of that rule as applied here.

1 See State v. Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645 (stating 

that, on sufficiency of the evidence claims, the court “review[s] the 

evidence and all inferences which may reasonably be drawn from 

it in the light most favorable to the verdict” (internal quotation 

marks omitted)); State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058 

(indicating that we sustain all inferences made by the jury unless 

they fall “to a level of inconsistency or incredibility that no reasonable jury could accept” (internal quotation marks omitted)).

2 Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, 

¶ 41, 308 P.3d 382 (“No deference is given to the lower court’s 

analysis of abstract legal questions. . . . Our review of conclusions 

of law is accordingly de novo.”).

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A

¶20 Barela asserts two related grounds for his claim of ineffective assistance of counsel under the standard set forth in Strickland 

v. Washington, 466 U.S. 668 (1984). First, Barela claims that his trial 

counsel was ineffective in limiting his defense to a “he-said, shesaid” approach—in urging the jury simply to believe Barela’s story that K.M. was the instigator and to reject K.M.’s contrary account. In Barela’s view, counsel should instead have pressed an 

alternative theory, that even if Barela was the instigator, he was 

not guilty of rape because he was reasonably mistaken—or in other words lacked mens rea—as to K.M.’s nonconsent. And second, 

Barela also charges a related error in counsel’s failure to object to 

the statement of the mens rea requirement in the elements instruction given to the jury (Instruction 13). We reject the first point but 

agree as to the second.

¶21 The threshold question under Strickland is not whether 

some strategy other than the one that counsel employed looks superior given the actual results of trial. It is whether a reasonable, 

competent lawyer could have chosen the strategy that was employed in the real-time context of trial. Id. at 489. Under that 

standard we uphold the reasonableness of counsel’s decision to 

forgo a mistake-of-fact defense but find fault in the failure to object to the jury instruction.

¶22 It is easy to second-guess counsel’s trial strategy from the 

rearview mirror of an appeal. Given that the jury rejected Barela’s 

account and apparently accepted K.M.’s, it is tempting to deem 

counsel’s strategy faulty. But that is not how Strickland analysis 

proceeds. We may not evaluate counsel’s conduct from the hindsight-biased vantage point of the appeal. Instead, we must consider whether counsel’s decision to proceed with the “he-said, shesaid” approach was reasonable at the time he made this decision. 

Viewed in this light, there is no doubt that counsel’s decisions 

were reasonable.

¶23 At the time of trial, counsel had ample reason to anticipate the meaningful possibility that the jury would reject K.M.’s 

account and accept Barela’s. Some inconsistencies in K.M.’s story 

left some room for that hope, as, of course, did the high standard 

of proof beyond a reasonable doubt. And granted, counsel could 

legally have presented alternative theories to the jury. Thus, instead of just relying on Barela’s account and discounting K.M.’s, 

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counsel could have openly entertained the possibility that K.M. 

was telling the truth, and invited the jury (through witness examination and in closing) to nonetheless acquit on the ground that he 

might have been the instigator but mistaken as to whether she 

consented. But the legal viability of this strategy does not render it 

the only reasonable one under Strickland.

¶24 If counsel had pursued this alternative defense, it could 

reasonably have anticipated doing significant damage to its principal theory. The damage would ensue from the fact that the alternative theory would require counsel to openly entertain the 

possibility that his client was lying. Such a move is legally tenable, 

but strategically fraught with risk. We cannot properly fault defense counsel for avoiding this risk and sticking with a single, 

straightforward defense on appeal. See Archuleta v. Galetka, 2011

UT 73, ¶ 96, 267 P.3d 232 ( “[R]easonably informed strategic 

choices are almost unassailable”).

¶25 Yet that same analysis cannot excuse counsel’s failure to 

object to Instruction 13. That instruction, as quoted above, identified four elements of rape: “1. The defendant, Robert K. Barela, 2. 

Intentionally or knowingly; 3. Had sexual intercourse with K.M.; 

4. That said act of intercourse was without the consent of K.M.” 

¶26 This instruction was in error. In asking the jury to consider whether Barela “intentionally or knowingly” “had sexual intercourse with K.M.” and whether the intercourse was “without 

[her] consent,” the instruction implied that the mens rea requirement (“intentionally or knowingly”) applied only to the act of sexual intercourse, and not to K.M.’s nonconsent. It conveyed that 

idea by coupling the mens rea requirement directly with the element of sexual intercourse, and by articulating the element of 

K.M.’s nonconsent without any apparent counterpart requirement 

of mens rea.3 That implication was error. After all, our criminal 

3 In response, the State asserts that the court of appeals upheld 

a similar instruction in State v. Marchet, 2009 UT App 262, ¶¶ 21–

23, 219 P.3d 75. But the instruction in that case differed from the 

one here in a crucial respect: the mens rea element was listed last, 

after both the “sexual intercourse” and “nonconsent” elements. Id.

