State v. Black

2026 UT App 114
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R AYMOND M ERLE BLACK,
Appellant.
Opinion
No. 20230342-CA
Filed July 30, 2026
Fourth District Court, American Fork Department
The Honorable Denise Porter
No. 191100171
Ann M. Taliaferro, Attorney for Appellant
Derek E. Brown, Terry M. Crist, and
David A. Simpson, Attorneys for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES JOHN D. LUTHY and A MY J. O LIVER concurred.
MORTENSEN, Judge:
¶1 	Raymond Merle Black was convicted by a jury of digitally
penetrating and otherwise sexually assaulting his niece at a family
reunion. Black seeks reversal of these convictions on numerous
grounds, many of which would require this panel to reverse this
court’s holding in State v. Heath, 2019 UT App 186, 453 P.3d 955,
which defined the meaning of “genital opening” in the object rape
statute. See id. ¶¶ 69–70. We decline Black’s invitation to overrule
Heath, and we reject all of his arguments. Accordingly, his
convictions are affirmed.

State v. Black
20230342-CA 	2 	2026 UT App 114
BACKGROUND1
¶2 	At a family reunion held at the home of the family
matriarch over the Labor Day weekend in 2017, Black was
accused of sexually assaulting his fifteen-year-old niece (Jori) by
fondling her breasts and digitally penetrating her.2
Incident
¶3 	Jori, Black, and another family member had been talking to
each other for ten to twenty minutes on the front porch. Black
mentioned that he had “been drinking a little.” At around 9:30
p.m., the other family member left, and Jori walked over to a
nearby picnic table under a canopy to get a cup of juice. Jori sat at
the picnic table, straddling a bench with one leg on each side. She
was wearing sweatpants and a baggy t-shirt, but she wasn’t
wearing a bra. Black walked up, sat down on the bench behind
her, and firmly wrapped his arms and legs around her, holding
her in place. Clenching Jori with one arm, Black slipped the other
hand up the back of her shirt, worked his way around to the front,
and “started to touch [her] breasts with his hand.” After a “couple
of minutes,” he moved his hand down, untied her sweatpants,
and slid his hand beneath her underwear.
¶4 	Jori later explained that Black “began . . . to touch [her]
down there, his fingers . . . kind of rubbing on [her] clit.” When
asked what she meant by “clit,” Jori responded, “I don’t know all
the correct terms, but I think . . . the labia’s the outside, kind of the
flaps, I guess, of the vagina. And on the inside it—kind of inside
1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned
up).
2. We use pseudonyms for the victim and her cousin.

State v. Black
20230342-CA 	3 	2026 UT App 114
a little bit, but up towards the top where the clit is.” At the same
time he was touching Jori’s clitoris, Black kissed and lightly bit the
right side of her neck, whispering, “[I]f only you had gotten my
message sooner,” and telling her that “he wanted to taste [her]
and wanted to know what [she] tasted like.” Jori didn’t say
anything during the assault, later explaining, “I froze up. I didn’t
know what to do.”
¶5 	Jori then noticed someone walking toward them, whom
she soon recognized as her fourteen-year-old cousin (Elsa). Elsa
had been looking for Jori and saw her and Black under the canopy
at the table. Black eased his grip, and Jori began to get up. Black
threatened Jori, “[Y]ou tell anyone and I’ll kill you.” As Jori got
up, she was “very silently crying,” prompting Black to ask her
“what was wrong.” Jori responded, “[F]uck you,” as she walked
away and linked arms with Elsa. Elsa noticed that Jori was
shaking, which she thought was “weird.” Elsa was “a hundred
percent positive” that Black was with Jori under the canopy. Elsa
escorted Jori to some nearby portable toilets that had been set up
for the reunion. Jori cleaned herself up there and then went into
the house. Jori phoned her boyfriend, who was not at the reunion,
and told him what had happened. He said she needed to “find
somebody.” Jori then went and found her stepsister. Jori was
“crying” and was a “mess again,” prompting her stepsister to ask
her what was wrong. Jori told her that Black had “touched” her.
The two found an aunt (Elsa’s mother), whom Jori told that Black
“had been drinking,” that “he held her,” and that “he touched
her.” Later that evening, Jori also told her father what had
happened, and the police were called.
¶6 	Jori’s father sent her to bed in the family trailer. There, Jori
recalled Black’s comments about a message he had sent earlier
that evening. Jori, who had only a flip phone, borrowed her
stepsister’s phone to log into her Facebook account. There, she
retrieved a message Black had sent earlier that evening that said,
“I’m getting ideas.”

