This opinion is subject to revision before publication in the Pacific Reporter

201 5 UT 22

I N T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————— S TATE OF U TAH
, Appellee

,

v.

R OBERT B ARELA
, Appellant

.

———————

No. 20120476
Filed J anuary 30 , 201 5

——————— 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

——————— J USTICE L EE authored the opinio n of the Court, in which

C HIEF J USTICE D URRANT
, A SSOCIATE C HIEF J USTICE N EHRING
, and J USTICE P ARRISH joined.

J USTICE D URHAM filed a dissenting opinion.

——————— J USTICE L EE , opinion of the C ourt :
¶1 This is an appeal from a conviction of Robert Barela of first

degree 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 cha llenges the sufficiency of the evidence to establish th at 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 fai lure to object to a jury instruction misstating the requirement of

mens rea as applied to the elements of first

- degree rape. In rever sing on this ground, we decline to reach a number of alternative grounds raised by Barela. But we do address two such ground s that implicate matters that may arise on remand, including theS TATE v. B ARELA 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 med ical records under rule 14(b ) of the Utah Rules of Criminal Proc edu re

. ¶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 a ppeal, concluding that section 406 does not establish the sum and substance of all circumstances amounting to nonconsent, but i nstead 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 cl ient. K.M. had received one previous massa ge 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 undis puted. 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 ma ssage from Barela when he unexpected ly started massaging her i nner thigh. She testified that she felt “very uncomfortable” because she had never had a massage therapist do that in previous ma ssages, and she “didn’t know how to re spond. ” 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.”

2Cite as: 2015 UT 22 Opinion of the Court

¶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 n ot physically resist or verbally tell Barela “no” ; she said nothing at all

. Instead, she clung

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

she was alone , and because the only other person in the massage parlor was a male receptionist

. She repeatedly stressed that “ev erything happened very fast.” She elaborated that she “checked out,” “kind of withdrew,” and “was scared.” When asked to e xplain 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 mas sage” and left the

room. K.M. got up as “quickly as [she] could,” wiped herself with a towel, and got dressed. She tes tified 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 accep ted. 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 s he tel ephoned her friend, who described her as “frantic” and “very u pset.” She returned home to her partn er , 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 exami ning sexual assault victims. The nurse found semen in K.M.’s vag ina , which was identified as Ba rela’s through DNA testing

. A ccording to t he 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 i njury , while explaining that only t wenty to thirty percent of assault victims display genital injuries

. The nurse also testified that som etimes 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 th at K.M. had

been the instigator and that the sex was consen sual . 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 e xplanation of this theory, the defense presented evidence that K.M.

3S TATE v. B ARELA Opinion of the Court

and Trista had one child together (conceived by K.M. through a rtificial insemination ), and that a t the time of the massage K.M. was taking fertility medication and had been artificially ins em inated only a few days earlier . The evidence also indicated that the

s perm donor was a n 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 wo uld

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 th e plausibility of K.M.’s

version of events . First, the defense highlight ed elements of K.M.’ s testimony that were allegedly inconsistent with her previous a ccounts of the rape : (a) that K.M. had told the nurse that Barela had massaged her geni tals 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 fi nger 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 , characteri zing 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 f rom Barela and checked out of the massage

studio as normal and left a tip , without appearing (to the rece ptionist) 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 ar guably 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 t he defense argued that if the ra pe occurred quickly as K.M. had indicated

, it
would stand to reason that she would have suffered genital inj ury.

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

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

1

. The defendant, Robert K. Barela,

2. Intentionally or knowingly;

4Cite as: 2015 UT 22 Opinion of the Court

3. Had sexual intercourse with K.M.;

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

¶14 Instruction 14 quoted a large portion of Utah Code se ction 76

- 5

- 406, which lists “circumstances” in which “[a]n act of

sexual intercourse .

. . is without the consent of the victim.” T h e list in Instruction 14 d id not make express reference to a circu mstan ce 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 e xist

. ” And the prosecutor told the jury that “ultimately it is up t o you to determine if after listen ing to the facts consent exists in this

case.”

¶15 The jury found Barela guilty

. Barela thereafter re tain ed

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

. T he district court declined to issue the subpoena, con cluding that the request wa s not reasona bly ce r tain 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 t he su bpoena request would be mooted if thos e 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 nonco nsent 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 assert ed

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

to challenge evidence h armful to Barela, in failing to advance a mistake of fact defense, in failing to request a mistake of fact i nstruction, 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 no nconsent. The district court rejected each of these arguments and

denied Barela ’s motion.