¶ 21. That instruction at least arguably suggests that the mens rea

element applies to all of the above-listed elements. So we proceed 

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code requires proof of mens rea for each element of a non-strict 

liability crime,4 and the crime of rape unmistakably includes the 

element of nonconsent.5 So, as our court of appeals has held, the 

crime of rape requires proof not only that a defendant “knowingly, intentionally, or recklessly had sexual intercourse,” but also 

that he had the requisite mens rea as to the victim’s nonconsent.

State v. Marchet, 2009 UT App 262, ¶ 23, 219 P.3d 75.

¶27 Instruction 13 was in error. And reasonable trial counsel 

should have objected to it. On this point, there is no reasonable 

strategy that could explain trial counsel’s performance. Again, a 

reasonable lawyer could well have decided not to present alternative theories to the jury—particularly where (as here) the fallback 

theory (reasonable mistake as to nonconsent) could have undermined the primary one (the victim was the instigator). But no reasonable lawyer would have found an advantage in understating 

the mens rea requirement as applied to the victim’s nonconsent. 

There is only upside in a complete statement of the requirement of

mens rea, particularly in a case like this one where the jury could 

reasonably have decided to reject both the prosecution’s case and 

the defense’s case in a manner that could have led to an acquittal. 

Thus, trial counsel was ineffective in failing to object to Instruction 13.

¶28 That misstep, moreover, was reasonably likely to have affected the verdict. See Strickland, 466 U.S. at 696. The jury apparently did not accept all of Barela’s story—of K.M. being the sexual 

instigator. But that does not foreclose the possibility that a properly instructed jury might still have rendered a verdict in his favor. 

on the ground that Marchet is distinguishable, and without reaching the question of whether the instruction in that case was an accurate statement of law.

4 See UTAH CODE § 76-2-101(1) (“A person is not guilty of an offense unless the person’s conduct is prohibited by law; and the person acts intentionally, knowingly, recklessly, with criminal negligence, or with a mental state otherwise specified in the statute defining the offense . . . .” (emphasis added)). 

5 See Id. § 76-5-402(1) (defining the conduct prohibited by law 

as “sexual intercourse with another person without the victim’s consent” (emphasis added)).

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If Instruction 13 had clearly and correctly required the jury to find 

mens rea as to K.M.’s nonconsent, the jury could reasonably have 

acquitted Barela on the basis of a determination that he mistook 

K.M.’s reaction for consent. And on this record we conclude that 

that was reasonably likely. 

¶29 The jury heard two different accounts of the events leading to Barela’s sexual intercourse with K.M.—Barela’s and K.M.’s. 

Barela painted K.M. as the instigator. K.M. had it the other way 

around (Barela as the instigator). But even in K.M.’s account, she 

never explicitly (in words) or openly (in physical resistance) rebuffed Barela’s advances. Instead K.M. testified that she “froze”—

neither actively participating in sex nor speaking any words. 

¶30 On this record, we have no way of knowing how the jury 

processed these two stories. Thus, we cannot properly conclude 

that the jury found K.M.’s account “credible,” as the dissent suggests. Infra ¶ 61.6 Because the instructions required mens rea only 

as to sexual intercourse, all we know from the jury’s verdict is that 

it concluded (a) that Barela’s intercourse with K.M. was intentional or knowing, and (b) that K.M. did not consent. But that does not 

at all mean that the jury accepted K.M.’s story lock, stock, and 

barrel. The jury could easily have thought that the truth fell 

somewhere in between the two accounts—that K.M. was somewhat flirtatious but not the clear instigator (and did not ultimately 

consent). And even in that event, the jury (as incorrectly instructed) could still have found Barela guilty upon a mere finding of 

intercourse that was intentional and nonconsensual—but without 

ever considering Barela’s state of mind as to K.M.’s consent.

¶31 The dissent makes much of the environment of a massage 

studio, asserting that K.M.’s state of undress was normal in this 

business setting and thus that “a reasonable massage therapist 

would not perceive the act of massaging the inner thigh of a client 

as an invitation for a sexual encounter in a place of business that is 

accepted when the client simply fails to object within a few se6 It may well be that “[g]iven” the account offered by K.M., “it 

is highly probable that a properly instructed jury would have concluded that Mr. Barela knew that K.M. had not consented to sex.” 

