                  This opinion is subject to revision before
                    publication in the Pacific Reporter

                               2015 UT 22

                                  IN THE
      SUPREME COURT OF THE STATE OF UTAH
                          ———————
                          STATE OF UTAH,
                        Plaintiff and Appellee,
                                     v.
                         ROBERT BARELA,
                     Defendant and Appellant.
                         ———————
                          No. 20120476
                      Filed January 30, 2015
                         ———————
                     Third District, Salt Lake
                  The Honorable Robin W. Reese
                          No. 091903042
                         ———————
                            Attorneys:
        Sean D. Reyes, Att’y Gen., Christopher D. Ballard,
           Asst. Att’y Gen., Salt Lake City, for plaintiff
           Elizabeth Hunt, Salt Lake City, for defendant
                          ———————
     JUSTICE LEE authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
                    and JUSTICE PARRISH joined.
            JUSTICE DURHAM filed a dissenting opinion.
                        ———————
   JUSTICE LEE, opinion of the Court:
    ¶1 This is an appeal from a conviction of Robert Barela of first-
degree rape. Barela claims that his trial counsel was ineffective in
a variety of ways and asserts error in the district court’s refusal to
issue a subpoena for the victim’s medical records. He also chal-
lenges the sufficiency of the evidence to establish that the victim
of the alleged rape had not consented to sex, an issue that requires
us to interpret the statutes defining nonconsent in the context of a
rape charge.
   ¶2 We reverse, finding ineffective assistance in counsel’s fail-
ure to object to a jury instruction misstating the requirement of
mens rea as applied to the elements of first-degree rape. In revers-
ing on this ground, we decline to reach a number of alternative
grounds raised by Barela. But we do address two such grounds
that implicate matters that may arise on remand, including the
                        STATE v. BARELA
                       Opinion of the Court

interpretation of the statutory standard for nonconsent under
Utah Code section 76-5-406 and the standard for a victim’s medi-
cal records under rule 14(b) of the Utah Rules of Criminal Proce-
dure.
    ¶3 First, without reaching the sufficiency of the evidence to
sustain Barela’s conviction, we interpret the statutory standard of
nonconsent in a manner consistent with the State’s theory on ap-
peal, concluding that section 406 does not establish the sum and
substance of all circumstances amounting to nonconsent, but in-
stead simply prescribes the circumstances in which the legislature
forecloses a jury finding of consent as a matter of public policy.
Second, without reaching the merits of the request for a medical
records subpoena in this case, we clarify the standard that applies
under rule 14(b).
                                 I
    ¶4 Barela had sex with K.M. at a Massage Envy studio, where
Barela was employed as a massage therapist and K.M. was a cli-
ent. K.M. had received one previous massage from Barela at the
studio. And when she arrived on the date in question, she had not
requested Barela as her therapist. K.M. removed all of her clothing
for the massage. During the massage she was covered only by a
sheet and blanket.
    ¶5 That much is undisputed. But as to other details of the
events leading to the sexual encounter, the jury heard two very
different stories. In Barela’s version of the encounter, K.M. became
aroused and initiated sexual contact by humping the table and
grabbing Barela’s crotch. The two then began having sex, in which
K.M. showed active engagement by giving him oral sex, rolling
over on the table, and playing with her breasts.
    ¶6 In contrast, K.M. told the jury that she was receiving a mas-
sage from Barela when he unexpectedly started massaging her in-
ner thigh. She testified that she felt “very uncomfortable” because
she had never had a massage therapist do that in previous mas-
sages, and she “didn’t know how to respond.” Then, “before [she]
knew it,” Barela pulled her to the end of the table, dropped his
pants and penetrated her vagina with his penis. K.M. testified that
“everything happened very fast” and that Barela may have
touched or penetrated her vagina with his finger, but that she
wasn’t sure. She testified that Barela went from rubbing her thigh
to penetrating her vagina within “a matter of seconds.”

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    ¶7 K.M. testified that she had not “flirt[ed]” with Barela, and
did not say or do anything to suggest that she wanted to have sex
with him. She also testified that she did not physically resist or
verbally tell Barela “no”; she said nothing at all. Instead, she clung
to the blanket and “just froze.” She said she felt fearful because
she was alone, and because the only other person in the massage
parlor was a male receptionist. She repeatedly stressed that “eve-
rything happened very fast.” She elaborated that she “checked
out,” “kind of withdrew,” and “was scared.” When asked to ex-
plain what “checked out” meant, K.M. said she just “kind of
froze.”
    ¶8 K.M. testified that she heard Barela make an alarmed (and
profane) exclamation, and then saw him looking at semen in his
hand. Then he told her “this concludes your massage” and left the
room. K.M. got up as “quickly as [she] could,” wiped herself with
a towel, and got dressed. She testified that her main concern was
“getting out of Massage Envy” as quickly as she could. Barela met
her in the hallway, where he offered her water, which she accept-
ed. She “checked out as normal,” told the receptionist the massage
was “fine,” paid her bill (including a tip), and took a mint.
    ¶9 K.M. testified that she then drove away from the massage
studio but pulled over a few blocks away. At that point she tele-
phoned her friend, who described her as “frantic” and “very up-
set.” She returned home to her partner, Trista, who said K.M. was
sobbing, shaking, and hysterical. Trista drove K.M. to the hospital.
At the hospital, K.M. was examined by a nurse trained in examin-
ing sexual assault victims. The nurse found semen in K.M.’s vagi-
na, which was identified as Barela’s through DNA testing. Ac-
cording to the nurse, K.M.’s physical condition was consistent
with K.M.’s account. But she conceded that K.M.’s condition was
also “consistent with consensual sex,” as there was no genital in-
jury, while explaining that only twenty to thirty percent of assault
victims display genital injuries. The nurse also testified that some-
times victims of sexual assault or other shocks have a difficult
time remembering the details of the event.
    ¶10 The defense’s primary theory at trial was that K.M. had
been the instigator and that the sex was consensual. In addition,
the defense also asserted that K.M. had lied about the encounter
in an effort to protect her relationship with Trista. In further ex-
planation of this theory, the defense presented evidence that K.M.


