State v. Ray

• Decision Date: 09 March 2020
• Docket Number: No. 20170524,20170524
• Parties: STATE of Utah, Petitioner, v. Eric Matthew RAY, Respondent.
• Court: Utah Supreme Court

469 P.3d 871

STATE of Utah, Petitioner,

v.Eric Matthew RAY, Respondent.

No. 20170524

Supreme Court of Utah.

Heard April 11, 2018

Filed March 9, 2020

Rehearing Denied July 13, 2020

Attorneys:¹

Sean D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Solic. Gen., Salt Lake City, for petitioner

Douglas J. Thompson, Provo, for respondent

Justice Petersen authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

On Certiorari to the Utah Court of Appeals

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 Eric Matthew Ray was convicted of forcible sexual abuse of R.M., who was fifteen years old at the time. He appealed the conviction, and the court of appeals concluded Ray's trial counsel provided ineffective assistance because he did not object to the jury instruction for forcible sexual abuse. The instruction included an option to convict Ray if he took "indecent liberties" with R.M., but it did not define that phrase. The court of appeals concluded counsel was ineffective because he did not object to the jury instruction and ask the district court to either omit the phrase "indecent liberties" or define it. The question before us is whether the court of appeals erred in this determination.

¶2 Under the circumstances here, we conclude defense counsel's performance was not deficient. Accordingly, we reverse and reinstate Ray's conviction.

BACKGROUND²

¶3 Ray, a twenty-eight-year-old man who was attending law school in Illinois, accidentally texted R.M., a fourteen-year-old girl living in Utah. Although Ray had texted the wrong number, the two continued communicating via text messages, social media, and eventually telephone. Over time, R.M. started to have romantic feelings for Ray. He reciprocated. They discussed sex, love, and marriage. And eventually, Ray flew to Utah over his spring break to meet R.M. in person. At the time of Ray's visit, R.M. was fifteen years old.

¶4 On the first day of Ray's visit, he picked up R.M. from school and took her to his hotel room. They spent hours kissing on his bed, and he touched her "bra" and "underwear areas." Finally, he dropped her off on a corner near her home. Over the next three days, Ray continued to pick up R.M., take her to his hotel room, and engage in progressively serious sexual activity—except for one day when R.M. was grounded and only did homework in Ray's rental car for about an hour.

¶5 Although R.M. kept her interaction with Ray a secret from her family, her parents eventually learned of it. Less than a week after Ray left Utah, R.M. became extremely ill and was hospitalized for ten days. When Ray learned R.M. was sick, he repeatedly contacted the hospital and R.M.’s parents about her. He claimed to be a school friend named "Edward Matthews."

¶6 When "Edward Matthews" mentioned knowing about an infection in R.M.’s vaginal area, R.M.’s mother considered this a "red flag." Looking for more information, R.M.’s mother found an Edward Matthews on a list of R.M.’s Facebook friends. She then found a picture that was tagged with both Ray's name and the name Edward Matthews. R.M.’s phone also contained photos of Ray.

¶7 R.M.’s family contacted a neighbor who in turn contacted a detective, informing the detective that the family was seeking help in uncovering the connection between R.M. and Ray. The detective went to the hospital and spoke with R.M.’s parents. He then spoke with R.M., but for only about ten minutes because she "was in a sedated state," was "slow to respond," and her answers "started getting" incoherent. R.M. disclosed some information about Ray and her contact with him.

¶8 The detective also posed as R.M. on Facebook and engaged in a conversation with Ray, attempting to elicit more information about Ray's contact with R.M.

¶9 Ultimately, the State charged Ray with one count of object rape, two counts of forcible sodomy, and one count of forcible sexual abuse. In the district court proceedings, R.M. testified at a preliminary hearing and at trial.

¶10 During Ray's trial, R.M. testified about what took place when Ray visited Utah. On the first day, a Wednesday, Ray met R.M. at her school and took her to his hotel room. There, Ray gave R.M. her first kiss. For hours the two talked, kissed, and lay on the bed together. Ray also touched R.M.’s "bra" and "underwear areas." He dropped her off at a corner near her house over five hours later.

¶11 On Thursday, Ray again met R.M. at her school. This time, they were joined by R.M.’s friend and the friend's boyfriend. As her friends swam in the hotel pool, Ray and R.M. went to Ray's room, disrobed to their underwear, lay on the bed, and kissed for about an hour. Ray touched R.M.’s breasts, both over and under her bra. He also touched R.M.’s buttocks and her vagina over her underwear. R.M. touched Ray's "private parts" over his underwear, but she refused his request for a "hand job."