Infra ¶ 60. But we cannot take K.M.’s story as a given, as we have 

no way of knowing that the jury accepted it in its entirety.

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conds.” Infra ¶ 62. That is fair enough if one assumes that the jury 

accepted K.M.’s story in its entirety. But we cannot assume that, 

as our review under Strickland step two must be in light of the “totality of the evidence,” infra ¶ 7, not just the evidence supporting 

the verdict. In light of the totality of the evidence in the record 

here, a reasonable jury could have found the truth to lie somewhere between K.M.’s and Barela’s accounts. And if a jury so concluded, it is reasonably likely that the erroneous jury instruction 

could have made changed the outcome.

¶32 We reverse on this basis. A reasonable jury could have 

found the truth to lie somewhere between Barela’s and K.M.’s accounts. And a reasonable jury viewing the evidence in that way 

could have acquitted Barela if correctly instructed—on the basis of 

a determination that Barela had neither knowledge nor recklessness as to K.M.’s nonconsent. We accordingly conclude that counsel’s ineffective assistance was prejudicial, as it was reasonably 

likely to have changed the verdict.

B

¶33 That conclusion renders unnecessary any further analysis 

of Barela’s other grounds for challenging the verdict in this case. 

But we nonetheless proceed to consider a couple of issues that he 

raises because they are likely to be implicated on remand. See

UTAH R. APP. P. 30(a) (acknowledging appellate court’s authority, 

in a case in which a “new trial is granted,” to “pass upon and determine all questions of law involved in the case presented upon 

the appeal and necessary to the final determination of the case”).

¶34 First we consider a legal question raised in Barela’s challenge to the sufficiency of the evidence on the element of K.M.’s 

nonconsent. In challenging the sufficiency of such evidence, 

Barela has raised not only the fact-intensive question of the sufficiency of the evidence to sustain the jury’s verdict, but also a 

threshold question of statutory interpretation. That legal question 

concerns the meaning of the terms of Utah Code section 76-5-406. 

Specifically, Barela asserts that section 406 prescribes an exhaustive list not encompassing the notion of K.M.’s nonconsent by 

“freezing” during the encounter at Massage Envy, and asserts that 

the evidence at trial was insufficient to sustain a viable jury finding of nonconsent under this understanding of the statute. 

¶35 We need not and do not reach the factual question of the 

sufficiency of the evidence. But we do consider Barela’s threshold 

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argument concerning the scope and meaning of section 406 because that issue is likely to be implicated on remand.

¶36 Utah Code section 76-5-406 is entitled “Sexual offenses 

against the victim without consent of victim—Circumstances.” 

With regard to a number of enumerated sexual offenses, including 

rape, this statute states that “abuse is without consent of the victim” under “any of” twelve “circumstances” listed in the statute, 

as follows:

(1) the victim expresses lack of consent through 

words or conduct;

(2) the actor overcomes the victim through the actual 

application of physical force or violence;

(3) the actor is able to overcome the victim through 

concealment or by the element of surprise;

(4)(a)(i) the actor coerces the victim to submit by 

threatening to retaliate in the immediate future 

against the victim or any other person, and the victim 

perceives at the time that the actor has the ability to 

execute this threat; or

(ii) the actor coerces the victim to submit by 

threatening to retaliate [as defined in section (4)(b)] in 

the future against the victim or any other person, and 

the victim believes at the time that the actor has the 

ability to execute this threat; . . .

(5) the victim has not consented and the actor knows 

the victim is unconscious, unaware that the act is occurring, or physically unable to resist;

(6) the actor knows that as a result of mental disease 

or defect, the victim is at the time of the act incapable 

either of appraising the nature of the act or of resisting it;

(7) the actor knows that the victim submits or participates because the victim erroneously believes that the 

actor is the victim’s spouse;

(8) the actor intentionally impaired the power of the 

victim to appraise or control his or her conduct by 

administering any substance without the victim’s 

knowledge;

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(9) the victim is younger than 14 years of age;

(10) the victim is younger than 18 years of age and at 

the time of the offense the actor was the victim’s parent, stepparent, adoptive parent, or legal guardian or 

occupied a position of special trust in relation to the 

victim as defined in Section 76-5-404.1; 

(11) the victim is 14 years of age or older, but younger 

than 18 years of age, and the actor is more than three 

years older than the victim and entices or coerces the 

victim to submit or participate, under circumstances 

not amounting to the force or threat required under 

Subsection (2) or (4); or

(12) the actor is a health professional or religious 

counselor, as those terms are defined in this Subsection (12), 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.