State v. Black
20230342-CA 	4 	2026 UT App 114
¶7 	The police arrived and interviewed Jori, Black, and Elsa.
The responding officer described Jori as “very shaken up” and
“scared.” Jori told the officer about the Facebook message and the
incident on the picnic bench. Black told the officer that he did not
recall sending Jori any Facebook messages, that he had been
drinking earlier in the day, that Jori had been acting weird, and
that 	she 	had 	flipped 	him 	off. 	He 	denied 	the 	allegations,
specifically stating that he did not go over to the picnic table. Body
camera recordings of the interviews were made, but they were
subsequently erased.
¶8 	Less 	than 	two 	weeks 	after 	the 	incident, 	Jori 	was
interviewed at the Children’s Justice Center (CJC). The video
recording of this interview was played at trial. Jori described how
she was “kind of straddling the bench” when Black forced her into
a sitting position by putting his legs over hers. She said Black
“stuck his hands down” her pants and “started to rub” her clitoris,
but she said she “scooted back enough [so] that he couldn’t . . . go
in [her].” She said that Black let go of her when she saw Elsa
walking by, at which point she linked arms with Elsa and walked
away.
¶9 	Months after the incident, a detective interviewed Black.3
The interview was recorded, a redacted version of which was later
played at trial. Black said he arrived at the family reunion in the
late afternoon. He initially denied having confrontations with
anyone, but he later said that Jori was “kind of following [him]
around” and, when he sat in a chair that she had previously been
using, she “made kind of a fuss about” it. He admitted to having
a mixed drink but claimed that he was not “out of control” to the
point of not “remember[ing] anything.” Black denied touching
Jori “inappropriately.” He stated that he did not recall sending
messages to Jori, but he admitted that he had a “bad habit of
3. The detective apparently had some difficulty making contact
with Black despite repeated visits to his residence.

State v. Black
20230342-CA 	5 	2026 UT App 114
getting home from work and drinking and drunk texting people.”
Then he admitted to sending Jori a message on Facebook,
explaining that Jori had flipped him off earlier in the day and he
had messaged her asking why she had done so. When the
detective mentioned the message about “getting ideas,” Black
agreed that it did not “look good” for him. When asked what he
meant by that message, Black didn’t speak for more than a
minute, during which the detective commented that an innocent
explanation of the message was difficult to discern. Black then
stated that he had been talking to Jori that evening but was never
alone with her. When the detective told him that another witness
had seen him sitting behind Jori on the picnic bench, Black
asserted that person was “mistaken.” When the detective asked
him again about “what kind of ideas” he was getting about Jori as
referenced in the message, Black responded, “I don’t remember.”
Charges
¶10 	Black was initially charged with two counts of forcible
sexual abuse. But at the preliminary hearing, Jori testified as
follows:
Prosecutor: [A]fter he was touching your breasts, you
said 	that 	he 	touched 	you 	somewhere 	else.
Could you describe what happened?
Jori: Like I said, he went down my pants and
through my underwear, and he was touching
my vagina, the clit. It was inside the . . . .
Prosecutor: [S]o if I were to ask you a question, was
he touching the outside of your vagina or the
inside of your vagina?
Jori: The inside. Like, it was inside, like, the flaps
where the clit is.