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                       Opinion of the Court

and Trista had one child together (conceived by K.M. through ar-
tificial insemination), and that at the time of the massage K.M.
was taking fertility medication and had been artificially insemi-
nated only a few days earlier. The evidence also indicated that the
perm donor was an African American friend of K.M. and Trista.
Thus, the defense theory was that K.M. had consensual sex with
Barela, worried that she had conceived and that the baby would
resemble him (a “light-skinned Hispanic”), and that a “serious
problem” would ensue when Trista realized that the baby did not
resemble their African American donor.
    ¶11 The defense also challenged the plausibility of K.M.’s
version of events. First, the defense highlighted elements of K.M.’s
testimony that were allegedly inconsistent with her previous ac-
counts of the rape: (a) that K.M. had told the nurse that Barela had
massaged her genitals and told the police that he had penetrated
her vagina with his finger, but at the preliminary hearing she
could not remember whether he had penetrated her with his fin-
ger or with his penis and at trial could not remember whether he
had touched her vagina at all; and (b) that K.M. had explained her
freezing reaction in different ways at different times, characteriz-
ing it alternatively as a result of fear, surprise, or drowsiness.
    ¶12 The defense also asserted that K.M.’s actions after the
sexual encounter were inconsistent with rape. It noted that K.M.
had accepted water from Barela and checked out of the massage
studio as normal and left a tip, without appearing (to the recep-
tionist) to be upset. And the defense emphasized that K.M. had
told Trista that she didn’t know if she was raped because she
didn’t resist, a point arguably consistent with a statement she
made to a police detective—that she didn’t “necessarily . . . even
care if he’s convicted of a crime.” Counsel also reminded the jury
that there was no evidence of vaginal trauma. And the defense
argued that if the rape occurred quickly as K.M. had indicated, it
would stand to reason that she would have suffered genital inju-
ry.
    ¶13 After closing arguments, the jury was given its instruc-
tions. Instruction 13 enumerated the elements of the offense of
rape. It indicated that in order to find Barela guilty of rape the ju-
ry would have to find the following:
       1. The defendant, Robert K. Barela,
       2. Intentionally or knowingly;

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       3. Had sexual intercourse with K.M.;
       4. That said act of intercourse was without the con-
          sent of K.M.
    ¶14 Instruction 14 quoted a large portion of Utah Code sec-
tion 76-5-406, which lists “circumstances” in which “[a]n act of
sexual intercourse . . . is without the consent of the victim.” The
list in Instruction 14 did not make express reference to a circum-
stance in which the victim “freezes.” But in closing argument the
prosecutor asserted that Instruction 14 was not an “exhaustive
list” that “tells you where as a matter of law consent doesn’t ex-
ist.” And the prosecutor told the jury that “ultimately it is up to
you to determine if after listening to the facts consent exists in this
case.”
   ¶15 The jury found Barela guilty. Barela thereafter retained
new counsel. His new counsel asked the court to issue a subpoena
of K.M.’s medical records under rule 14(b) of the Utah Rules of
Criminal Procedure, in order to support his post-verdict theory
that K.M. was under the influence of prescription medication at
the time of the massage. The district court declined to issue the
subpoena, concluding that the request was not reasonably certain
to provide exculpatory evidence. The court also noted that the
timing of the request was “significant,” as it had not yet heard the
motion to arrest judgment or motion for new trial, and the sub-
poena request would be mooted if those motions were denied.
    ¶16 Barela then filed a motion for new trial. In support of that
motion, Barela asserted first that the evidence of K.M.’s noncon-
sent was insufficient, particularly under Barela’s reading of Utah
Code section 76-5-406 (as providing an exclusive list of ways the
prosecution may establish nonconsent). Second, Barela asserted
that trial counsel had been ineffective in a variety of ways: in fail-
ing to introduce evidence corroborative of Barela’s story, in failing
to challenge evidence harmful to Barela, in failing to advance a
mistake of fact defense, in failing to request a mistake of fact in-
struction, and in failing to object to Instruction 13 on the ground
that it did not clearly require proof of mens rea as to K.M.’s non-
consent. The district court rejected each of these arguments and
denied Barela’s motion.
    ¶17 Barela challenges his conviction and the denial of his mo-
tion for new trial on grounds mirroring those asserted in support
of his motion in the district court. We consider each of his argu-

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                        STATE v. BARELA
                       Opinion of the Court

ments under well-settled standards of review—yielding deference
to the jury’s determination of the sufficiency of the evidence 1 but
addressing the legal questions he raises de novo.2
                                  II
    ¶18 We consider three questions presented for review. First is
Barela’s claim of ineffective assistance in counsel’s failure to pre-
sent a mistake of fact theory to the jury and in failing to object to
the mens rea requirement of the elements instruction given to the
jury. On the second aspect of this claim (failure to object to the ju-
ry instruction), we find reversible error, as we conclude that rea-
sonable counsel should have objected to a defect in the instruction
and that defect was reasonably likely to have affected the verdict.
    ¶19 That determination renders unnecessary our analysis of
Barela’s alternative grounds for reversal. But we nonetheless pro-
ceed to consider two other legal issues raised by Barela that may
be implicated on remand. Thus, without reaching Barela’s asser-
tion of insufficiency of the evidence of nonconsent, we address a
threshold interpretive question implicated by this argument—
regarding the nature and application of the principles of noncon-
sent set forth in Utah Code section 76-5-406. And finally, without
reaching the merits of Barela’s post-trial request for a medical rec-
ords subpoena under rule 14(b) of the Utah Rules of Criminal Pro-
cedure, we interpret the terms of that rule as applied here.




   1  See State v. Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645 (stating
that, on sufficiency of the evidence claims, the court “review[s] the
evidence and all inferences which may reasonably be drawn from
it in the light most favorable to the verdict” (internal quotation
marks omitted)); State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058
(indicating that we sustain all inferences made by the jury unless
they fall “to a level of inconsistency or incredibility that no rea-
sonable jury could accept” (internal quotation marks omitted)).
   2 Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35,
¶ 41, 308 P.3d 382 (“No deference is given to the lower court’s
analysis of abstract legal questions. . . . Our review of conclusions
of law is accordingly de novo.”).