UTAH CODE § 76-5-406.

¶37 Barela would have us construe this statute as an exhaustive delineation of the metes and bounds of the element of nonconsent. His argument is twofold: (a) that this provision is aimed 

at defining the element of nonconsent—in prescribing the “valid 

theories” that the prosecution may use in establishing this element; and (b) that the list of valid theories is an exhaustive one.

¶38 We disagree. The statute does not define nonconsent. It 

merely “limits the various theories of consent that might otherwise be available.” State v. Salazar, 2005 UT App 241, ¶ 9, 114 P.3d 

1170. The point of the statute, in other words, is to foreclose the 

factfinder from deeming sex to be consensual in circumstances 

deemed substantively out of bounds as a matter of public policy.

¶39 As a general rule, consent—or nonconsent, to put it in 

terms of an element of a crime—is a fact-intensive, contextdependent question, decided on a case-by-case basis. See State v. 

Myers, 606 P.2d 250, 252 (Utah 1980). To determine whether a vic13
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tim 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.7 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.

¶40 This long-established, settled understanding is nowhere 

overridden by the terms of section 406. The statute nowhere prescribes any definition of nonconsent. Nor does it purport to set 

forth any sort of formula or criteria for the establishment of nonconsent. Instead, section 406 is best understood as prescribing exceptions to the general rule—as deeming certain circumstances 

beyond the case-by-case discretion of the factfinder. Thus, under 

section 406, the jury is foreclosed from finding consent by a victim 

who “expresse[d] lack of consent through words or conduct” (but 

really meant “yes”), UTAH CODE § 76-5-406(1); in circumstances in 

which the actor “overcomes the victim through the actual application of physical force or violence” or “through concealment or by 

the element of surprise,”8 id. § 76-5-406(2), (3); or by a victim under the age of fourteen, id. § 76-5-406(9). 

7 The “freezing” circumstances of this case are an excellent example. Barela may be right to say that “freezing or nonparticipation may well be indistinguishable from normal sexual 

activity in many women.” But that is just another way of saying 

that the question of consent is highly nuanced and contextdependent. Thus, the outward indicators of consent in one context 

may suggest nonconsent in another. A person who had previously 

been a victim of sexual assault might well respond to unwanted 

sexual contact in a post-traumatic-stress response of “freezing.”

And it would be reasonable under those circumstances for a jury 

to infer that the victim’s freezing reaction was indicative of nonconsent—and of the defendant’s knowledge of nonconsent if the 

defendant was aware of the victim’s past. But that does not suggest that “freezing” would always support such a determination, 

since as Barela indicates it might be possible for a defendant to 

establish that a victim’s nonparticipation indicated consent in context. 

8 The State has cited this provision in its briefs as an alternative 

basis for an affirmance, asserting that even if the statute defines 

14

 

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Opinion of the Court

¶41 These terms are not ultimately definitional. They simply 

direct, as a matter of law, that “abuse is without consent of the 

victim” under the circumstances enumerated in the statute. Id. 

§ 76-5-406. We reject Barela’s approach on that basis.

¶42 In so doing, we are also mindful of some practical problems implicated by Barela’s approach. See Encon Utah, LLC v. Fluor 

Ames Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d 263 (explaining that 

“absurd results” may provide a basis for resolving a dispute between “two alternative readings” of a statute). Specifically, we 

note that under Barela’s reading, a jury would be foreclosed from 

finding nonconsent in circumstances not encompassed by the 

terms of section 406 but still falling within the well-accepted 

meaning of this term. Thus, if section 406 were construed to identify the sum and substance of all circumstances in which nonconsent could be established, a jury would be foreclosed from finding 

nonconsent in a case where the actor knows that the victim submits or participates because the victim erroneously believes that 

the actor is the victim’s lover (but not spouse)9; or where the power of the victim to appraise or control his or her conduct was impaired by the victim’s accidental ingestion of a substance (not administered by the actor).10

¶43 Yet the settled understanding of nonconsent in the criminal law would easily support a guilty verdict in these circumstances. In the law of rape, “the essence of consent is that it is given out of free will.” 65 AM. JUR. 2D Rape § 5 (2014); 75 C.J.S. Rape 

“nonconsent” comprehensively, there was sufficient evidence to 

show that Barela “overc[a]me” K.M. “through concealment or by 

the element of surprise.” UTAH CODE § 76-5-406(3). We do not 

reach this question because we do not read the statute to set forth 

a comprehensive definition of nonconsent.

