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State v. Heath

Court of Appeals of Utah

November 21, 2019

State of Utah, Appellee,
v.
Dale Harland Heath, Appellant.

          Fourth District Court, Provo Department The Honorable Derek P. Pullan No. 151402675

          Ann M. Taliaferro, Attorney for Appellant

          Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.

          POHLMAN, JUDGE

         ¶1 A woman (Victim) suffered from back pain. She visited Dale Harland Heath's chiropractic offices, where Heath treated her over the course of nine visits. Based on his conduct during some of those visits, Heath was convicted of sexual battery (three counts), forcible sexual abuse, and object rape. Heath appeals and we affirm.

         BACKGROUND[1]

         ¶2 When Victim could not find relief from chronic back pain, her mother recommended that Victim seek treatment from Heath, mother's chiropractor. From October 2012 to December 2012, Victim, then age 20, saw Heath nine times. The first four visits were mostly uneventful, though by the fourth visit she was starting to feel "a little uncomfortable." Heath's conduct at the next four visits forms the basis of Heath's criminal case.

         Count 1-Sexual Battery

         ¶3 On November 3, 2012, Victim visited Heath for the fifth time. To prepare for treatment, she changed into a medical gown but kept her yoga pants on. Heath added "a new massage" on this visit, rubbing Victim's inner thigh with one hand and rubbing "right over [her] vaginal area with the other hand." His hand was "going up and down, back and forth, right over the seam of [Victim's] yoga pants, right on [her] vagina." Victim "opened [her] eyes for a moment," noticed that the lights were off, and asked Heath what he was doing. Heath said he was massaging a psoas attachment.[2] Victim, not knowing what treatment was necessary to relieve her symptoms, "closed [her] eyes and just waited for it to be over."

         ¶4 The rubbing lasted a few minutes, and Victim had an orgasm. She gave no outward indication of it, and Heath acted like "nothing was wrong" and did not say anything. After paying for the visit, Victim "cr[ied] the whole way home" while trying to "explain it away" in her mind.

         Count 2-Sexual Battery

         ¶5 On November 24, 2012, Victim returned for her sixth session with Heath. She decided to return because she "was in a lot of pain" and "didn't really want to believe that it had happened." She trusted Heath, and his treatment had been helping to reduce her back pain.

         ¶6 Heath again massaged Victim's "clitoral or vaginal area" over her clothes. Victim asked what he was doing, and Heath responded that he was working the gracilis muscle.[3] He did this for a few minutes, and Victim had another orgasm. When Victim's sister-who accompanied Victim to her appointment on this occasion-entered the room, Heath moved his hand away from Victim's vagina and massaged her thigh with two hands as he talked to her sister. Heath did not put his hand back on Victim's vagina while Victim's sister was in the room.

         Count 3-Sexual Battery

         ¶7 On December 1, 2012, Victim had her seventh visit with Heath, again after "convincing [herself] that everything was fine" and that she must have "imagined it." Heath started with a stomach massage, which was routine by this point, but then he went "lower and lower than ever before," with his fingers going past her waist "into [her] underpants." Victim was frozen. She did not say anything but felt Heath's fingers "stopping right on the left side of [her] vagina . . . where [her] leg starts." His fingers went "in a circular motion, which would move [the] outer lip of [Victim's] vagina over." At trial, Victim further described this as a touching of her labia majora, which she described as "the starting of the vagina, but not the . . . inner, not the opening, not the clit[oris]."

         Counts 4 & 5-Forcible Sexual Abuse and Object Rape

         ¶8 Victim returned again on December 8, 2012. This visit was the same as the last. Heath went under Victim's underpants and moved his fingers in a circular motion, touching the "outer lip of [Victim's] vagina, moving it around and around and around." Then, Victim clearly felt Heath move one finger over (likely the pinky finger of Heath's right hand), and touch her "right on [her] clitoris . . . in the middle of [her] vagina." Victim flinched, and Heath moved his finger away.