State v. Black
20230342-CA 	6 	2026 UT App 114
Prosecutor: Okay. And . . . did he touch it . . . on the
outside of your underwear or on the inside of
your underwear?
Jori: Inside my underwear.
Prosecutor: So it was skin to skin?
Jori: Yes.
Prosecutor: Okay. And approximately how long did
he touch you there?
Jori: It was about five to ten minutes.
Given this testimony, Count 1 of the information was amended
from forcible sexual abuse to object rape based on the allegation
that Black touched Jori’s clitoris skin-to-skin. See Utah Code § 76-
5-402.2(2). Count 2 was for forcible sexual abuse based on
evidence that Black had touched Jori’s breasts skin-to-skin. See id.
§ 76-5-404(2). Black moved to dismiss Count 1, arguing that Utah’s
object rape statute was unconstitutionally vague and violated due
process 	and 	equal 	protection. 	Specifically, 	he 	argued 	that
touching the clitoris does not amount to penetration of the genital
opening, which is a required element of the offense of object rape.
See id. 76-5-402.2(2) (stating that an actor commits object rape by,
along with other elements, “caus[ing] the penetration, however
slight, of the genital or anal opening”). Black reasoned as follows:
“[T]he clitoris itself is neither an anatomical hole nor an opening,
and therefore is not a ‘genital opening’ as contemplated in the
object rape statute. With this in mind, interpreting the meaning of
‘genital opening’ in context with the entire statutory scheme
demonstrates that touching the clitoris does not amount to object
rape.” He further asserted that “a touch of the clitoris or the
surrounding skin and folds does not amount to object rape
because no opening has been penetrated.” The court denied the
motion, stating that it was bound by State v. Heath, where this
court held that penetration of the genital opening occurs when the

State v. Black
20230342-CA 	7 	2026 UT App 114
clitoris is touched inside the labia. 2019 UT App 186, ¶ 71, 453 P.3d
955.
Exclusion of Expert Testimony
¶11 	Before trial, Black gave notice of his intent to call an expert
witness 	(Expert) 	to 	“testify 	regarding 	the 	female 	anatomy,
specifically the status of the clitoris and what constitutes a genital
opening.” 	Black 	stated 	that 	Expert’s 	testimony 	would 	also
“include how the positioning as testified to in this case could
potentially expose the clitoris, making it no longer a genital
opening” as essentially articulated by Heath. The State objected
that Expert’s testimony would “be contrary to the holding set
forth in Heath” and, to the extent that Expert would define
“‘genital opening’ differently than Heath,” the testimony would
“potentially 	confuse 	the 	jury,” 	especially 	given 	that 	“the
established 	caselaw 	and 	the 	Utah 	Model 	Jury 	Instructions”
provide “the current state of Utah law in defining the term ‘genital
opening’ and the elements required to prove the crime of object
rape.”
¶12 	In his reply, Black requested a hearing under rule 702 of
the Utah Rules of Evidence regarding two points: (1) “whether the
folds of the labia by the clitoris are considered a genital opening
by the medical community” and (2) “whether the folds of the labia
may 	have 	been 	separated 	under 	the 	circumstances” 	Jori
described, specifically “that she was straddling a 12-inch-wide
bench at the time of the alleged touching.” Black asserted that
Expert’s 	testimony 	would 	“include 	an 	explanation 	of 	the
differences in female anatomy and how those differences could
impact the location of the clitoris in relation to the folds of the
labia.”
¶13 	At the evidentiary hearing on the matter, Expert testified
that “the only openings in the female genitalia” were the urethra,
the vagina, and the anus. Expert further stated that “depending
upon how far the legs are spread open, . . . things are exposed,”