9 See Id. § 76-5-406(7) (indicating that sex is “without the consent of the victim” where “the actor knows that the victim submits 

or participates because the victim erroneously believes that the 

actor is the victim’s spouse” (emphasis added)).

10 See id. § 76-5-406(8) (sex is “without the consent of the victim” where “the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any 

substance without the victim’s knowledge” (emphasis added)).

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Opinion of the Court

§ 22 (2014) (“A rape victim need not orally express her lack of 

consent as long as the lack of consent is demonstrated by or can be 

implied from her acts and conduct.”). See also BLACK’S LAW 

DICTIONARY 1151 (9th ed. 2009) (defining nonconsent as “the refusal to engage willingly in sexual intercourse”). That is why a 

victim who outwardly appears to express assent or approval may 

not have consented under the law—as her assent is not freely given if it is under circumstances of impairment, and it is not a matter of free will if it is a product of mistake of fact as to the identity 

of the victim. The above-noted hypotheticals are equally nonconsensual, as the degree of impairment from a substance is the same 

regardless of whether the actor administered it, and the mistake 

as to identity is as troubling for a lover as it is for a spouse. But 

Barela’s reading of the statute would foreclose a conviction under 

these circumstances, as they are not precisely covered by section 

406. We also reject Barela’s construction on this alternative basis. 

¶44 Thus, we interpret section 406 not as establishing the sum 

and substance of all circumstances amounting to nonconsent, but 

as simply prescribing the circumstances in which the legislature 

forecloses a jury finding of consent as a matter of public policy. 

And we base this decision not only on the plain terms of the statute, but also on the ground that it also avoids the absurdity of 

preventing a jury from finding nonconsent in circumstances 

properly understood to qualify as such.

¶45 We also reject Barela’s claim that this approach is incompatible with our analysis in State v. Jeffs, 2010 UT 49, 243 P.3d 1250.

Granted, the Jeffs opinion characterized certain theories of consent 

as “valid” or “invalid” under the terms of section 76-5-406. Id.

¶ 38. But in context, our analysis in Jeffs cannot be understood to 

construe section 406 as exhaustively defining the concept of nonconsent. Instead we were simply acknowledging that a conviction 

of rape may be reversed where it is based on an erroneous—

“invalid”—jury instruction. See id. ¶¶ 33–38 (finding reversible 

error in an invalid jury instruction that misconstrued subsections 

(10) and (11) of section 406; explaining that under these subsections it must be the actor, and not a defendant charged with abetting the actor, who is in a position of special trust or entices or coerces the underage victim). 

¶46 In other words, the Jeffs opinion held only that the jury 

must be properly instructed as to the terms and application of sec16
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Opinion of the Court

tion 406. An instruction misstating those terms is invalid, and potentially reversible error. But that in no way means that constructions of nonconsent outside the bounds of section 406 are invalid. 

We never said that in Jeffs and we clarify here that that is not our 

law.

C

¶47 Finally, we also consider the legal basis for Barela’s challenge to the denial of his request for a medical records subpoena 

under rule 14(b) of the Utah Rules of Criminal Procedure—again 

on the ground that this issue may well arise again on remand. 

¶48 In challenging the denial of his request for a rule 14(b) 

subpoena of K.M.’s medical records, Barela claimed two principal 

errors—one in the district court’s determinations that the request 

was untimely (as it could be mooted if the motion for new trial 

were denied) and the other in its conclusion that the request was

properly denied (in the sense of not being reasonably certain to 

produce exculpatory evidence). On the first point Barela asserted

that the terms of the rule do not foreclose a post-trial request. And 

on the second he has insisted that his request was reasonably 

aimed at uncovering evidence in support of his post-verdict theory that K.M. had an “impulsive sexual relationship with him” and 

“was not a reliable witness.”

¶49 Barela may have a (technical) point on the timeliness 

question. On its face the rule does leave some limited room for 

post-trial requests. See UTAH R. CRIM. P. 14(b)(3) (requiring request 

to be “filed with the court as soon as practicable, but no later than 

30 days before trial, or by such other time as permitted by the court”) 

(emphasis added). Yet the fact that a court may permit a request 

later than thirty days before trial does not mean that it should do 

so, much less that it would be reversed on appeal for not doing so. 

