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State v. Cady

Court of Appeals of Utah

January 11, 2018

State of Utah, Appellee,
Michael Aaron Cady, Appellant.

         Third District Court, Salt Lake Department The Honorable Katie Bernards-Goodman No. 131903414

          Joanna E. Landau, Michael D. Misner, Elise C. Lockwood, and Diana K. Pierson, Attorneys for Appellant

          Sean D. Reyes and Marian Decker, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.


          MORTENSEN, Judge:

         ¶l No means no. So does "unh-unh, " especially when accompanied by a host of other nonverbal cues-such as pushing an assailant away, turning away from him, crying, and curling up in fetal position. When Defendant Michael Aaron Cady ignored Victim's several expressions of nonconsent, he committed object rape. He now challenges a jury's conviction of him for that crime, arguing the evidence was insufficient to support a conclusion (1) that Victim did not consent to the encounter or (2) that he was reckless with regard to her nonconsent. He also argues that because the jury returned inconsistent verdicts, his conviction must be reversed. We disagree and affirm his conviction.


         ¶2 Victim was friends with Defendant's wife when she stayed on the couple's couch one evening. Another friend slept, "passed out" on the floor nearby. Victim had not yet fallen asleep when Defendant came into the living room, knelt down beside her, and started "rubbing her midsection over her blanket." Victim was turned away from Defendant, facing the back of the couch. Defendant proceeded to touch Victim under the blanket, whisper something in her ear, and kiss her shoulder and neck. Victim's response to these advances was to push his hand off of her and say "unh-unh." Defendant then tried to pull Victim's pants down. Victim shook her head and held onto her pants, curling up her legs.

         ¶3 Defendant eventually succeeded in pulling Victim's pants down and "got behind [Victim] on the couch, where [her] legs were folded towards [her] belly, " so Victim tried to push him away with her arm and leg. Rather than leave her alone, Defendant twisted Victim's arm behind her, slapped her arm down, and then Victim felt something rubbing against her vagina and buttocks. Defendant next inserted something "very sharp" into Victim's vagina, got up, and left the room. While Victim did not testify as to what this sharp object was-only that it did not feel like a penis-Defendant acknowledged in a police interview (which was presented to the jury) that "he had put his fingers in [Victim's] vagina." We thus talk in terms of digital penetration throughout this opinion.

         ¶4 For this incident, the State charged Defendant with object rape. A jury convicted him on that charge.

         ¶5 Separate from this crime, there were two additional sexual encounters between Defendant and Victim. The circumstances surrounding those encounters are pertinent insofar as they relate to Defendant's claim that Victim's account of the object rape was inherently improbable. One of these encounters occurred five minutes after the object rape. The other had taken place more than a year before.[1]

         ¶6 After inserting his fingers into Victim's vagina, Defendant left the room for approximately five minutes. When he came back, he had sex with Victim. Victim maintained that the sex was not consensual. She testified that she tried to pull her pants back up, was crying, and remained in fetal position. We refer to this encounter as the April incident.

         ¶7 More than a year before the object rape, Defendant and Victim had had sex, which Victim maintained was nonconsensual. During that earlier incident, Victim also had been staying on Defendant's couch. Defendant entered the living room after his wife had gone to bed and curled up on the couch behind Victim. Victim testified that she had closed her eyes and remained quiet. Defendant pulled down Victim's pants, rubbed his penis around her vagina and buttocks, and then inserted his penis into her vagina. During penetration, Victim testified, she had started crying and reached behind her to push Defendant away, "but it didn't work." After Defendant got up, saying something like "thanks for a great night, " he returned to the bedroom. Victim pulled her pants back up and remained on the couch crying. We refer to this encounter as the January incident.

         ¶8 Victim reported all three incidents to the police on the morning after the object rape. Based on her assertion that she had not given her consent to any of the encounters, the State charged Defendant not only with object rape but also with two counts of rape. At trial, the jury acquitted Defendant of the two rape charges. He now appeals his conviction for object rape.


         ¶9 The focus of this appeal is consent-whether the State proved beyond a reasonable doubt Victim's lack of consent to digital penetration and Defendant's mental state as to her lack of consent. More particularly, Defendant contends that because the evidence of nonconsent was not credible and thus was insufficient to support a conviction for object rape, that conviction should be overturned. When on appeal a defendant argues that there was insufficient evidence to support his or her conviction,

we may reverse only when it is apparent that there is not sufficient competent evidence as to each element of the crime charged. Our review of the evidence itself is deferential. We may reverse a verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that [the] defendant committed the crime for which he or she was convicted.

State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719 (cleaned up).[2]Necessary to our analysis, then, are the elements of object rape.

          ¶10 To be found guilty of object rape under the facts of this case, Defendant must have (1) caused the penetration, however slight, of Victim's genital opening (2) without her consent (3) by any foreign object, including part of the human body other than the mouth or genitals (4) with intent to cause substantial emotional or bodily pain to Victim or with the intent to arouse or gratify the sexual desire of any person. See Utah Code Ann. § 76-5-402.2 (LexisNexis Supp. 2017). Because Defendant acknowledged that he had put his fingers in Victim's vagina, neither element (1) nor (3) was in dispute. See id. And because Defendant maintained that the encounter was consensual, he seems to, at least implicitly, acknowledge that he did so "with the intent to arouse or gratify the sexual desire of any person." See id. But he challenges the evidence of his mental state when it comes to the general mens rea for object rape. He specifically argues that the State "failed to prove [Defendant] acted recklessly as to [Victim's] non-consent to digital penetration, as he did not 'consciously disregard[] a substantial and unjustifiable risk that' [Victim] did not consent to the digital penetration." (Quoting Utah Code Ann. § 76-2-103(3) (LexisNexis 2012).) We thus first tackle the question whether sufficient evidence supported the jury's finding that Victim did not consent. Because we answer that question in the affirmative, we then consider whether sufficient evidence supported the jury's finding that Defendant acted recklessly with regard to that lack of consent. Finally, we address Defendant's contention that inconsistent verdicts render his conviction unsupported.

         I. Nonconsent

         ¶11 The evidence at trial was sufficient to support a finding that Victim did not consent to digital penetration. A victim might "express[] lack of consent through words or conduct." Utah Code Ann. § 76-5-406(1) (LexisNexis Supp. 2017). "Nonconsent cannot be determined simply by asking whether a person physically fought back or attempted to escape." State v. Reigelsperger, 2017 UT App 101, ¶ 80, 400 P.3d 1127. Rather, "[t]he essence of consent is that it is given out of free will, and determining whether someone has truly consented ...

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