State v. Black
20230342-CA 	8 	2026 UT App 114
which can result in the labial folds not “covering the clitoris.”
When asked about the term “genital opening,” Expert stated that
it was a “misnomer” and that “you cannot use the term genital
opening,” noting that only an orifice has an opening, of which
there “are very few in the genital anatomy.”
¶14 	Taking the matter under advisement, the district court later
issued a written decision, which it read from the bench. Noting
that 	Heath 	defined 	penetration 	as 	“entry 	across 	the 	place
separating or between the outer folds of the labia,” the district
court stated that it had “the obligation under principles of stare
decisis to comply with that holding.” Given this obligation, the
district court concluded that Expert’s “testimony would be of
minimal assistance to the trier of fact in considering how to apply
the legal definition of female genital opening as interpreted and
applied by our controlling precedent.” The court also expressed
its concern that Expert’s explanation of “anatomical or positional
differences which differ substantially from [the] governing legal
definition as described by Heath” would create “a real and distinct
possibility that [Expert’s] testimony may confuse or mislead the
jury.” The court proceeded to note that it was an unreasonable
reading of the object rape statute and Heath to conclude that “one
person might be a victim of object [rape] and another not, based
on the genetic genital differences or the position or specifics of
their body.” With that, the court excluded Expert’s testimony.
Trial
¶15 	At 	trial, 	the 	State 	called 	as 	witnesses 	Jori, 	Elsa, 	the
responding officer, and the investigating detective, along with
various reunion attendees, including Jori’s sister-in-law, Jori’s
uncle, one of Jori’s aunts, and a sister of that aunt. Black called his
mother, brother, and sister, all of whom were at the reunion, as
witnesses. 	The 	witnesses’ 	testimony 	set 	forth 	the 	facts 	as
described above. We recount only a few additional portions of
relevant testimony here.

State v. Black
20230342-CA 	9 	2026 UT App 114
¶16 	Jori testified that she did not flip off Black or have any
arguments or disagreements with him the day of the incident. She
also stated that she did not receive any other Facebook messages
from Black that night other than the one that stated, “I’m getting
ideas.” 	Elsa 	testified 	that 	in 	her 	written 	statement 	to 	law
enforcement she said she saw Jori “next to the [picnic] table a few
feet 	away 	from 	someone.” 	When 	asked 	why 	she 	did 	not
specifically identify Black as the person near Jori, Elsa testified
that she “figured it was just kind of assumed” she was referring
to Black. And she explained, “There were lights and I knew it was
him.” She also said she told police on the night of the incident that
Black was the person sitting by Jori.
¶17 	The absence of body camera video also came up at trial.
The 	responding 	officer 	testified 	that 	she 	had 	recorded 	her
interactions with Jori, Black, and Elsa on the night of the initial
investigation. The officer said that protocol would have been to
upload 	that 	video 	to 	a 	computer 	network 	at 	the 	police
department. The officer recalled having a conversation with her
sergeant about the importance of saving the recordings from that
night, but she did not recall seeing the video after she had
uploaded it to the database. During a sidebar, Black’s counsel
asked about the availability of the body camera video. The
prosecutor explained that—despite his best efforts to find it—the
video could not be found. He stated, “Nothing exists. It appears it
had been erased.” The investigating detective testified that the
video was likely uploaded to the system after the incident but
then was automatically deleted after ninety days. To prevent
deletion, an officer would have needed to take proactive action to
save the video to a DVD. The detective admitted that the process
for saving the video “was not completed” in this case. Based on
the loss of the video, Black’s counsel moved for dismissal, arguing
under State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, and State v.
DeJesus, 2017 UT 22, 395 P.3d 111, that the State failed to preserve
exculpatory evidence from the body camera interviews. The
district court denied the motion, concluding that Black had not