Presumably the trial court retains substantial discretion in deciding whether to grant a post-trial request under rule 14(b). And 

surely that discretion could be exercised in a manner considering 

whether the information requested could have been requested at 

least thirty days before trial. To succeed on his second point, 

Barela would have to establish that he was “entitled to production 

of the records sought under applicable state and federal law.” 

UTAH R. CRIM. P. 14(b)(1). This is a high bar. In order to show that 

he is entitled to (presumptively privileged) medical records, a defendant must show, to a “reasonable certainty,” that “the records 

17
STATE v. BARELA

JUSTICE DURHAM, dissenting

actually contain exculpatory evidence . . . favorable to his defense.” State v. Worthen, 2009 UT 79, ¶ 38, 222 P.3d 1144 (internal 

quotation marks omitted). And in order to ensure that no privileged information is released that is unnecessary for discovering 

exculpatory information, the request must “identify the records 

sought with particularity and be reasonably limited as to subject 

matter.” UTAH R. CRIM. P. 14(b)(2). 

¶50 We do not reach the question whether the district court 

erred in denying the subpoena request in this case under these 

standards. But we do clarify that these are the governing standards, which will apply if the issue arises again on remand. 

————

JUSTICE DURHAM, dissenting:

¶51 I agree that Mr. Barela’s counsel provided ineffective representation by failing to object to the jury instructions. The instructions were erroneous because they implied that the State had 

to prove only that K.M. did not consent to sexual intercourse rather than prove that Mr. Barela had the requisite mens rea as to 

the victim’s lack of consent. In other words, the instructions did 

not convey the requirement that the State prove Mr. Barela’s intentional, knowing, or reckless state of mind regarding the absence of K.M.’s consent. See State v. Calamity, 735 P.2d 39, 43 (Utah 

1987) (crime of rape “may be proved by an intentional, knowing, 

or reckless mental state”); UTAH CODE § 76-2-102 (“[W]hen the 

definition of [an] 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.”).

¶52 I disagree, however, with the majority’s conclusion that 

Mr. Barela satisfied the second step of a Strickland ineffective assistance of counsel claim. Supra ¶¶ 28–32. In my view, Mr. Barela

cannot show a reasonable probability that, but for the deficiency 

of trial counsel in failing to object to the instructions, the jury’s 

verdict would have been different.

¶53 “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland v. 

Washington, 466 U.S. 668, 691 (1984). “The defendant must show 

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to un18
Cite as: 2015 UT 22

JUSTICE DURHAM, dissenting

dermine confidence in the outcome.” Id. at 694. “In making this 

determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id. at 

695.

¶54 In State v. Hutchings, 2012 UT 50, ¶¶ 24–28, 285 P.3d 1183, 

we recently applied the Strickland prejudice standard in a similar 

case. We determined in Hutchings that a defense attorney’s performance was deficient because the attorney failed to object to a 

potentially confusing mens rea jury instruction during an aggravated assault trial. Id. ¶¶ 18–23. We concluded that the instructions given created an unacceptable risk that the jury did not 

comprehend the necessity of finding that the defendant intended 

to cause serious bodily injury. Id. ¶¶ 22–23. We upheld the conviction, however, because we determined that there was not a reasonable probability that a correctly instructed jury would have 

reached a different verdict. Id. ¶ 28. The only logical conclusion to 

be drawn from the verdict in Hutchings was that the jury had rejected the defendant’s testimony and accepted the victim’s testimony that the defendant kicked in the victim’s door, grabbed the 

victim by the neck and chocked her, broke her hand by slamming 

it against a hard object, and stated that he was going to kill her. Id. 

¶¶ 3, 27 & n.11. Given the “totality of the evidence before the . . . 

jury,” Strickland, 466 U.S. at 695, the instructional error did not 

undermine our confidence in the outcome of the trial because a 

correctly instructed jury likely would have found that the defendant acted with the requisite mens rea, Hutchings, 2012 UT 50, ¶ 28.

¶55 We reached a similar conclusion in State v. Powell, 2007 

UT 9, 154 P.3d 788 and State v. Casey, 2003 UT 55, 82 P.3d 1106. In 

both cases, defense counsel did not object to an erroneous instruction that the jury could find the defendant guilty of attempted 

murder if the defendant acted either intentionally or knowingly.