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

of his motion in the district court. We consider each of his arg u5S TATE v. B ARELA Opinion of the Court

ments under well

- settled standards of review

— yielding deference to the jury’s determination of the sufficiency of the evidence 1 but addressing the legal questions he raises de novo

. 2

II

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

Ba rela’s claim of ineffective assistance in counsel’s failure to pr esent 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 o bject to the j ury instruction), we find reversible error, as we conclude that re asonable 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 pr oceed to consider two other legal issues raised by Barela that may be implicated on remand . Thus, without reaching Barela’s asse rtion of insufficiency of the evidence of noncon sent, we address a threshold interpretive question implicated by this argument

— regarding the nature and application of the principles of nonco nsent set forth in Utah Code section 76

- 5

- 4 0 6. And finally, without reaching the merits of Barela’s post

- trial req uest for a medical re cords subpoena under rule 14(b) of the Utah Rules of Criminal Pr ocedure , 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 re asonable jury could accept” (internal quotation marks omitted)).

2 Man zanares 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.”).

6Cite as: 2015 UT 22 Opinion of the Court

A

¶20 Barela asserts two related grounds for his claim of ineffe ctive 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, she

said” approach

— in urging the jury simply to believe Barela’s st ory that K .M. was the instigator and to reject K.M.’s contrary a ccount

. 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 ot her word s 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 instru ction 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 s uperior given the actual results of trial. It is whether a reasonable, competent lawyer could have chosen the strategy that was e mployed 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 o bject 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 analys is proceeds. We may not evaluate counsel’s conduct from the hin dsight

- biased vantage point of the appeal. Instead, we must consi der whether counsel’s decision to proceed with the “he

- said, she

said” 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 antic ipate 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, i nstead of just relying on Barela’s account and discounting K.M.’s,

7S TATE v. B ARELA Opinion of the Court

counsel could have openly entertained the possibility that K.M. was telling the truth, and invited the jury (through witness exa mination and in closing) to nonetheless acquit on the ground that he might have been the instigator but mis taken as to whether she

consent ed . 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 pri ncipal theory. The damage would ensue from the fact that the a lternative 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 d efense counsel for avoiding this risk and sticking with a single, straightforward defense on appeal. See Archuleta v. Galetka , 201 1

UT 73 , ¶ 96 , 2 6 7 P.3d 232 ( “ [R] easonably informed strategic

choices are almost unassailable ”).

¶25 Yet that same analysi s cannot excuse counsel’s failure to object to Instruction 13. That instruction, a s quoted above, ident ified 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 T his instruction was in error. In asking the jury to consi der whether Barela “intentionally or knowingly” “had sexual inte rcourse with K.M.” and whether the intercourse was “without [her] consent,” the instruction implie d that the mens rea requir ement (“intentionally or knowingly”) applied only to the act of se xual intercourse, and not to K.M.’s nonconsent. It conveyed that idea by coupling the mens rea requirement directly with th e el ement of sexual int ercourse , 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 l isted 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

8 con’t

.Cite as: 2015 UT 22 Opinion of the Court

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 “knowin gly, intentionally, or recklessly had sexual intercourse,” but also

that he had the requisite mens rea as to the victim’s non consent.
State v. Marchet , 2009 UT App 262, ¶ 23, 219 P.3d 75.

¶27 Instruct ion 13 was in error. And reasonable trial counsel should have objected to it. On this point

, there is no reasonable strategy that could exp lain trial counsel’s performance. Again, a reasonable lawyer could well have decided not to present altern ative theories to the jury

— particularly where (as here) the fallback theory ( reasonable mistake as to nonconsent) could have unde rmined the primary one (the victim was the instigator ). But no re asonable 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 obj ect to Instru ction 13.

¶28 That misstep, moreover, was reasonably likely to have a ffected the verdict. See Strickland , 466 U.S. at 69 6

. The jury appa rently did not accept all of Barela’s story

— of K.M. being the sexual instigator . But that does not foreclose th e possibility that a prope rly instructed jury might still have rendered a verdict in his favor.

on the ground that Marchet is distinguisha ble, and without reac hing the question of whether the instruction in that case was an a ccurate statement of law.

4 See U TAH C ODE § 76

- 2

- 101(1) (“A person is not guilty of an o ffense unless the person’s conduct is prohibited by law ; and the pe rson acts inte ntionally, knowingly, recklessly, with criminal negl igence, or with a mental state otherwise specified in the statute d efining the offense

. . . .” (emphasis added)).