State v. Black
20230342-CA 	10 	2026 UT App 114
shown that the video contained exculpatory evidence and had
instead provided only “assumptions and speculation” about what
the “video footage might have shown.” See State v. Mohamud, 2017
UT 23, ¶ 24, 395 P.3d 133 (“Although the showing required of
defendants [regarding what the lost evidence would have shown]
is low, there must be something more than speculation about how
the evidence could conceivably be exculpatory.”).
¶18 	As relevant on appeal, Black’s counsel requested a lesser-
included-offense 	instruction 	on 	the 	object 	rape 	charge. 	His
counsel argued that Jori’s statement during her CJC interview that
“she scooted back so [Black] could not penetrate her” provided “a
basis for a lesser included of forcible sexual abuse” for the charge.4
The State disagreed, responding that Jori testified that Black
touched her clitoris and that she “scooted back so that he couldn’t
further penetrate her vagina,” which provided a foundation only
for “object rape and not forcible sexual abuse.” The court declined
to give the instruction.
¶19 	Also relevant on appeal, Instruction 16 informed the jury
that it could convict Black of object rape if, along with other
elements, it found beyond a reasonable doubt that Black “caused
the 	penetration, 	however 	slight, 	of 	[Jori’s] 	genital 	opening,
including the outer folds of the labia, by any object or substance,
including a part of the human body, other than the mouth or
genitals.” Instruction 17 informed the jury that it could convict
4. Here, the lesser included offense would be based on evidence
that Black’s counsel asserted showed that Black only touched the
pubic area or another part of Jori’s genitals without penetrating
her. See Utah Code § 76-5-404(2)(a)(i) (“[A]n actor commits
forcible sexual abuse if . . . without the consent of the individual,
the actor . . . touches the anus, buttocks, pubic area, or any part of
the genitals of another individual; . . . touches the female breast of
another individual; or . . . otherwise takes indecent liberties with
another individual . . . .”).

State v. Black
20230342-CA 	11 	2026 UT App 114
Black of forcible sexual abuse if it found, in addition to other
elements, that Black “touched [Jori’s] breast, even if accomplished
through the clothing,” or “took indecent liberties with [Jori].” The
court then explained that taking indecent liberties—as addressed
in Instruction 19—meant “touching the victim’s genitals, anus,
buttocks, pubic area, or female breast.”
¶20 	During closing argument, the prosecutor asserted that
Black’s conduct met the elements of object rape based on Jori’s
testimony that he touched her clitoris, which she said meant that
Black “put his finger inside the folds of her labia.” Then the
prosecutor addressed the charge of forcible sexual abuse, saying
that Jori testified Black touched “her bare breasts, or that he took
indecent liberties with her.”
¶21 	During deliberations, the jury sent out a note asking the
following as to Instruction 16: “What does the meaning by the
outer folds of the libia?”5 After discussing the matter with the
parties, the court told the jury to refer to Instruction 19, which—
as relevant in this situation—directed the jury to give any terms
not defined in the instructions or by the law their “usual and
ordinary meaning.”
¶22 	The 	jury 	convicted 	Black 	on 	both 	counts. 	Black 	was
sentenced to concurrent prison terms of five years to life on Count
1 and one to fifteen years on Count 2. He then filed a motion for a
new trial, asserting that the destruction of the body camera video
should have been remedied and that the district court erred in not
giving the lesser-included-offense instruction.6 The court denied
the motion.
5. We present the question as it was written.
6. Black also argued that a new trial should be granted because
the district court erred in denying a motion for mistrial based on
(continued…)

State v. Black
20230342-CA 	12 	2026 UT App 114
ISSUES AND STANDARDS OF REVIEW
¶23 	Black raises multiple issues on appeal. First, he argues that
the State failed to present sufficient evidence to support his
conviction for object rape. “In assessing a claim of insufficiency of
the evidence, we review the evidence and all inferences which
may reasonably be drawn from it in the light most favorable to
the verdict of the jury. And we will not reverse a jury verdict if we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven beyond
a reasonable doubt.” State v. Naranjo, 2023 UT App 131, ¶ 22, 538
P.3d 1278 (cleaned up).
¶24 	Black acknowledges that the success of this argument
hinges on this court overruling our precedent set out in Heath.
“Horizontal stare decisis requires that a court of appeals follow its
own prior decisions. Nevertheless, a panel may overrule its own
or 	another 	panel’s 	decision 	where 	the 	decision 	is 	clearly
erroneous or conditions have changed so as to render the prior
decision inapplicable.” In re C.C., 2017 UT App 134, ¶ 26, 402 P.3d
17 (cleaned up).
¶25 	Relatedly, Black argues that the court’s “application of
Heath created a number of additional errors fundamental to due
process,” namely, the exclusion of expert testimony on female
genital anatomy and the refusal to give a lesser-included-offense
instruction. “We review deferentially a district court’s decision to
admit or exclude evidence, including its determination regarding
the admissibility of expert testimony, for an abuse of discretion.”
Klein v. Klein, 2025 UT App 170, ¶ 26, 582 P.3d 1197 (cleaned up).
By contrast, a “court’s refusal to grant a lesser included offense
instruction is a question of law, which we review for correctness.”
State v. Nelson, 2021 UT App 26, ¶ 9, 484 P.3d 409 (cleaned up).
statements the prosecutor made in closing argument. This issue is
not relevant to this appeal.

