State v. Barela

• Decision Date: 30 January 2015
• Docket Number: No. 20120476.,20120476.
• Citation: 2015 UT 22,349 P.3d 676
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert BARELA, Defendant and Appellant.
• Court: Utah Supreme Court

349 P.3d 676

2015 UT 22

STATE of Utah, Plaintiff and Appellee

v.Robert BARELA, Defendant and Appellant.

No. 20120476.

Supreme Court of Utah.

Jan. 30, 2015.

Rehearing Denied May 21, 2015.

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.

Opinion

Justice LEE, opinion of the Court:

¶ 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 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 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.”

¶ 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. 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;

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...