5 See Id. § 76

- 5

- 402(1) ( defining the conduct prohibited by law

as “sexual intercourse w ith another person without the victim’s co nsent ” (emphasis added))

.

9S TATE v. B ARELA Opinion of the Court

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 b asis 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 lea ding 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) r ebuffed 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 su ggests. Infra ¶ 6 1. 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 intentio nal or knowing, and (b) that K.M. did not consent. Bu t 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 som ewhat flirtatious but not the clear instigator (and did n ot ultimately consent) . And even in that event, the jury (as incorrectly instruc ted) 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 s e6 It may well be that “[g]iven” the account offered by K.M., “it is highly probable that a properly instructed jury would have co ncluded 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.

10Cite as: 2015 UT 22 Opinion of the Court

conds.” Infra ¶ 6 2. 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 “t otality 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 som ewhere between K.M.’s and Barela’s accounts. And if a jury so co ncluded, 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 a ccounts . 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 reckles sness as to K.M.’s nonconsent

. We accordingly conclude that cou nsel’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

U TAH R. A PP

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

in a case in which a “new trial is granted,” to “pass upon and d etermine 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 cha llenge to the sufficiency of the evidence on the element of K.M.’s

nonconsent. In challenging the sufficiency of such evidence,

Barela has raise d not only the fact

- intensive question of the suff iciency of the evidence to sustain the jury ’s verdict , but also a

th reshold 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 exhau stive 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 fin ding of nonconsent under this understanding of the statute.

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

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

11S TATE v. B ARELA Opinion of the Court

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

. ¶36 Utah Code section 76

- 5

- 406 is entitled “Sexual offenses against the victim wi thout 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 vi ctim ” 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 c oerces 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 ha s not consented and the actor knows the victim is unconscious, unaware that the act is o ccurring, 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 ap praising the nature of the act or of resis ting it;

(7) the actor knows that the victim submits or partic ipates 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;

12Cite as: 2015 UT 22 Opinion of the Court

(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 pa rent, 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 mo re 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

co unselor, as those terms are defined in this Subse ction (12), the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim re asonably believed that the act was for medically or

pro fessionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been man ifested

.
U TAH C ODE § 76

- 5

- 406

. ¶37 Barela would have us construe this statute as an exhau stive delineation of the metes and bounds of the element of no nconsent. His argument is twofold: (a) that this provision is aimed at defining the element of nonconsent

— i n prescrib ing the “valid theories” that the prosecu tion may use in establishing this el ement; and (b) that the list of valid theories is an exhaustive one.

¶38 We disagree. T he statute does not define nonconsent. I t merely “limits the various theories of consent that might othe rwise 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 non consent , to put it in

te rms of an element of a crime

— is a fact

- intensive, context

dependent question, decided on a case

- by

- case basis. See State v. Myers , 606 P.2d 250, 252 (Utah 1980). To determine whether a vi c13S TATE v. B ARELA Opinion of the Court

tim has truly consented, the fac t finder 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

- estab lished, settled understanding is nowhere overridden by the terms of section 406. The statute nowhere pr escribes any definition of nonconsent. Nor does it purport to set

forth a ny sort of formula or criteria for the establishment of no nconsent. Instead, s ec tion 406 is best understood as prescribing e xceptions to the general rule

— as deem ing certain circumstances beyond the case

- by

- case discretion of the factfinder. Thus, under section 406, the jury is foreclosed from find ing consent by a victim who “expresse[ d] lack of consent through words or conduct” (but really meant “yes”), U TAH C ODE § 76

- 5

- 406(1); in circumstances in which the actor “overcomes the victim through the actual applic ation 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 u nder the age of fourteen

, id . § 76

- 5

- 406(9)

.

7 The “freezing” circumstances of this case are an excellent e xample. Barela may be r ight to say that “freezing or non

participation may well be indistinguishable from normal sexual activity in many women.” B ut that is just another way of saying that the question of consent is highly nuanced and context

dependent. Thus, the outward indicat ors of consent in one context

may suggest nonconsent in an other. 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 i t would be reasonable under t hose circumstances for a jury to infer that the victim’s freezing reaction was indicat ive of no nconsent

— and of the defendant’s knowledge of nonconsent if the defendant was aware of the victim’s past

. But that does not su ggest 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 co ntext.