State v. Black
20230342-CA 	13 	2026 UT App 114
¶26 	Second, Black asserts that the district court plainly erred in
not requiring the jury to render a unanimous verdict on the charge
of forcible sexual abuse. Alternatively, he argues that he received
ineffective assistance in his counsel’s failure to ensure unanimity.
“Claims for plain error and ineffective assistance of counsel
present questions of law, which we evaluate for correctness.” State
v. Mike, 2025 UT App 163, ¶ 23, 581 P.3d 590 (cleaned up).
¶27 	Third, Black argues that the court erred in denying his
motion to dismiss and his motion for a new trial based on the
State’s failure to preserve the body camera video. “Whether the
State’s destruction of potentially exculpatory evidence violates
due process is a question of law that we review for correctness,
though we incorporate a clearly erroneous standard for the
necessary subsidiary factual determinations.” State v. DeJesus,
2017 UT 22, ¶ 18, 395 P.3d 111 (cleaned up).
¶28 	Fourth, Black brings a claim of cumulative prejudice.
“Under the cumulative error doctrine, we apply the standard of
review applicable to each underlying claim or error and reverse
only if the cumulative effect of multiple errors undermines our
confidence that a fair trial was had.” State v. White, 2016 UT App
241, ¶ 14, 391 P.3d 311 (cleaned up).
ANALYSIS
I. Penetration of the Genital Opening
¶29 	Black argues that his conviction for object rape should be
vacated because the State presented no evidence that there was
penetration of the genital opening, which Black argues plainly
means the vaginal canal opening. More specifically, Black points
to evidence that the genital touching extended no further than
Jori’s clitoris. And he argues that “touching or rubbing the clitoris
or other external genitalia does not suffice to meet the requisite
elements of ‘penetration’ of the ‘genital opening’ necessary for

State v. Black
20230342-CA 	14 	2026 UT App 114
conviction” on a charge of object rape. Rather, he argues that “the
plain language of the statute . . . specifically requires penetration of
the genital or anal opening to establish first degree felony object
rape, as opposed to touching any part of the genitals necessary to
establish the separate offense of misdemeanor sexual battery or
second degree felony forcible sex abuse.” See Utah Code § 76-5-
402.2(2) (object rape); see also id. § 76-5-404(2)(a) (forcible sexual
abuse); id. § 76-5-418(2) (sexual battery).
¶30 	As relevant here, object rape is defined as follows:
An actor commits object rape if . . . the actor . . . acts
without an individual’s consent; . . . causes the
penetration, however slight, of the genital or anal
opening of the individual by . . . a part of the human
body other than the mouth or genitals; and . . .
intends to arouse or gratify the sexual desire of any
individual . . . .
Id. § 76-5-402.2(2).
¶31 	The problem, as Black perceives it, “lies in the legislature’s
use of the undefined term ‘genital opening.’” He argues that
“genital opening” must be interpreted in conjunction with the
legislature’s use of “anal opening.” He asserts that just as “the
mere touching of the surrounding skin and folds within the
intergluteal cleft does not constitute the requisite penetration of
the ‘anal opening’” to satisfy the elements of object rape, so too
“an inappropriate touch of the clitoris, or even an inappropriate
touch of the protective skin and folds surrounding the clitoris and
the vulva . . . does not amount to object rape because no opening
has been penetrated.” And he concludes that interpreting “the
object rape statute in any other manner would nullify any
distinction between the crime of object rape (which is a first
degree felony) and other sex offenses.”