         ¶9 Victim described this touching at trial. The prosecutor asked if Heath had to "go beyond the labia majora to touch [her] clitoris." Victim responded affirmatively. She similarly testified that she "felt" his finger "actually go beyond [her] labia majora."[4]

         ¶10 Victim did not immediately tell anyone what had happened because "if [she] said it out loud then it meant it was real and it really happened, and [she] didn't want to believe it." But a little more than a month later, Victim reported the touching to her mother and then to the police.

         Other Incidents with J.T. and E.B.

         ¶11 Before Victim began visiting Heath in 2012, Heath was treating J.T. in 2011. J.T., a licensed massage therapist, visited Heath for hip and leg pain. Heath worked along the top of J.T.'s pubic bone and then started "grinding back and forth in [J.T.'s] crotch," touching and rubbing her clitoris. J.T. opened her eyes and saw that Heath "looked very different," "like he was . . . enjoying what he was doing." J.T. ended the appointment and never returned.

         ¶12 As a massage therapist, J.T. knew "there's absolutely no reason to" touch that area because there are "no muscles that attach right there." J.T. reported the incident to the police and the Division of Professional Licensing (DOPL). Though DOPL had some concerns, it declined to "investigate the matter any further" or "seek formal action against [Heath's] license." Heath had promised to examine and adjust his practices, and DOPL encouraged him to do so.

         ¶13 Then, in 2015, Heath treated E.B., who visited Heath a total of four times. On the third and fourth visits, Heath touched E.B.'s genital area, including the clitoris, over her clothes. At first it seemed unintentional, but throughout the treatment it became apparent to E.B. that it "was completely intentional" and that "there was no excuse for it." She too filed a complaint with DOPL and reported the incident to the police.

         Procedural History

         ¶14 In 2015, the State charged Heath with sexual crimes against Victim and E.B. The charges with respect to each victim were severed, and the State filed an amended information relating to the five sexual offenses against Victim: three counts of sexual battery, see Utah Code Ann. § 76-9-702.1 (LexisNexis 2017); one count of forcible sexual abuse, see id. § 76-5-404 (2012); and one count of object rape, see id. § 76-5-402.2 (2017).

         ¶15 Heath filed a motion in limine to exclude certain other acts evidence at trial, including testimony from J.T. and E.B., primarily under rule 404(b) of the Utah Rules of Evidence. Under a doctrine of chances theory, the trial court allowed the State to use J.T.'s and E.B.'s testimonies to prove mens rea but not to prove actus reus. When it came to proving actus reus, the court concluded that the State had "failed to prove the foundational requirement of frequency," which it described for purposes of the actus reus as "the frequency with which chiropractors are falsely accused of inappropriate touching during treatment." There was no evidence on this statistic, and the court reasoned that any conclusion on this point "would be nothing more than conjecture."

         ¶16 But regarding mens rea, the court found that the relevant inquiry was "the frequency of [Heath's] involvement in a type of event-the accidental touching of his patients' genitals." Reasoning that "the mistaken touching of another's genitals would be a once in a lifetime event" for the general population and that chiropractors could take precautions to avoid accidental touching that would make chiropractors as a class "indistinct from people generally," the court allowed the other acts evidence to prove mens rea-that is, to prove that Heath touched Victim not by mistake or accident incidental to treatment, but rather with the intent to arouse or gratify sexual desire.

         ¶17 Heath was tried before a jury. Among other witnesses, the State called a doctor of chiropractic (Doctor) to testify about the standard of care practiced by chiropractors in Utah. Doctor opined that chiropractors should "avoid any accidental, incidental or intentional touching of sensitive areas" through "draping techniques" or "physical blockage." He also testified that there would be no medical reason to touch Victim below the "top of the pubic bone."

         ¶18 Heath testified in his own defense. As relevant here, he testified that he did not intentionally touch Victim's vaginal area but that incidental, over-the-clothing touching during the treatment was possible. He also stated that he was unaware that Victim had been sexually stimulated and that she gave no indication that she was uncomfortable. He admitted that there is no reason to intentionally touch a patient's labia or clitoris when treating lower back pain, whether under or over the clothing.