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                        Opinion of the Court

                                  A
    ¶20 Barela asserts two related grounds for his claim of ineffec-
tive assistance of counsel under the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984). First, Barela claims that his trial
counsel was ineffective in limiting his defense to a “he-said, she-
said” approach—in urging the jury simply to believe Barela’s sto-
ry that K.M. was the instigator and to reject K.M.’s contrary ac-
count. In Barela’s view, counsel should instead have pressed an
alternative theory, that even if Barela was the instigator, he was
not guilty of rape because he was reasonably mistaken—or in oth-
er words lacked mens rea—as to K.M.’s nonconsent. And second,
Barela also charges a related error in counsel’s failure to object to
the statement of the mens rea requirement in the elements instruc-
tion given to the jury (Instruction 13). We reject the first point but
agree as to the second.
    ¶21 The threshold question under Strickland is not whether
some strategy other than the one that counsel employed looks su-
perior given the actual results of trial. It is whether a reasonable,
competent lawyer could have chosen the strategy that was em-
ployed in the real-time context of trial. Id. at 489. Under that
standard we uphold the reasonableness of counsel’s decision to
forgo a mistake-of-fact defense but find fault in the failure to ob-
ject to the jury instruction.
   ¶22 It is easy to second-guess counsel’s trial strategy from the
rearview mirror of an appeal. Given that the jury rejected Barela’s
account and apparently accepted K.M.’s, it is tempting to deem
counsel’s strategy faulty. But that is not how Strickland analysis
proceeds. We may not evaluate counsel’s conduct from the hind-
sight-biased vantage point of the appeal. Instead, we must consid-
er whether counsel’s decision to proceed with the “he-said, she-
said” approach was reasonable at the time he made this decision.
Viewed in this light, there is no doubt that counsel’s decisions
were reasonable.
    ¶23 At the time of trial, counsel had ample reason to antici-
pate the meaningful possibility that the jury would reject K.M.’s
account and accept Barela’s. Some inconsistencies in K.M.’s story
left some room for that hope, as, of course, did the high standard
of proof beyond a reasonable doubt. And granted, counsel could
legally have presented alternative theories to the jury. Thus, in-
stead of just relying on Barela’s account and discounting K.M.’s,

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                        STATE v. BARELA
                       Opinion of the Court

counsel could have openly entertained the possibility that K.M.
was telling the truth, and invited the jury (through witness exam-
ination and in closing) to nonetheless acquit on the ground that he
might have been the instigator but mistaken as to whether she
consented. But the legal viability of this strategy does not render it
the only reasonable one under Strickland.
    ¶24 If counsel had pursued this alternative defense, it could
reasonably have anticipated doing significant damage to its prin-
cipal theory. The damage would ensue from the fact that the al-
ternative theory would require counsel to openly entertain the
possibility that his client was lying. Such a move is legally tenable,
but strategically fraught with risk. We cannot properly fault de-
fense counsel for avoiding this risk and sticking with a single,
straightforward defense on appeal. See Archuleta v. Galetka, 2011
UT 73, ¶ 96, 267 P.3d 232 ( “[R]easonably informed strategic
choices are almost unassailable”).
    ¶25 Yet that same analysis cannot excuse counsel’s failure to
object to Instruction 13. That instruction, as quoted above, identi-
fied four elements of rape: “1. The defendant, Robert K. Barela, 2.
Intentionally or knowingly; 3. Had sexual intercourse with K.M.;
4. That said act of intercourse was without the consent of K.M.”
   ¶26 This instruction was in error. In asking the jury to consid-
er whether Barela “intentionally or knowingly” “had sexual inter-
course with K.M.” and whether the intercourse was “without
[her] consent,” the instruction implied that the mens rea require-
ment (“intentionally or knowingly”) applied only to the act of sex-
ual intercourse, and not to K.M.’s nonconsent. It conveyed that
idea by coupling the mens rea requirement directly with the ele-
ment of sexual intercourse, and by articulating the element of
K.M.’s nonconsent without any apparent counterpart requirement
of mens rea. 3 That implication was error. After all, our criminal


   3 In response, the State asserts that the court of appeals upheld
a similar instruction in State v. Marchet, 2009 UT App 262, ¶¶ 21–
23, 219 P.3d 75. But the instruction in that case differed from the
one here in a crucial respect: the mens rea element was listed last,
after both the “sexual intercourse” and “nonconsent” elements. Id.
¶ 21. That instruction at least arguably suggests that the mens rea
element applies to all of the above-listed elements. So we proceed
                                                                con’t.

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                       Opinion of the Court

code requires proof of mens rea for each element of a non-strict
liability crime, 4 and the crime of rape unmistakably includes the
element of nonconsent. 5 So, as our court of appeals has held, the
crime of rape requires proof not only that a defendant “knowing-
ly, intentionally, or recklessly had sexual intercourse,” but also
that he had the requisite mens rea as to the victim’s nonconsent.
State v. Marchet, 2009 UT App 262, ¶ 23, 219 P.3d 75.
    ¶27 Instruction 13 was in error. And reasonable trial counsel
should have objected to it. On this point, there is no reasonable
strategy that could explain trial counsel’s performance. Again, a
reasonable lawyer could well have decided not to present alterna-
tive theories to the jury—particularly where (as here) the fallback
theory (reasonable mistake as to nonconsent) could have under-
mined the primary one (the victim was the instigator). But no rea-
sonable lawyer would have found an advantage in understating
the mens rea requirement as applied to the victim’s nonconsent.
There is only upside in a complete statement of the requirement of
mens rea, particularly in a case like this one where the jury could
reasonably have decided to reject both the prosecution’s case and
the defense’s case in a manner that could have led to an acquittal.
Thus, trial counsel was ineffective in failing to object to Instruc-
tion 13.
    ¶28 That misstep, moreover, was reasonably likely to have af-
fected the verdict. See Strickland, 466 U.S. at 696. The jury appar-
ently did not accept all of Barela’s story—of K.M. being the sexual
instigator. But that does not foreclose the possibility that a proper-
ly instructed jury might still have rendered a verdict in his favor.

on the ground that Marchet is distinguishable, and without reach-
ing the question of whether the instruction in that case was an ac-
curate statement of law.
   4 See UTAH CODE § 76-2-101(1) (“A person is not guilty of an of-
fense unless the person’s conduct is prohibited by law; and the per-
son acts intentionally, knowingly, recklessly, with criminal negli-
gence, or with a mental state otherwise specified in the statute de-
fining the offense . . . .” (emphasis added)).
   5 See Id. § 76-5-402(1) (defining the conduct prohibited by law
as “sexual intercourse with another person without the victim’s con-
sent” (emphasis added)).


