District Court, Provo Department The Honorable Derek P.
Pullan No. 151402675
Taliaferro, Attorney for Appellant
D. Reyes and Jeffrey S. Gray, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judges
Michele M. Christiansen Forster and David N. Mortensen
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.
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.
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. Victim, not knowing what treatment was
necessary to relieve her symptoms, "closed [her] eyes
and just waited for it to be over."
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
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.
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. 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.
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]."
4 & 5-Forcible Sexual Abuse and Object Rape
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.
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
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
Incidents with J.T. and E.B.
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.
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.
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.
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).
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."
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.
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."
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.
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).
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.
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.
AND STANDARDS OF REVIEW
Heath raises challenges to the admission of other acts
evidence at trial, the sufficiency of the evidence on all
counts, and the jury instructions.
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)
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)).
In the instances where Heath's sufficiency challenges are
unpreserved, he asks that we review them for plain error and
ineffective assistance of counsel. 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
Finally, Heath's jury instruction challenge is
unpreserved, and he seeks review only under the ineffective
assistance of counsel doctrine. 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 ...