¶12 The two then got dressed and played a game Ray had brought—"Sexy Truth or Dare"—with R.M.’s friend and her boyfriend. Ray also showed them photos of sex toys. He drove them home, again dropping R.M. off at the corner near her house.

¶13 On Friday, Ray again met R.M. at her school. But she was grounded that day, so she just did homework for a short while in Ray's car.

¶14 Early Saturday morning, Ray texted R.M. about getting together. They arranged for him to pick her up as she walked toward her school, and he again took her to his hotel room. Ray had decorated his room with flower petals and candles. They started "making out." After kissing awhile, R.M. took a shower and shaved her pubic area with Ray's razor. In an earlier conversation, Ray had asked her to do this. She returned to the room naked. Ray was also naked. As they kissed on the bed, Ray touched outside R.M.’s vagina with his fingers. Still naked, the two watched the movie "New Moon" from the Twilight Series. Ray mentioned "a few times" how far they "could go without getting in trouble with the law."

¶15 R.M. testified that Ray then performed oral sex on her, and she reciprocated. ³

She also testified that Ray asked her if she wanted to have sexual intercourse, but when she said she "wasn't ready," he said "he was okay to wait." Ray then gave R.M. "a candle, a tee shirt, and a vibrator." She testified that Ray told her to "think of him" when she used it.

¶16 The State admitted into evidence Ray's electronic conversations with the detective posing as R.M. Ray's statements corroborated portions of R.M.’s testimony. Ray referenced: that the two had "kissed" and "made out"; getting "into bed and kiss[ing] for the rest of the day"; playing "truth or dare"; and "the buzzy toy."

¶17 Ray's defense was that he had not engaged in any sexual activity with R.M. In the alternative, he argued that if the jury did believe R.M.’s testimony, any sexual activity was consensual. Ray developed his defense through cross-examination of the State's witnesses, including R.M. Defense counsel cross-examined R.M. about variances in the statements she made to the detective, to family members, during her testimony at the preliminary hearing, and during her testimony at trial.⁴

¶18 With regard to the forcible sexual abuse count, the district court instructed the jury that in order to find Ray guilty, the jury must find that each of the following essential elements of the crime were proven beyond a reasonable doubt:

1. That the defendant, Eric Ray;

...

4. Did intentionally, knowingly, or recklessly;

5. Touched [sic] the anus, buttocks, or any part of the genitals of another, or touched [sic] the breasts of a female person 14 years of age or older, or otherwise took indecent liberties with the actor or another [;]

6. With the intent to arouse or gratify the sexual desires of any person[;]

7. Without the consent of the other, regardless of the sex of any participant.

(Emphasis added.) To establish that R.M. did not consent, the State had to prove that she was "14 years of age or older, but younger than 18 years of age"; Ray was "more than three years older than [R.M.]"; and Ray "entice[d] or coerce[d] [her] to submit or participate." See UTAH CODE § 76-5-406(11) (2010).⁵

¶19 The district court did not provide a definition of "indecent liberties." And defense counsel did not object to this instruction.

¶20 The jury found Ray guilty of forcible sexual abuse, but acquitted Ray of object rape and could not reach a verdict on the two counts of forcible sodomy. Ray appealed.

¶21 In the court of appeals, Ray made a number of arguments, including that his trial counsel was ineffective for failing to object to the jury instruction for forcible sexual abuse. The court of appeals agreed, and it reversed Ray's convictions and remanded for a new trial.

¶22 We granted the State's petition for certiorari. We exercise jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶23 "On certiorari, this court reviews the decision of the court of appeals for correctness, giving no deference to its conclusions of law." State v. Baker , 2010 UT 18, ¶ 7, 229 P.3d 650. "When we are presented with a claim of ineffective assistance of counsel, we ‘review a lower court's purely factual findings for clear error, but [we] review the application of the law to the facts for correctness.’ " Ross v. State , 2019 UT 48, ¶ 65, 448 P.3d 1203 (alteration in original) (citation omitted).

ANALYSIS

¶24 The only question before us is whether the court of appeals wrongly concluded that Ray's counsel provided ineffective assistance at trial. The Sixth Amendment to the United States Constitution guarantees criminal defendants the effective assistance of counsel, and we evaluate claims of ineffective assistance under the standard articulated by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Sessions , 2014 UT 44, ¶ 17, 342 P.3d 738. To prevail on this claim, Ray must demonstrate that (1) his counsel's...