8 The State has cited this provision in its briefs a s an alternative basis for an affirmance, asserting that even if the statute defines

14 con’t

.Cite as: 2015 UT 22 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 circum stances 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 pro blems 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 b etween “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 ide ntify the sum and substance of all circumstances in which nonco nsent could be established, a jury would b e foreclosed from finding

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

the actor is the victim’s lover (but not spouse) 9 ; or where the po wer of the victim to appraise or con trol his or her conduct was i mpaired by the victim’s accidental ingestion of a substance (not a dministered by the actor)

. 10

¶43 Yet the settled understanding of nonconsent in the crim inal law would easily support a guilty verdict in these circu mstances. In the law of rape, “the essence of consent is that it is gi ven out of free will.” 65 A M

. J UR

. 2 D 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.” U TAH C ODE § 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 S ee Id. § 76

- 5

- 406(7) (indicating that sex is “without the co nsent 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 S ee id . § 76

- 5

- 406(8) ( sex is “without the consent of the vi ctim” where “ the actor intentionally impaired the power of the vi ctim to apprais e or control his or her conduct by administering any substance without the victim’s knowledge” (emphasis added) )

.

15S TATE v. B ARELA 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 B LACK ’ S L AW
D ICTIONARY 1151 (9th ed. 2009) (defining nonconsent as “the r efusal to engage willingly in sexual intercourse”). That is why a victim who outwardly appears to express assent or approval may

not hav e consented under the law

— as her assent is not freely gi ven if it is under circumstances of impairment, and it is not a ma tter 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 no nco nsensual, 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 c onviction under these circumstances, as the y are not precisely covered by section

406. We also reject Barela’s construction on th is 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

foreclose s a jury finding of consent as a matter of public policy. And we base this decision not only on the plain terms of the sta tute, but also on the ground that it also avoids the absurdity of preventing a jury from finding nonconsent in circumstances

proper ly understood to qualify as such.

¶45 W e also reject Barela’s claim that this approach is inco mpatible 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 con cept of no nconsent. 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 subse ctions it must be the actor , and not a defendant charged with abe tting the actor, who is in a position of special trust or entices or c oerces 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 se c16Cite as: 2015 UT 22 Opinion of the Court

tion 406. An instruction misstating those terms is invalid , and p otentially reversible error. But that in no way means that constru ctions of noncons ent 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 cha llenge to the denial of his request for a medical records subpoena

und er 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 claim ed two principal

error s

— one in the district court’s determi nations 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 prod uce exculpatory evidence )

. On the first point Barela assert ed that the terms of the rule do not foreclose a post

- trial request . A nd

on the second he has in sisted that his request was reasonably aimed at uncovering evidence in support of his post

- verdict th e ory 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
quest ion. On its face the rule does leave some limited room for
post

- trial requests. See U TAH R. C RIM

. 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 t hirty 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 deci ding whether to grant a post

- trial request under rule 14(b) . And

su re ly that discretion c ould be exercised in a manner considering whether the information requested cou ld 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 productio n of the records sought under applicable state and federal law.”

U TAH R. C RIM

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

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

17S TATE v. B ARELA J USTICE D UR HAM , dissenting

actually contain exculpatory evidence

. . . favorable to his d efense.” State v. Worthen , 2009 UT 79, ¶ 38

, 222 P.3d 1144 (internal quotation marks omitted)

. And i n order to ensure that no priv ilege d information is released that is unnecessary for discovering exculpatory information, t he request must “identify the records sought with particularity and be reasonably limited as to subject

matter.” U TAH R. C RIM

. 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 stan dards, which will apply if the issue arises again on remand.

———— J USTICE D URHAM , dissenting:

¶ 5 1 I agree that Mr. Barela’s counsel p rovided ineffective re presentation by failing to object to the jury instructions. The i nstru c tions were erroneous because they implied that the State had

to prove only that K.M. did not consent to sexual intercourse r ather 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 i ntentional, knowing, or reckless state of mind regarding the a bsence 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”); U TAH C ODE § 76

- 2

- 102 (“[W]hen t he 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.”)

. ¶ 5 2 I disagree, however, with the majority’s conclusion that

Mr. Barela satisfied the second step of a Strickland ineffective a ssistance 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.

¶ 5 3 “An error by counsel, even if professionally unreason able, does not warrant sett ing aside the judgment of a criminal pr oceeding 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 unpr ofessional errors, the result of the proceeding would have been di fferent. A reasonable probability is a probability sufficient to u n18Cite as: 2015 UT 22 J USTICE D URHAM , dissenting

dermine confidence in the outcome.” Id. at 694. “In making this determination, a court hearing an ineffectiveness claim must co nsider the tota lity of the evidence before the judge or jury.” Id. at
695.