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                        STATE v. BARELA
                       Opinion of the Court

If Instruction 13 had clearly and correctly required the jury to find
mens rea as to K.M.’s nonconsent, the jury could reasonably have
acquitted Barela on the basis of a determination that he mistook
K.M.’s reaction for consent. And on this record we conclude that
that was reasonably likely.
   ¶29 The jury heard two different accounts of the events lead-
ing to Barela’s sexual intercourse with K.M.—Barela’s and K.M.’s.
Barela painted K.M. as the instigator. K.M. had it the other way
around (Barela as the instigator). But even in K.M.’s account, she
never explicitly (in words) or openly (in physical resistance) re-
buffed Barela’s advances. Instead K.M. testified that she “froze”—
neither actively participating in sex nor speaking any words.
    ¶30 On this record, we have no way of knowing how the jury
processed these two stories. Thus, we cannot properly conclude
that the jury found K.M.’s account “credible,” as the dissent sug-
gests. Infra ¶ 61. 6 Because the instructions required mens rea only
as to sexual intercourse, all we know from the jury’s verdict is that
it concluded (a) that Barela’s intercourse with K.M. was intention-
al or knowing, and (b) that K.M. did not consent. But that does not
at all mean that the jury accepted K.M.’s story lock, stock, and
barrel. The jury could easily have thought that the truth fell
somewhere in between the two accounts—that K.M. was some-
what flirtatious but not the clear instigator (and did not ultimately
consent). And even in that event, the jury (as incorrectly instruct-
ed) could still have found Barela guilty upon a mere finding of
intercourse that was intentional and nonconsensual—but without
ever considering Barela’s state of mind as to K.M.’s consent.
    ¶31 The dissent makes much of the environment of a massage
studio, asserting that K.M.’s state of undress was normal in this
business setting and thus that “a reasonable massage therapist
would not perceive the act of massaging the inner thigh of a client
as an invitation for a sexual encounter in a place of business that is
accepted when the client simply fails to object within a few se-

   6  It may well be that “[g]iven” the account offered by K.M., “it
is highly probable that a properly instructed jury would have con-
cluded that Mr. Barela knew that K.M. had not consented to sex.”
Infra ¶ 60. But we cannot take K.M.’s story as a given, as we have
no way of knowing that the jury accepted it in its entirety.


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conds.” Infra ¶ 62. That is fair enough if one assumes that the jury
accepted K.M.’s story in its entirety. But we cannot assume that,
as our review under Strickland step two must be in light of the “to-
tality of the evidence,” infra ¶ 7, not just the evidence supporting
the verdict. In light of the totality of the evidence in the record
here, a reasonable jury could have found the truth to lie some-
where between K.M.’s and Barela’s accounts. And if a jury so con-
cluded, it is reasonably likely that the erroneous jury instruction
could have made changed the outcome.
    ¶32 We reverse on this basis. A reasonable jury could have
found the truth to lie somewhere between Barela’s and K.M.’s ac-
counts. And a reasonable jury viewing the evidence in that way
could have acquitted Barela if correctly instructed—on the basis of
a determination that Barela had neither knowledge nor reckless-
ness as to K.M.’s nonconsent. We accordingly conclude that coun-
sel’s ineffective assistance was prejudicial, as it was reasonably
likely to have changed the verdict.
                                 B
    ¶33 That conclusion renders unnecessary any further analysis
of Barela’s other grounds for challenging the verdict in this case.
But we nonetheless proceed to consider a couple of issues that he
raises because they are likely to be implicated on remand. See
UTAH R. APP. P. 30(a) (acknowledging appellate court’s authority,
in a case in which a “new trial is granted,” to “pass upon and de-
termine all questions of law involved in the case presented upon
the appeal and necessary to the final determination of the case”).
    ¶34 First we consider a legal question raised in Barela’s chal-
lenge to the sufficiency of the evidence on the element of K.M.’s
nonconsent. In challenging the sufficiency of such evidence,
Barela has raised not only the fact-intensive question of the suffi-
ciency of the evidence to sustain the jury’s verdict, but also a
threshold question of statutory interpretation. That legal question
concerns the meaning of the terms of Utah Code section 76-5-406.
Specifically, Barela asserts that section 406 prescribes an exhaus-
tive list not encompassing the notion of K.M.’s nonconsent by
“freezing” during the encounter at Massage Envy, and asserts that
the evidence at trial was insufficient to sustain a viable jury find-
ing of nonconsent under this understanding of the statute.
   ¶35 We need not and do not reach the factual question of the
sufficiency of the evidence. But we do consider Barela’s threshold

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                       Opinion of the Court

argument concerning the scope and meaning of section 406 be-
cause that issue is likely to be implicated on remand.
    ¶36 Utah Code section 76-5-406 is entitled “Sexual offenses
against the victim without consent of victim—Circumstances.”
With regard to a number of enumerated sexual offenses, including
rape, this statute states that “abuse is without consent of the vic-
tim” under “any of” twelve “circumstances” listed in the statute,
as follows:
      (1) the victim expresses lack of consent through
      words or conduct;
      (2) the actor overcomes the victim through the actual
      application of physical force or violence;
      (3) the actor is able to overcome the victim through
      concealment or by the element of surprise;
      (4)(a)(i) the actor coerces the victim to submit by
      threatening to retaliate in the immediate future
      against the victim or any other person, and the victim
      perceives at the time that the actor has the ability to
      execute this threat; or
            (ii) the actor coerces the victim to submit by
      threatening to retaliate [as defined in section (4)(b)] in
      the future against the victim or any other person, and
      the victim believes at the time that the actor has the
      ability to execute this threat; . . .
      (5) the victim has not consented and the actor knows
      the victim is unconscious, unaware that the act is oc-
      curring, or physically unable to resist;
      (6) the actor knows that as a result of mental disease
      or defect, the victim is at the time of the act incapable
      either of appraising the nature of the act or of resist-
      ing it;
      (7) the actor knows that the victim submits or partici-
      pates because the victim erroneously believes that the
      actor is the victim’s spouse;
      (8) the actor intentionally impaired the power of the
      victim to appraise or control his or her conduct by
      administering any substance without the victim’s
      knowledge;