Powell, 2007 UT 9, ¶¶ 17, 19; Casey, 2003 UT 55, ¶¶ 38–39. These 

instructions were in error because a defendant may only be convicted of attempted murder if the defendant acted intentionally; a 

knowing state of mind is insufficient. Casey, 2003 UT 55, ¶ 38. We 

nevertheless upheld the convictions in both Powell and Casey, 

holding that there was not a reasonable likelihood that the in19
STATE v. BARELA

JUSTICE DURHAM, dissenting

structional error affected the verdict.1 Powell, 2007 UT 9, ¶¶ 21–23; 

Casey, 2003 UT 55, ¶¶ 46–50.

¶56 Powell and Casey are factually similar to each other, leading this court to hold that the instructional error in each case was 

harmless for similar reasons. In Powell, the defendant twice pointed a gun at the victim’s head and pulled the trigger, but the gun 

did not fire. 2007 UT 9, ¶¶ 3–4. As the defendant fled in a car, he 

noticed the loaded magazine clip for the gun lying on the floor 

and exclaimed, “That’s why [it] didn’t work!” Id. ¶ 5. In Casey, the 

defendant pointed a gun at the victim’s head and pulled the trigger, but it misfired. 2003 UT 55, ¶ 5. The defendant then shot at 

the victim as she fled, but missed. Id. In both Powell and Casey, we 

reviewed the compelling evidence that the defendants intended to 

kill their victims and held that there was not a reasonable probability that a correctly instructed jury would have come to a different conclusion. Powell, 2007 UT 9, ¶ 23; Casey, 2003 UT 55, ¶¶ 49–

50.

¶57 In summary, Strickland and Utah caselaw require courts 

to evaluate the totality of the evidence presented to the jury to determine the probability of a more favorable outcome for the de1 The defendants in Powell and Casey did not raise a Strickland

ineffective assistance of counsel argument. Instead, they asserted 

that this court should have reviewed the unpreserved instructional errors under the plain error doctrine, which requires the 

appellant to show that “(i) [a]n error exists; (ii) the error should 

have been obvious to the trial court; and (iii) the error is harmful, 

i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our 

confidence in the verdict is undermined.” Casey, 2003 UT 55, ¶ 41 

(internal quotation marks omitted); accord Powell, 2007 UT 9, ¶ 18. 

Because the third element of a plain error analysis is identical to 

the second step of a Strickland analysis, the reasoning of Powell

and Casey regarding whether the instructional error affected the 

outcome of those cases is relevant to the question of prejudice at 

issue in this case. See State v. Dunn, 850 P.2d 1201, 1225 (Utah 

1993) (“Th[e] prejudice test [for ineffective assistance of counsel] 

is equivalent to the harmfulness test we apply in determining 

plain error . . . .”).

20

 
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JUSTICE DURHAM, dissenting

fendant if defense counsel had provided adequate representation 

and ensured that the jury had been properly instructed. A conviction should only be reversed if this probability of a more favorable 

result is “sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694.

¶58 In this case, Mr. Barela asserted that he was innocent because K.M. actively solicited a sexual encounter. Supra ¶ 5. Although the verdict demonstrates that the jury did not believe 

Mr. Barela’s testimony, we must still evaluate the likelihood that a 

correctly instructed jury would have found that Mr. Barela lacked 

the required mens rea given K.M.’s version of what happened. See

Hutchings, 2012 UT 50, ¶ 28 (evaluating the likelihood of a defense 

verdict if the jury had been correctly instructed where the jury 

had clearly rejected the defendant’s testimony); Powell, 2007 UT 9, 

¶ 23 (same).

¶59 K.M. testified that Mr. Barela had given her a massage on 

one occasion prior to the day she was sexually assaulted. The first 

massage was uneventful, and K.M. did not request Mr. Barela for 

the second massage. During the second massage, the parties did 

not engage in conversation. Close to the end of the massage, 

Mr. Barela began to massage K.M.’s inner thigh while she was lying on her back. This made K.M. uncomfortable. Before K.M. 

could formulate a response, and within “a matter of seconds” of 

massaging her inner thigh, Mr. Barela pulled her to the end of the 

table without saying anything, dropped his pants, and penetrated 

K.M.’s vagina with his penis. K.M. testified that “it happened very 

fast” and that “before [she] knew it,” Mr. Barela had penetrated 

her. Mr. Barela ejaculated within about thirty seconds to a minute 

and pulled up his pants. He then said, “Okay, this concludes your 

massage,” and left the room.

