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State v. Ray

Court of Appeals of Utah

May 4, 2017

State of Utah, Appellee,
Eric Matthew Ray, Appellant.

         Fourth District Court, Provo Department The Honorable Lynn W. Davis No. 101401511

          Margaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant

          Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

          Judge Gregory K. Orme authored this Opinion, in which Judges Stephen L. Roth and Jill M. Pohlman concurred.


          ORME, Judge

         ¶1 Eric Matthew Ray, then twenty-eight years old, engaged in a wholly inappropriate relationship with a fifteen-year-old girl (Victim). Growing out of that relationship, Ray was charged with several sexual offenses and, after a jury trial, was found guilty of forcible sexual abuse, a second degree felony. See Utah Code Ann. § 76-5-404(2)(a) (LexisNexis 2012). He was acquitted of a charge of object rape, and the jury could not reach a verdict on two counts of forcible sodomy. Because trial counsel provided Ray ineffective assistance by failing to request a jury instruction explicating the legal meaning of a key phrase within the elements instruction for the crime of which he was convicted, we reverse and remand for a new trial.


         ¶2 This case began innocently enough when Ray, then a law student in Illinois, inadvertently sent a text message to a wrong number. Victim, with whom he was not then acquainted, was the recipient of that text. Following this initial contact, Ray and Victim began an ill-advised relationship through continued (and frequent) text messages. Their relationship progressed, and eventually both parties affirmed their love for each other and their ultimate desire to wed. Ray decided to visit Utah to meet Victim during his spring break.

         ¶3 The pair met in front of Victim's school, and Ray drove her to his hotel, where they spent a considerable amount of time together over the next several days. On the first day, Ray kissed Victim, ‚and then there was a lot of kissing and making out going on." According to Victim, the ‚making out" involved intense kissing, with Ray touching her breasts and pubic area over her clothing. This went on for several hours.

         ¶4 The following day, the activities grew more sexual in nature. In particular, Ray and Victim again kissed on the bed, but this time they wore only their underwear. According to Victim, Ray ‚momentarily" touched under her bra and the front and back of her ‚private area" over her underwear. Victim testified that she touched Ray's ‚private area" over his underwear and gave him a ‚hand-job."

         ¶5 Two days later, Ray again took Victim to his hotel room, which he had decorated with flower petals and some thirty candles. Among other activities, Victim showered in Ray's hotel bathroom, shaved her pubic area (per Ray's earlier request via text message), and then exited the bathroom, naked, to find Ray, also naked. They kissed, standing together nude, before moving to Ray's bed where they continued kissing in the nude. Although they never engaged in vaginal intercourse, Victim testified that Ray touched the outside of her vagina. This testimony was contrary to what the prosecution told the jury to expect in its opening statement, namely that Victim would testify that Ray digitally (and painfully) penetrated her vagina.[1] Afterward, they watched a movie together while still naked.

         ¶6 After going out for lunch at a nearby fast-food restaurant, they returned, undressed again, and kissed some more. According to Victim, Ray asked her if she wanted to have intercourse with him, but Victim said she ‚wasn't ready." Victim also testified that Ray then discussed with her how far he thought they could go ‚without getting in trouble with the law." That day, the last day of their tryst, Ray gave Victim ‚a candle, a tee shirt, and a vibrator" to remember him by, and Victim gave Ray a shirt.

         ¶7 Shortly after Ray returned to Illinois, Victim became severely ill with meningitis and was hospitalized. During her hospitalization, Victim's parents discovered her apparent involvement with a much older man, but they initially believed the relationship was limited to communication via the internet. After making this discovery, Victim's parents sent a message to Ray telling him to ‚leave [Victim] alone." They also contacted a family friend, who was a police detective, about the matter.

         ¶8 The detective visited the hospital and interviewed Victim. Victim, though ‚groggy" and heavily sedated, told the detective about her and Ray kissing and his having attempted to touch her vagina, but she did not then claim that any other sexual contact occurred. The detective continued his investigation, taking Victim's phone and assuming her identity in text-message and Facebook conversations with Ray. During the course of these conversations, Ray confided in ‚Victim" that he had deleted many of the photos Victim had sent him because he was afraid ‚the police were coming after [him], " even though he was sure his conduct had ‚not violated any laws."

         ¶9 When ‚Victim" asked Ray via text message why he was so afraid of her ‚telling on [him], " Ray texted back that ‚it would cause unnecessary complications in my life."[2] ‚Victim" wondered whether she might be pregnant, but Ray affirmed, ‚[W]e didnt have sex." After ‚Victim" responded, ‚yeah but you touched me there what if sperm was on your hand, " Ray only replied, ‚your parents would have found a way to get me arrested." Ray did note, however, that ‚we wanted to [have sex] when we were kissing, " ‚but you wanted to . . . stay a virgin and I didnt want to hurt you."

         ¶10 In an effort to lure Ray into making a more incriminating statement, the detective, still posing as Victim, feigned forgetfulness about the time they spent together. Ray confirmed key details of Victim's account, such as kissing her, the candles and rose petals in the hotel room, watching the movie together, kissing in bed ‚for the rest of the day, " and visiting the fast-food restaurant ...

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