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      (9) the victim is younger than 14 years of age;
      (10) the victim is younger than 18 years of age and at
      the time of the offense the actor was the victim’s par-
      ent, stepparent, adoptive parent, or legal guardian or
      occupied a position of special trust in relation to the
      victim as defined in Section 76-5-404.1;
      (11) the victim is 14 years of age or older, but younger
      than 18 years of age, and the actor is more than three
      years older than the victim and entices or coerces the
      victim to submit or participate, under circumstances
      not amounting to the force or threat required under
      Subsection (2) or (4); or
      (12) the actor is a health professional or religious
      counselor, as those terms are defined in this Subsec-
      tion (12), the act is committed under the guise of
      providing professional diagnosis, counseling, or
      treatment, and at the time of the act the victim rea-
      sonably believed that the act was for medically or
      professionally appropriate diagnosis, counseling, or
      treatment to the extent that resistance by the victim
      could not reasonably be expected to have been mani-
      fested.
UTAH CODE § 76-5-406.
    ¶37 Barela would have us construe this statute as an exhaus-
tive delineation of the metes and bounds of the element of non-
consent. His argument is twofold: (a) that this provision is aimed
at defining the element of nonconsent—in prescribing the “valid
theories” that the prosecution may use in establishing this ele-
ment; and (b) that the list of valid theories is an exhaustive one.
    ¶38 We disagree. The statute does not define nonconsent. It
merely “limits the various theories of consent that might other-
wise be available.” State v. Salazar, 2005 UT App 241, ¶ 9, 114 P.3d
1170. The point of the statute, in other words, is to foreclose the
factfinder from deeming sex to be consensual in circumstances
deemed substantively out of bounds as a matter of public policy.
   ¶39 As a general rule, consent—or nonconsent, to put it in
terms of an element of a crime—is a fact-intensive, context-
dependent question, decided on a case-by-case basis. See State v.
Myers, 606 P.2d 250, 252 (Utah 1980). To determine whether a vic-

                                13
                         STATE v. BARELA
                        Opinion of the Court

tim has truly consented, the factfinder must pay close attention to
the verbal and nonverbal cues given by the victim and to a wide
range of other elements of context. 7 These and other contextual
nuances are the reason why, as a general rule, our law has long
left the matter of consent in the hands of the jury.
    ¶40 This long-established, settled understanding is nowhere
overridden by the terms of section 406. The statute nowhere pre-
scribes any definition of nonconsent. Nor does it purport to set
forth any sort of formula or criteria for the establishment of non-
consent. Instead, section 406 is best understood as prescribing ex-
ceptions to the general rule—as deeming certain circumstances
beyond the case-by-case discretion of the factfinder. Thus, under
section 406, the jury is foreclosed from finding consent by a victim
who “expresse[d] lack of consent through words or conduct” (but
really meant “yes”), UTAH CODE § 76-5-406(1); in circumstances in
which the actor “overcomes the victim through the actual applica-
tion of physical force or violence” or “through concealment or by
the element of surprise,” 8 id. § 76-5-406(2), (3); or by a victim un-
der the age of fourteen, id. § 76-5-406(9).


   7  The “freezing” circumstances of this case are an excellent ex-
ample. Barela may be right to say that “freezing or non-
participation may well be indistinguishable from normal sexual
activity in many women.” But that is just another way of saying
that the question of consent is highly nuanced and context-
dependent. Thus, the outward indicators of consent in one context
may suggest nonconsent in another. A person who had previously
been a victim of sexual assault might well respond to unwanted
sexual contact in a post-traumatic-stress response of “freezing.”
And it would be reasonable under those circumstances for a jury
to infer that the victim’s freezing reaction was indicative of non-
consent—and of the defendant’s knowledge of nonconsent if the
defendant was aware of the victim’s past. But that does not sug-
gest that “freezing” would always support such a determination,
since as Barela indicates it might be possible for a defendant to
establish that a victim’s nonparticipation indicated consent in con-
text.
   8 The State has cited this provision in its briefs as an alternative
basis for an affirmance, asserting that even if the statute defines
                                                                 con’t.

                                  14
                        Cite as: 2015 UT 22
                        Opinion of the Court

    ¶41 These terms are not ultimately definitional. They simply
direct, as a matter of law, that “abuse is without consent of the
victim” under the circumstances enumerated in the statute. Id.
§ 76-5-406. We reject Barela’s approach on that basis.
    ¶42 In so doing, we are also mindful of some practical prob-
lems implicated by Barela’s approach. See Encon Utah, LLC v. Fluor
Ames Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d 263 (explaining that
“absurd results” may provide a basis for resolving a dispute be-
tween “two alternative readings” of a statute). Specifically, we
note that under Barela’s reading, a jury would be foreclosed from
finding nonconsent in circumstances not encompassed by the
terms of section 406 but still falling within the well-accepted
meaning of this term. Thus, if section 406 were construed to iden-
tify the sum and substance of all circumstances in which noncon-
sent could be established, a jury would be foreclosed from finding
nonconsent in a case where the actor knows that the victim sub-
mits or participates because the victim erroneously believes that
the actor is the victim’s lover (but not spouse) 9; or where the pow-
er of the victim to appraise or control his or her conduct was im-
paired by the victim’s accidental ingestion of a substance (not ad-
ministered by the actor). 10
   ¶43 Yet the settled understanding of nonconsent in the crimi-
nal law would easily support a guilty verdict in these circum-
stances. In the law of rape, “the essence of consent is that it is giv-
en out of free will.” 65 AM. JUR. 2D Rape § 5 (2014); 75 C.J.S. Rape

“nonconsent” comprehensively, there was sufficient evidence to
show that Barela “overc[a]me” K.M. “through concealment or by
the element of surprise.” UTAH CODE § 76-5-406(3). We do not
reach this question because we do not read the statute to set forth
a comprehensive definition of nonconsent.
   9 See Id. § 76-5-406(7) (indicating that sex is “without the con-
sent of the victim” where “the actor knows that the victim submits
or participates because the victim erroneously believes that the
actor is the victim’s spouse” (emphasis added)).
   10 See id. § 76-5-406(8) (sex is “without the consent of the vic-
tim” where “the actor intentionally impaired the power of the vic-
tim to appraise or control his or her conduct by administering any
substance without the victim’s knowledge” (emphasis added)).


