Background
The Utah Court of Appeals declined to overrule State v. Heath, its precedent defining “genital opening” for Utah’s object-rape statute. The court held that evidence of touching the complainant’s clitoris was sufficient under that precedent and rejected a series of related evidentiary, instruction, unanimity, lost-evidence, and ineffective-assistance claims. Raymond Black’s convictions were affirmed.
Black was accused of sexually assaulting his fifteen-year-old niece at a family reunion by restraining her, touching her breasts, and reaching inside her clothing. Her testimony led to charges including object rape and forcible sexual abuse. Before trial, Black proposed expert testimony about female anatomy and whether the folds near the clitoris constitute a genital opening, seeking to distinguish or undermine Heath.
The trial court excluded portions of that testimony as conflicting with controlling law or likely to confuse the jury. After conviction, Black argued that Heath was wrongly decided, the evidence did not establish penetration of a genital opening, the jury should have received a lesser-included-offense instruction, and the verdict presented unanimity concerns. He also sought dismissal based on destroyed body-camera video that had depicted the reunion location.
The Court’s Holding
Judge Mortensen’s opinion followed horizontal stare decisis and found no basis for one court-of-appeals panel to discard Heath. Under that decision, the statutory concept of genital opening encompasses the relevant anatomy, so testimony that Black touched the clitoris supported the object-rape conviction. That legal conclusion also defeated connected claims concerning exclusion of the anatomy expert and refusal to instruct on a lesser offense.
The court found no jury-unanimity defect requiring action by the trial judge or an objection from defense counsel. Black’s arguments did not establish that jurors could have convicted on legally distinct acts without agreement in a manner forbidden by Utah law. Without an underlying error or deficient response, the related ineffective-assistance theory failed.
The destroyed body-camera recording did not warrant dismissal. A defendant first must show a reasonable probability that lost evidence would have been exculpatory, not merely speculate that it might have been useful. Black said the recording showed lighting and layout but did not explain how those details probably favored the defense. Because he established no qualifying loss and no multiple errors, his due-process and cumulative-error arguments also failed.
Key Takeaways
- A court-of-appeals panel will adhere to its own published precedent absent a valid basis for overruling it.
- Evidence of touching the clitoris satisfies Heath’s construction of genital opening for the object-rape statute.
- A lost-evidence claim requires a nonspeculative showing that the missing material probably would have been exculpatory.
Why It Matters
Utah criminal practitioners should treat Heath as controlling unless the supreme court or legislature changes the governing definition. Expert testimony cannot be used simply to offer the jury a legal definition inconsistent with binding precedent, though properly framed anatomical evidence may remain relevant to disputed facts. Counsel requesting lesser instructions should connect the proposed lesser offense to a legally viable view of the evidence under existing definitions.
Black also sharpens preservation of lost-evidence issues. Defense counsel should identify promptly what a missing recording would have shown, obtain testimony about its contents, and explain why the information tends to negate an element or support a defense. General assertions that location footage would have been beneficial will not cross the threshold for constitutional balancing or a dismissal remedy.