State v. Barela - 2015 UT 22, 349 P.3d 676 (Sup.Ct.)

Rule:

A conviction of rape may be reversed where it is based on an erroneous—"invalid"—jury instruction.

Facts:

Defendant was employed as a massage therapist. The victim was his client. In defendant’s version of the encounter, the victim became roused and initiated sexual contract. The two then began having sex. In contrast, the victim told the jury that she was receiving a massage from defendant when he unexpectedly started massaging her inner thigh, pulled her to the end of the table, dropped his pants, and penetrated her vagina with his penis. After closing arguments, the jury was given its instructions enumerating the elements of the offense of rape, and the circumstances in which the sexual intercourse was without the consent of the victim. The prosecutor, however, asserted that the list of circumstances was not exhaustive. The jury found defendant guilty. Defendant was convicted of first-degree rape. He challenged his conviction, arguing that the evidence of the victim’s non-consent was insufficient, particularly under defendant’s reading of Utah Code section 76-5-406 (as providing an exclusive list of ways the prosecution may establish non-consent). Furthermore, defendant asserted that the trial counsel had been ineffective in a variety of ways: in failing to introduce evidence corroborative of defendant’s story, in failing to challenge evidence harmful to defendant, n failing to advance a mistake of fact defense, in failing to request a mistake of fact instruction, and in failing to object to a jury instruction on the ground that it did not clearly require proof of mens rea as to victim’s non-consent. The district court rejected each of the arguments and denied the defendant’s motion for new trial. 

Issue:

Under the circumstances, did the trial court err in denying defendant’s motion for a new trial? 

Answer:

Yes.

Conclusion:

The judgment was reversed. The court held that the trial court erred in denying defendant's motion for a new trial because, while it was reasonable for counsel to forego a mistake-of-fact defense, counsel's failure to object to a jury instruction misstating the requirement of mens rea, as defined by Utah. Code Ann. § 76-2-101(1), as applied to the elements of first-degree rape constituted ineffective assistance where the crime of rape unmistakably included the element of non-consent, as defined by Utah Code § 76-5-406, the instruction implied that the mens rea requirement ("intentionally or knowingly") applied only to the act of sexual intercourse, and not to the victim's non-consent, and counsel's failure was reasonably likely to have affected the verdict.