State v. Patterson

• Decision Date: 19 October 2017
• Docket Number: No. 20150791-CA,20150791-CA
• Citation: 407 P.3d 1002
• Parties: STATE of Utah, Appellee, v. Cory R. PATTERSON, Appellant.
• Court: Utah Court of Appeals

407 P.3d 1002

STATE of Utah, Appellee,

v.Cory R. PATTERSON, Appellant.

No. 20150791-CA

Court of Appeals of Utah.

Filed October 19, 2017

Dustin M. Parmley, Attorney for Appellant

Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee

Judge Michele M. Christiansen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

Opinion

CHRISTIANSEN, Judge:

¶1 Defendant Cory R. Patterson challenges his conviction on one count of object rape, arguing that the evidence was insufficient to support the jury's verdict. He does not challenge his convictions on two counts of forcible sexual abuse, stemming from the same incident. We conclude that the evidence adduced at trial was sufficient for the jury to find every element of object rape, and we therefore affirm.

¶2 When we review a challenge to the sufficiency of the evidence, we review the evidence and all inferences that may reasonably be drawn from it in the light most favorable to the jury's verdict. State v. Pullman, 2013 UT App 168, ¶ 4, 306 P.3d 827. We will vacate the conviction only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime. Id. ; see also State v. Hamilton, 827 P.2d 232, 236 (Utah 1992). To conduct this analysis, we first review the elements of the relevant statute. We then consider the evidence presented to the jury to determine whether evidence of every element of the crime was adduced at trial.

¶3 Defendant was charged with object rape. A person is guilty of object rape when the person, "without the victim's consent, causes the penetration, however slight, of the genital or anal opening of another person who is 14 years of age or older,^{[1 ]} by any foreign object, substance, instrument, or device, including a part of the human body other than the mouth or genitals, with intent to cause substantial emotional or bodily pain to the victim or with the intent to arouse or gratify the sexual desire of any person." Utah Code Ann. § 76-5-402.2(1) (LexisNexis Supp. 2016). "Penetration" in this context means "entry between the outer folds of the labia." State v. Simmons, 759 P.2d 1152, 1154 (Utah 1988). On appeal, Defendant's sole claim is that the State did not present evidence that he caused such penetration.

¶4 To determine whether sufficient evidence was presented, we must scrutinize the testimony elicited at trial. And because we review evidence in the light most favorable to the jury's verdict, State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346, we rely primarily on Victim's account of what happened to her, which the jury apparently credited.

¶5 Victim met Defendant at their workplace; Defendant was 23 and Victim was 17. While working together, Defendant regaled her with stories of his military training and his plans to get a concealed carry permit. Victim testified that, after their shifts, Defendant asked Victim if he could walk her to her car. When they got to her car, Defendant told Victim that he wanted to kiss her. He then kissed her for "about a couple minutes" before pushing her into the back seat of her car. Once inside the car, Defendant continued to talk to Victim, who was "start[ing] to get scared, frightened, and ... was still unsure of what to do or how to act." Victim testified that she did not think about running away at that point, explaining, "[I]n the moment when it's so traumatic, you don't know what to do. You're not really in control of your body." She also testified that she was concerned about "what he said about the military [training] before and about his conceal[ed] carry permit." Defendant then resumed kissing Victim.

¶6 Victim testified that, after about five minutes, "[t]he kissing got more intimate, and then he undid my pants, and he put his hand down my pants and started touching my vagina and moving his hand around that area." Victim further testified, "[W]hen he started trying to put his fingers up my vagina I told him to stop, and he kept saying, ‘No, no, it's okay. It's okay.’ " Victim repeated her plea for Defendant to stop, and "he kind of moved his fingers back and just started touching around the area instead of putting his fingers up, instead of penetrating."

¶7 Defendant then opened his pants and "used [his] hand to grab my hand, and caress his penis and move it up and down." Victim testified that whenever she tried to let go, Defendant would "put[ ] my hand back onto his penis. After a while he noticed that I didn't want to do that; and after I told him to stop, he just noticed that. So he finished himself off. Then he had lifted up my shirt and moved my bra up and touched my breast."