                                  15
                         STATE v. BARELA
                        Opinion of the Court

§ 22 (2014) (“A rape victim need not orally express her lack of
consent as long as the lack of consent is demonstrated by or can be
implied from her acts and conduct.”). See also BLACK’S LAW
DICTIONARY 1151 (9th ed. 2009) (defining nonconsent as “the re-
fusal to engage willingly in sexual intercourse”). That is why a
victim who outwardly appears to express assent or approval may
not have consented under the law—as her assent is not freely giv-
en if it is under circumstances of impairment, and it is not a mat-
ter of free will if it is a product of mistake of fact as to the identity
of the victim. The above-noted hypotheticals are equally noncon-
sensual, as the degree of impairment from a substance is the same
regardless of whether the actor administered it, and the mistake
as to identity is as troubling for a lover as it is for a spouse. But
Barela’s reading of the statute would foreclose a conviction under
these circumstances, as they are not precisely covered by section
406. We also reject Barela’s construction on this alternative basis.
   ¶44 Thus, we interpret section 406 not as establishing the sum
and substance of all circumstances amounting to nonconsent, but
as simply prescribing the circumstances in which the legislature
forecloses a jury finding of consent as a matter of public policy.
And we base this decision not only on the plain terms of the stat-
ute, but also on the ground that it also avoids the absurdity of
preventing a jury from finding nonconsent in circumstances
properly understood to qualify as such.
    ¶45 We also reject Barela’s claim that this approach is incom-
patible with our analysis in State v. Jeffs, 2010 UT 49, 243 P.3d 1250.
Granted, the Jeffs opinion characterized certain theories of consent
as “valid” or “invalid” under the terms of section 76-5-406. Id.
¶ 38. But in context, our analysis in Jeffs cannot be understood to
construe section 406 as exhaustively defining the concept of non-
consent. Instead we were simply acknowledging that a conviction
of rape may be reversed where it is based on an erroneous—
“invalid”—jury instruction. See id. ¶¶ 33–38 (finding reversible
error in an invalid jury instruction that misconstrued subsections
(10) and (11) of section 406; explaining that under these subsec-
tions it must be the actor, and not a defendant charged with abet-
ting the actor, who is in a position of special trust or entices or co-
erces the underage victim).
  ¶46 In other words, the Jeffs opinion held only that the jury
must be properly instructed as to the terms and application of sec-


                                   16
                        Cite as: 2015 UT 22
                        Opinion of the Court

tion 406. An instruction misstating those terms is invalid, and po-
tentially reversible error. But that in no way means that construc-
tions of nonconsent outside the bounds of section 406 are invalid.
We never said that in Jeffs and we clarify here that that is not our
law.
                                  C
   ¶47 Finally, we also consider the legal basis for Barela’s chal-
lenge to the denial of his request for a medical records subpoena
under rule 14(b) of the Utah Rules of Criminal Procedure—again
on the ground that this issue may well arise again on remand.
    ¶48 In challenging the denial of his request for a rule 14(b)
subpoena of K.M.’s medical records, Barela claimed two principal
errors—one in the district court’s determinations that the request
was untimely (as it could be mooted if the motion for new trial
were denied) and the other in its conclusion that the request was
properly denied (in the sense of not being reasonably certain to
produce exculpatory evidence). On the first point Barela asserted
that the terms of the rule do not foreclose a post-trial request. And
on the second he has insisted that his request was reasonably
aimed at uncovering evidence in support of his post-verdict theo-
ry that K.M. had an “impulsive sexual relationship with him” and
“was not a reliable witness.”
    ¶49 Barela may have a (technical) point on the timeliness
question. On its face the rule does leave some limited room for
post-trial requests. See UTAH R. CRIM. P. 14(b)(3) (requiring request
to be “filed with the court as soon as practicable, but no later than
30 days before trial, or by such other time as permitted by the court”)
(emphasis added). Yet the fact that a court may permit a request
later than thirty days before trial does not mean that it should do
so, much less that it would be reversed on appeal for not doing so.
Presumably the trial court retains substantial discretion in decid-
ing whether to grant a post-trial request under rule 14(b). And
surely that discretion could be exercised in a manner considering
whether the information requested could have been requested at
least thirty days before trial. To succeed on his second point,
Barela would have to establish that he was “entitled to production
of the records sought under applicable state and federal law.”
UTAH R. CRIM. P. 14(b)(1). This is a high bar. In order to show that
he is entitled to (presumptively privileged) medical records, a de-
fendant must show, to a “reasonable certainty,” that “the records

                                  17
                          STATE v. BARELA
                    JUSTICE DURHAM, dissenting

actually contain exculpatory evidence . . . favorable to his de-
fense.” State v. Worthen, 2009 UT 79, ¶ 38, 222 P.3d 1144 (internal
quotation marks omitted). And in order to ensure that no privi-
leged information is released that is unnecessary for discovering
exculpatory information, the request must “identify the records
sought with particularity and be reasonably limited as to subject
matter.” UTAH R. CRIM. P. 14(b)(2).
   ¶50 We do not reach the question whether the district court
erred in denying the subpoena request in this case under these
standards. But we do clarify that these are the governing stand-
ards, which will apply if the issue arises again on remand.
                              ————
  JUSTICE DURHAM, dissenting:
    ¶51 I agree that Mr. Barela’s counsel provided ineffective rep-
resentation by failing to object to the jury instructions. The in-
structions were erroneous because they implied that the State had
to prove only that K.M. did not consent to sexual intercourse ra-
ther than prove that Mr. Barela had the requisite mens rea as to
the victim’s lack of consent. In other words, the instructions did
not convey the requirement that the State prove Mr. Barela’s in-
tentional, knowing, or reckless state of mind regarding the ab-
sence of K.M.’s consent. See State v. Calamity, 735 P.2d 39, 43 (Utah
1987) (crime of rape “may be proved by an intentional, knowing,
or reckless mental state”); UTAH CODE § 76-2-102 (“[W]hen the
definition of [an] offense does not specify a culpable mental state
and the offense does not involve strict liability, intent, knowledge,
or recklessness shall suffice to establish criminal responsibility.”).
    ¶52 I disagree, however, with the majority’s conclusion that
Mr. Barela satisfied the second step of a Strickland ineffective as-
sistance of counsel claim. Supra ¶¶ 28–32. In my view, Mr. Barela
cannot show a reasonable probability that, but for the deficiency
of trial counsel in failing to object to the instructions, the jury’s
verdict would have been different.
    ¶53 “An error by counsel, even if professionally unreasona-
ble, does not warrant setting aside the judgment of a criminal pro-
ceeding if the error had no effect on the judgment.” Strickland v.
Washington, 466 U.S. 668, 691 (1984). “The defendant must show
that there is a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been dif-
ferent. A reasonable probability is a probability sufficient to un-