¶60 Given this evidence, it is highly probable that a properly 

instructed jury would have concluded that Mr. Barela knew that 

K.M. had not consented to sex when he penetrated her vagina 

with his penis. And it is even more likely that a jury would conclude that Mr. Barela acted with criminal recklessness. A person 

acts with a reckless state of mind when that person engages in 

conduct

[r]ecklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is 

aware of but consciously disregards a substantial and 

21
STATE v. BARELA

JUSTICE DURHAM, dissenting

unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and 

degree that its disregard constitutes a gross deviation 

from the standard of care that an ordinary person 

would exercise under all the circumstances as viewed 

from the actor’s standpoint.

UTAH CODE § 76-2-103(3). Thus, the test for determining 

whether a criminal defendant acted recklessly involves both a 

subjective and an objective element. First, the defendant must subjectively be “aware of but consciously disregard[] a substantial 

and unjustifiable risk” that a particular circumstance exists or that 

a particular result will occur. Id. Second, in order to determine 

whether disregarding the risk was “unjustifiable,” the fact-finder 

must measure the defendant’s conduct against an objective, reasonable person standard.

¶61 According to K.M.’s testimony, which the jury found 

credible, Mr. Barela inserted his penis into the vagina of a client 

who was a near-stranger to him within a matter of seconds of 

massaging her inner thigh. K.M. did not indicate her consent to 

Mr. Barela’s actions in any way or even engage in conversation 

with him. The most that can be said is that K.M. did not actively 

object to Mr. Barela massaging her inner thigh within seconds of 

his doing so.2 Thus the question presented to a correctly instructed jury would have been (1) whether Mr. Barela was “aware of 

but conciusly disregarded a substantial and unjustifiable risk 

that” K.M. had not consented to sex and, if so, (2) whether 

Mr. Barela’s assumption of the risk of being wrong about any con2 In his brief before this court, the defendant focused on K.M.’s 

testimony that she was frozen with shock while she was being 

sexually assaulted, and that she did not do or say anything. This 

testimony, however, has no bearing on Mr. Barela’s state of mind 

when he first inserted his penis into K.M.’s vagina. It is at this 

moment that Mr. Barela was guilty of rape if he acted with the 

requisite mens rea as to the absence of K.M.’s consent. Any events 

occurring after this moment are irrelevant to the question of 

whether Mr. Barela acted intentionally, knowingly, or recklessly.

22

 
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JUSTICE DURHAM, dissenting

jecture that K.M. had consented to sex under these facts3 “constitute[d] a gross deviation from the standard of care that an ordinary person would exercise.” Id.

¶62 Under this reckless state of mind standard, it is not reasonably probable that a correctly instructed jury would have acquitted Mr. Barela. When K.M. entered the establishment where 

Mr. Barela worked as a massage therapist, she did so as a paying 

client seeking a service at an established business. K.M. had no 

relationship with Mr. Barela other than that of a client, and she 

did not engage in flirtatious behavior or even friendly conversation with him. Although K.M. was required to undress and lie 

beneath a sheet, a reasonable massage therapist would not perceive this as an indication that K.M. consented to sex any more 

than a reasonable doctor would perceive a patient’s state of undress as consent. Moreover, a reasonable massage therapist 

would not perceive the act of massaging the inner thigh of a client 

as an invitation for a sexual encounter in a place of business that 

is accepted when the client simply fails to object within a few seconds. In my view, a reasonable jury likely would find that 

Mr. Barela was aware of but consciously disregarded the risk that 

K.M. did not consent to sex. Moreover, a jury likely would not 

only find that Mr. Barela breached the standard of care that an 

ordinary massage therapist would observe by disregarding this 

risk, but also would conclude that any assumption that a client 

had consented to sex under these circumstances would be a gross 

deviation from this standard of care.

¶63 Similar to this court’s holdings in Hutchings, Powell, and 

Casey, I conclude that the probability that a properly instructed 

jury would acquit Mr. Barela of rape is not sufficient to under3 Mr. Barela did not testify that he believed K.M. had consented to sex given the version of events K.M. testified to. He testified 

only as to his belief that K.M. had consented given his version of 

events in which K.M. initiated a sexual encounter (a version clearly rejected by the jury). The State, however, bears the burden of 

proving Mr. Barela’s culpable state of mind, and the absence of 

specific testimony regarding Mr. Barela’s perception of whether 

K.M. had consented to sex under K.M.’s version of events does 

not affect my analysis.

23

 
STATE v. BARELA

JUSTICE DURHAM, dissenting

mine my confidence in the verdict. I would, therefore, hold that 

Mr. Barela cannot satisfy the second step of the Strickland analysis, 

and I would affirm his conviction.

24