¶8 At this point in Victim's testimony, the prosecutor asked Victim to provide more detail about the earlier touching. Specifically, the prosecutor asked Victim to "describe where on your vagina he touched." Victim testified, "He touched the general area. Then when he was trying to put his fingers up he separated the labia" using "[j]ust one hand, his two fingers." Victim further testified, "It really hurt. I had never felt anything like that before."

¶9 The question before us is whether a reasonable jury, after hearing this testimony, could find beyond a reasonable doubt that Defendant caused "penetration, however slight, of [Victim's] genital ... opening." See Utah Code Ann. § 76-5-402.2(1) (LexisNexis Supp. 2016). We therefore review the evidence in detail, bearing in mind that the evidence presented to the jury must speak to every element of the offenses charged to ensure that the jury's verdict does not rest on speculation:

[N]otwithstanding the presumptions in favor of the jury's decision[,] this Court still has the right to review the sufficiency of the evidence to support the verdict. The fabric of evidence against the defendant must cover the gap between the presumption of innocence and the proof of guilt. In fulfillment of its duty to review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict, the reviewing court will stretch the evidentiary fabric as far as it will go. But this does not mean that the court can take a speculative leap across a remaining gap in order to sustain a verdict.

State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94 (first alteration in original) (citation and internal quotation marks omitted). "Sex crimes are defined with great specificity and require concomitant specificity of proof." State v. Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827 ; accord People v. Paz, 10 Cal.App.5th 1023, 1030–31, 217 Cal.Rptr.3d 212 (2017) (certified for partial publication at 217 Cal.Rptr.3d 212 ) ("In all sex-crime cases requiring penetration, prosecutors must elicit precise and specific testimony to prove the required penetration beyond a reasonable doubt." (citing Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827 )).

¶10 The Utah Supreme Court's decision in State v. Simmons is instructive to our analysis. See generally 759 P.2d 1152 (Utah 1988). There, the supreme court considered the crime of unlawful sexual intercourse which, like object rape, has "penetration" as an element. Id. at 1154. The supreme court held that a victim's testimony that the defendant "put the tip of his penis ‘on’ her labia" was insufficient to support conviction when the victim failed to "testify that [the defendant] put his penis between the outer folds of her labia." Id. (noting that the jury may have been confused by testimony regarding prior incidents where the defendant did"place his penis between [the victim's] outer labial folds" and "penetrated the vaginal canal").

¶11 Similarly, in State v. Pullman, this court vacated a defendant's conviction for sodomy on a child because the victim's testimony "describ[ing] a sexual act involving Pullman's penis and her buttocks" did not satisfy the statutory element of "touching the anus." 2013 UT App 168, ¶ 16, 306 P.3d 827 (emphasis, citation, and internal quotation marks omitted). This court explained that the victim's testimony that "Pullman ‘tried to take [her] panties off and stick his dick into [her] butt’ and that ‘it hurt’ " was " ‘sufficiently inconclusive ... that reasonable minds must have entertained a reasonable doubt’ as to whether Pullman's act involved the touching of her anus." Id. (alterations in original) (citation omitted).

¶12 Here, the testimony does not explicitly describe the challenged element of the offense—"penetration, however slight." See Utah Code Ann. § 76-5-402.2(1). Victim testified that Defendant was "trying to put his fingers up" her vagina until she repeated her plea for him to stop. Victim further testified that, at that point, Defendant "started touching around the area instead of putting his fingers up, instead of penetrating." And when asked by the prosecutor to "describe where on your vagina he touched," Victim responded that Defendant had touched "the general area" and that he "separated the labia" using "[j]ust one hand, his two fingers." But the State did not elicit Victim's testimony as to whether Defendant's fingers actually penetrated between her labia, however slightly.²

¶13 Because Victim's testimony did not explicitly establish that Defendant penetrated Victim, we consider next whether the jury could have reasonably inferred that Defendant penetrated Victim. The State asserts that the jury could have inferred from her testimony that "Defendant's fingers entered, however slight[ly], between the outer folds of [Victim's] labia." (First alteration in original) (citation and internal quotation marks omitted). Defendant argues that such a finding amounted to speculation and was therefore not a reasonable inference.

¶14 The resolution of this issue turns on the difference between a permissible inference and impermissible speculation. "This is a difficult distinction for which a bright-line methodology is elusive." Salt Lake City v. Carrera, 2015 UT 73, ...