                                 18
                        Cite as: 2015 UT 22
                    JUSTICE DURHAM, dissenting

dermine confidence in the outcome.” Id. at 694. “In making this
determination, a court hearing an ineffectiveness claim must con-
sider the totality of the evidence before the judge or jury.” Id. at
695.
    ¶54 In State v. Hutchings, 2012 UT 50, ¶¶ 24–28, 285 P.3d 1183,
we recently applied the Strickland prejudice standard in a similar
case. We determined in Hutchings that a defense attorney’s per-
formance was deficient because the attorney failed to object to a
potentially confusing mens rea jury instruction during an aggra-
vated assault trial. Id. ¶¶ 18–23. We concluded that the instruc-
tions given created an unacceptable risk that the jury did not
comprehend the necessity of finding that the defendant intended
to cause serious bodily injury. Id. ¶¶ 22–23. We upheld the convic-
tion, however, because we determined that there was not a rea-
sonable probability that a correctly instructed jury would have
reached a different verdict. Id. ¶ 28. The only logical conclusion to
be drawn from the verdict in Hutchings was that the jury had re-
jected the defendant’s testimony and accepted the victim’s testi-
mony that the defendant kicked in the victim’s door, grabbed the
victim by the neck and chocked her, broke her hand by slamming
it against a hard object, and stated that he was going to kill her. Id.
¶¶ 3, 27 & n.11. Given the “totality of the evidence before the . . .
jury,” Strickland, 466 U.S. at 695, the instructional error did not
undermine our confidence in the outcome of the trial because a
correctly instructed jury likely would have found that the defend-
ant acted with the requisite mens rea, Hutchings, 2012 UT 50, ¶ 28.
    ¶55 We reached a similar conclusion in State v. Powell, 2007
UT 9, 154 P.3d 788 and State v. Casey, 2003 UT 55, 82 P.3d 1106. In
both cases, defense counsel did not object to an erroneous instruc-
tion that the jury could find the defendant guilty of attempted
murder if the defendant acted either intentionally or knowingly.
Powell, 2007 UT 9, ¶¶ 17, 19; Casey, 2003 UT 55, ¶¶ 38–39. These
instructions were in error because a defendant may only be con-
victed of attempted murder if the defendant acted intentionally; a
knowing state of mind is insufficient. Casey, 2003 UT 55, ¶ 38. We
nevertheless upheld the convictions in both Powell and Casey,
holding that there was not a reasonable likelihood that the in-




                                  19
                          STATE v. BARELA
                    JUSTICE DURHAM, dissenting

structional error affected the verdict.1 Powell, 2007 UT 9, ¶¶ 21–23;
Casey, 2003 UT 55, ¶¶ 46–50.
    ¶56 Powell and Casey are factually similar to each other, lead-
ing this court to hold that the instructional error in each case was
harmless for similar reasons. In Powell, the defendant twice point-
ed a gun at the victim’s head and pulled the trigger, but the gun
did not fire. 2007 UT 9, ¶¶ 3–4. As the defendant fled in a car, he
noticed the loaded magazine clip for the gun lying on the floor
and exclaimed, “That’s why [it] didn’t work!” Id. ¶ 5. In Casey, the
defendant pointed a gun at the victim’s head and pulled the trig-
ger, but it misfired. 2003 UT 55, ¶ 5. The defendant then shot at
the victim as she fled, but missed. Id. In both Powell and Casey, we
reviewed the compelling evidence that the defendants intended to
kill their victims and held that there was not a reasonable proba-
bility that a correctly instructed jury would have come to a differ-
ent conclusion. Powell, 2007 UT 9, ¶ 23; Casey, 2003 UT 55, ¶¶ 49–
50.
    ¶57 In summary, Strickland and Utah caselaw require courts
to evaluate the totality of the evidence presented to the jury to de-
termine the probability of a more favorable outcome for the de-


   1   The defendants in Powell and Casey did not raise a Strickland
ineffective assistance of counsel argument. Instead, they asserted
that this court should have reviewed the unpreserved instruc-
tional errors under the plain error doctrine, which requires the
appellant to show that “(i) [a]n error exists; (ii) the error should
have been obvious to the trial court; and (iii) the error is harmful,
i.e., absent the error, there is a reasonable likelihood of a more fa-
vorable outcome for the appellant, or phrased differently, our
confidence in the verdict is undermined.” Casey, 2003 UT 55, ¶ 41
(internal quotation marks omitted); accord Powell, 2007 UT 9, ¶ 18.
Because the third element of a plain error analysis is identical to
the second step of a Strickland analysis, the reasoning of Powell
and Casey regarding whether the instructional error affected the
outcome of those cases is relevant to the question of prejudice at
issue in this case. See State v. Dunn, 850 P.2d 1201, 1225 (Utah
1993) (“Th[e] prejudice test [for ineffective assistance of counsel]
is equivalent to the harmfulness test we apply in determining
plain error . . . .”).