¶ 5 4 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 pe rfor mance was deficient because the attorney failed to object to a potentially confusing mens rea jury instruction during an aggr avated assault trial. Id. ¶¶ 18

– 23. We concluded that the instru ctions given created an unacceptable risk that the jury did not

com prehend the necessity of finding that the defendant intended to cause serious bodily injury. Id. ¶¶ 22

– 23. We upheld the convi ction, however, because we determined that there was not a re asonable probability that a correctly instructed jury would have

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

be drawn from the verdict in Hutchings was that the jury had r ejected the defendant’s testimony and accepted the victim’s test imony that the defendant kicked in the victim’s door, grabbed th e 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 instructi onal error did not

undermine our confidence in the outcome of the trial because a correctly instructed jury likely would have found that the defen dant acted with the requisite mens rea , Hutchings , 2012 UT 50, ¶ 28.

¶ 5 5 We reached a similar conclusion in St ate 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 instru ction that the jury could find the defendant guilty of attempted

murder if the defendant acted either i ntentionally 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 co nvicted of attempted murder if the defendant acted intentionally; a knowing state of mind is insufficie nt. 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 i n19S TATE v. B ARELA J USTICE D UR HAM , dissenting

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

– 23; Casey , 2003 UT 55, ¶¶ 46

– 50.

¶ 5 6 Powell and Casey are factually similar to each other, lea ding this court to hold that the instructional error in each case was

harmless for similar reasons. In Powell , the defendant twice poin ted a gun at the victim’s head and pulled the trigger, but th e 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 l ying 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 tri gger, 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 wa s not a reasonable prob ability that a correctly instructed jury would have come to a diffe rent conclusion. Powell , 2007 UT 9, ¶ 23; Casey , 2003 UT 55, ¶¶ 49

– 50.

¶ 5 7 In summary, Strickland and Utah caselaw require courts to evaluate the totality of the evid ence presented to the jury to d etermine the probability of a more favorable outcome for the d e1 The defendants in Powell and Casey did not raise a Strickland ineffective assistance of counsel argument. Instead, they asserted

that this c ourt should have reviewed the unpreserved instru ctional errors under the plain error doctrine, which require s 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 f avorable 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 .

. . .”)

.

20Cite as: 2015 UT 22 J USTICE D URHAM , dissenting

fendant if defense counsel had provided adequate representation and ensured that the jury had been properly instructed. A convi ction should only be reversed if th is probability of a more favorable

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

Strickland , 466 U.S. at 694.

¶ 5 8 In this case, Mr. Barela asserted that he was innocent b ecause K.M. actively solicited a sexual encounter. Supra ¶ 5

. Al thoug h 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).

¶ 5 9 K.M. testified that Mr. Barela had gi ven 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 l ying 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 yo ur massage,” and left the room.

¶ 6 0 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 co nclude 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 surroun ding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and

21S TATE v. B ARELA J USTICE D UR HAM , dissenting

unjustifiable risk that the circumstances exist or the r esult 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.

U TAH C ODE § 76

- 2

- 103(3). Thus, the test for determinin g whether a criminal defendant acted recklessly involves both a

su b jective and an objective element. First, the defendant must su bjectively 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, re asonable person standard.

¶ 6 1 According to K.M.’s tes timony, 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 instruc ted jury would have been (1) wh ether 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 co n2 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 h e 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

whe ther Mr. Barela acted intentionally, knowingly, or recklessly.

22Cite as: 2015 UT 22 J USTICE D URHAM , dissenting

jecture that K.M. had consented to sex under these facts 3 “const itute[d] a gross deviation from the standard of care that an ord inary person would exercise.” I d.

¶ 6 2 Under this reckless state of mind standard, it is not re asonably probable that a correctly instructed jury would have a cquitted 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 sh e did not engage in flirtatious behavior or even friendly convers ation with him. Although K.M. was required to undress and lie beneath a sheet, a reasonable massage therapist would not pe rceive this as an indication that K.M. consented to sex any more

than a reasonable doctor would perceive a patient’s state of u ndress 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 s econds. 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
onl y 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

devia tion from this standard of care.

¶ 6 3 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 unde r3 Mr. Barela did not testify that he believed K.M. had consen ted 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 clea rly 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 percept ion of whether

K.M. had consented to sex under K.M.’s version of events does not affect my analysis.

23S TATE v. B ARELA J USTICE D UR HAM , dissenting

mine my confidence in the verdi ct. I would, therefore, hold that Mr. Barela cannot satisfy the second step of the Strickland analysis,

and I would affirm his conviction.

24