         ¶19 The jury found Heath guilty of all charges. After reviewing this court's decision in State v. Patterson, 2017 UT App 194, 407 P.3d 1002, the trial court on its own motion requested briefing on whether judgment should be arrested on count 5 on the basis that penetration of the genital opening may not have been established. Heath then filed his own motion to arrest judgment, contending that the evidence was insufficient on counts 4 and 5 for forcible sexual abuse and object rape. Specifically, he argued that the State did not prove "penetration" of the "genital or anal opening," as required by the object rape statute. See Utah Code Ann. § 76-5-402.2(1). He additionally argued that, for purposes of forcible sexual abuse, the State did not prove his specific intent "to arouse or gratify the sexual desire of any individual." See id. § 76-5-404(1).

         ¶20 The trial court rejected both arguments. It first stated that penetration "means entry between the outer folds of the labia" and concluded that the evidence was sufficient to show penetration, "meaning [Heath's] fingers entered between the outer folds of [Victim's] labia." It then determined that a reasonable jury could find specific intent for forcible sexual abuse, reasoning that the "nature, duration and progression of the touching described by [Victim] all give rise to a reasonable inference" about Heath's intent to arouse or gratify sexual desire. The court also noted that there was "no medical purpose" for the touching. So concluding, the court declined to arrest judgment.

         ¶21 The trial court sentenced Heath to concurrent prison terms of up to one year on each sexual battery count, one to fifteen years for forcible sexual abuse, and five years to life for object rape. Heath appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶22 Heath raises challenges to the admission of other acts evidence at trial, the sufficiency of the evidence on all counts, and the jury instructions.

         ¶23 Trial courts "are afforded a great deal of discretion in determining whether to admit or exclude evidence." State v. Martin, 2017 UT 63, ¶ 18, 423 P.3d 1254 (cleaned up). Barring an "error of law," we will reverse a trial court's evidentiary decision under rule 404(b) of the Utah Rules of Evidence "only if that decision is beyond the limits of reasonability." Id. (cleaned up); see also State v. Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016 ("[T]he question . . . is whether the [trial court] abused [its] broad discretion in [admitting rule 404(b) evidence].").

         ¶24 We review Heath's sufficiency challenges "under well-settled standards of review-yielding deference to the jury's determination of the sufficiency of the evidence but addressing the legal questions he raises de novo." State v. Barela, 2015 UT 22, ¶ 17, 349 P.3d 676 (cleaned up); see also State v. Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645 (stating that, in any sufficiency challenge, we "review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict" (cleaned up)).

         ¶25 In the instances where Heath's sufficiency challenges are unpreserved, he asks that we review them for plain error and ineffective assistance of counsel.[5] To prevail on plain error review, not only must Heath show "that the evidence was insufficient to support a conviction of the crime charged," he must also show "that the insufficiency was so obvious and fundamental that the trial court erred in submitting the case to the jury." State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. "An example of an obvious and fundamental insufficiency is the case in which the State presents no evidence to support an essential element of a criminal charge." State v. Prater, 2017 UT 13, ¶ 28, 392 P.3d 398 (cleaned up). Further, "an ineffective assistance of counsel claim raised for the first time on appeal presents a question of law," State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (cleaned up), and to prevail on his ineffective assistance of counsel claims, Heath must demonstrate that counsel's failure to raise the sufficiency issues to the trial court's attention was both objectively deficient and prejudicial, see State v. Guzman, 2018 UT App 93, ¶ 55, 427 P.3d 401 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Among other things, the failure to raise futile motions or objections challenging the sufficiency of the evidence does not constitute ineffective assistance. State v. Stringham, 2013 UT App 15, ¶ 5, 295 P.3d 1170 (per curiam).

         ¶26 Finally, Heath's jury instruction challenge is unpreserved, and he seeks review only under the ineffective assistance of counsel doctrine.[6] As explained above, to prevail on this challenge Heath must demonstrate that his counsel performed deficiently with respect to the jury instruction errors and that the ...


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