                                 20
                       Cite as: 2015 UT 22
                   JUSTICE DURHAM, dissenting

fendant if defense counsel had provided adequate representation
and ensured that the jury had been properly instructed. A convic-
tion should only be reversed if this probability of a more favorable
result is “sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
   ¶58 In this case, Mr. Barela asserted that he was innocent be-
cause K.M. actively solicited a sexual encounter. Supra ¶ 5. Alt-
hough the verdict demonstrates that the jury did not believe
Mr. Barela’s testimony, we must still evaluate the likelihood that a
correctly instructed jury would have found that Mr. Barela lacked
the required mens rea given K.M.’s version of what happened. See
Hutchings, 2012 UT 50, ¶ 28 (evaluating the likelihood of a defense
verdict if the jury had been correctly instructed where the jury
had clearly rejected the defendant’s testimony); Powell, 2007 UT 9,
¶ 23 (same).
    ¶59 K.M. testified that Mr. Barela had given her a massage on
one occasion prior to the day she was sexually assaulted. The first
massage was uneventful, and K.M. did not request Mr. Barela for
the second massage. During the second massage, the parties did
not engage in conversation. Close to the end of the massage,
Mr. Barela began to massage K.M.’s inner thigh while she was ly-
ing on her back. This made K.M. uncomfortable. Before K.M.
could formulate a response, and within “a matter of seconds” of
massaging her inner thigh, Mr. Barela pulled her to the end of the
table without saying anything, dropped his pants, and penetrated
K.M.’s vagina with his penis. K.M. testified that “it happened very
fast” and that “before [she] knew it,” Mr. Barela had penetrated
her. Mr. Barela ejaculated within about thirty seconds to a minute
and pulled up his pants. He then said, “Okay, this concludes your
massage,” and left the room.
    ¶60 Given this evidence, it is highly probable that a properly
instructed jury would have concluded that Mr. Barela knew that
K.M. had not consented to sex when he penetrated her vagina
with his penis. And it is even more likely that a jury would con-
clude that Mr. Barela acted with criminal recklessness. A person
acts with a reckless state of mind when that person engages in
conduct
        [r]ecklessly with respect to circumstances surround-
     ing his conduct or the result of his conduct when he is
     aware of but consciously disregards a substantial and

                                21
                           STATE v. BARELA
                     JUSTICE DURHAM, dissenting

       unjustifiable risk that the circumstances exist or the re-
       sult will occur. The risk must be of such a nature and
       degree that its disregard constitutes a gross deviation
       from the standard of care that an ordinary person
       would exercise under all the circumstances as viewed
       from the actor’s standpoint.
    UTAH CODE § 76-2-103(3). Thus, the test for determining
whether a criminal defendant acted recklessly involves both a
subjective and an objective element. First, the defendant must sub-
jectively be “aware of but consciously disregard[] a substantial
and unjustifiable risk” that a particular circumstance exists or that
a particular result will occur. Id. Second, in order to determine
whether disregarding the risk was “unjustifiable,” the fact-finder
must measure the defendant’s conduct against an objective, rea-
sonable person standard.
    ¶61 According to K.M.’s testimony, which the jury found
credible, Mr. Barela inserted his penis into the vagina of a client
who was a near-stranger to him within a matter of seconds of
massaging her inner thigh. K.M. did not indicate her consent to
Mr. Barela’s actions in any way or even engage in conversation
with him. The most that can be said is that K.M. did not actively
object to Mr. Barela massaging her inner thigh within seconds of
his doing so.2 Thus the question presented to a correctly instruct-
ed jury would have been (1) whether Mr. Barela was “aware of
but conciusly disregarded a substantial and unjustifiable risk
that” K.M. had not consented to sex and, if so, (2) whether
Mr. Barela’s assumption of the risk of being wrong about any con-




   2 In his brief before this court, the defendant focused on K.M.’s
testimony that she was frozen with shock while she was being
sexually assaulted, and that she did not do or say anything. This
testimony, however, has no bearing on Mr. Barela’s state of mind
when he first inserted his penis into K.M.’s vagina. It is at this
moment that Mr. Barela was guilty of rape if he acted with the
requisite mens rea as to the absence of K.M.’s consent. Any events
occurring after this moment are irrelevant to the question of
whether Mr. Barela acted intentionally, knowingly, or recklessly.


                                  22
                        Cite as: 2015 UT 22
                    JUSTICE DURHAM, dissenting

jecture that K.M. had consented to sex under these facts 3 “consti-
tute[d] a gross deviation from the standard of care that an ordi-
nary person would exercise.” Id.
    ¶62 Under this reckless state of mind standard, it is not rea-
sonably probable that a correctly instructed jury would have ac-
quitted Mr. Barela. When K.M. entered the establishment where
Mr. Barela worked as a massage therapist, she did so as a paying
client seeking a service at an established business. K.M. had no
relationship with Mr. Barela other than that of a client, and she
did not engage in flirtatious behavior or even friendly conversa-
tion with him. Although K.M. was required to undress and lie
beneath a sheet, a reasonable massage therapist would not per-
ceive this as an indication that K.M. consented to sex any more
than a reasonable doctor would perceive a patient’s state of un-
dress as consent. Moreover, a reasonable massage therapist
would not perceive the act of massaging the inner thigh of a client
as an invitation for a sexual encounter in a place of business that
is accepted when the client simply fails to object within a few se-
conds. In my view, a reasonable jury likely would find that
Mr. Barela was aware of but consciously disregarded the risk that
K.M. did not consent to sex. Moreover, a jury likely would not
only find that Mr. Barela breached the standard of care that an
ordinary massage therapist would observe by disregarding this
risk, but also would conclude that any assumption that a client
had consented to sex under these circumstances would be a gross
deviation from this standard of care.
   ¶63 Similar to this court’s holdings in Hutchings, Powell, and
Casey, I conclude that the probability that a properly instructed
jury would acquit Mr. Barela of rape is not sufficient to under-


   3 Mr. Barela did not testify that he believed K.M. had consent-
ed to sex given the version of events K.M. testified to. He testified
only as to his belief that K.M. had consented given his version of
events in which K.M. initiated a sexual encounter (a version clear-
ly rejected by the jury). The State, however, bears the burden of
proving Mr. Barela’s culpable state of mind, and the absence of
specific testimony regarding Mr. Barela’s perception of whether
K.M. had consented to sex under K.M.’s version of events does
not affect my analysis.


                                 23
                         STATE v. BARELA
                   JUSTICE DURHAM, dissenting

mine my confidence in the verdict. I would, therefore, hold that
Mr. Barela cannot satisfy the second step of the Strickland analysis,
and I would affirm his conviction.




                                 24