State v. Black
20230342-CA 	15 	2026 UT App 114
¶32 	Proceeding on the premise that the genital opening means
the “vaginal canal opening,” Black maintains that the State offered
no 	evidence 	that 	he 	penetrated 	Jori’s 	genital 	opening.
Accordingly, he argues that his object rape conviction must be
vacated. 	We 	disagree 	and 	reject 	Black’s 	arguments 	for 	the
following reasons.
A. 	Sufficient Evidence of Object Rape
¶33 	Black would have a more plausible argument were it not
for the precedent established in State v. Heath, where this court
stated that Utah precedent established that “‘penetration’ in both
the rape and object rape context means entry between the outer
folds of the labia.” 2019 UT App 186, ¶ 61, 453 P.3d 955 (cleaned
up). In Heath, a patient testified that a chiropractor had “touched
her right on her clitoris in the middle of her vagina,” clarifying
that the chiropractor “had to go beyond her labia majora to touch
her clitoris and that she felt his finger actually go beyond her labia
majora.” Id. ¶¶ 1, 62 (cleaned up). The patient “described the labia
majora as the soft skin that’s the starting of the vagina, but not the
inner, not the opening, not the clitoris.” Id. ¶ 62 (cleaned up). As
Black does here, the chiropractor argued that “penetration” of the
“genital opening” as used in the object rape statute means
penetration of the “vaginal opening.” Id. ¶ 64 (cleaned up). This
court rejected the proffered interpretation, explaining that “if the
legislature intended to limit the meaning of ‘penetration’ to only
the vaginal opening, it could have done so.” Id. ¶¶ 65, 69. Heath
then explained that the legislature did not do so, instead using
“the 	more 	inclusive 	term 	‘genital 	opening’—a 	choice 	in
terminology that we must presume was intentional.” Id. ¶ 69.
Noting that “the term ‘genital’ is broadly defined as ‘of or relating
to the sexual organs,’” this court concluded that “the plain
meaning of the term ‘genital opening’ necessarily includes more
than simply the ‘vaginal opening.’” Id. ¶¶ 68–69 (cleaned up).
Given this definition, the court concluded that the chiropractor
had to go beyond the labia majora to touch the patient’s clitoris

State v. Black
20230342-CA 	16 	2026 UT App 114
and, 	consequently, 	“the 	jury 	reasonably 	found 	that 	[the
chiropractor] penetrated [the patient’s] genital opening when he
touched her clitoris.” Id. ¶ 71.
¶34 	Given 	the 	clear 	rule 	articulated 	in 	Heath, 	there 	was
certainly evidence that Black penetrated Jori’s genital opening.
Both at her CJC interview and at trial, she testified in no uncertain
terms that Black touched her clitoris, which she described as being
inside or behind her labia. And her testimony was enough to
support conviction because it provided “some evidence” of each
element of the crime of object rape. See State v. Pierce, 2022 UT 22,
¶ 32, 511 P.3d 1164 (“On a sufficiency of the evidence claim we
give substantial deference to the jury, and a sufficiency of the
evidence 	inquiry 	ends if 	there 	is 	some 	evidence, 	including
reasonable inferences, from which findings of all the requisite
elements of the crime can reasonably be made.” (cleaned up)).
B. 	Heath Remains Good Law
¶35 	As he must to succeed on his insufficiency claim, Black asks
us 	to 	overrule 	Heath, 	arguing 	that 	the 	decision 	overlooks
“fundamental rules of statutory interpretation” such that it makes
“Utah’s object 	rape 	statute 	unconstitutionally 	vague 	and 	in
violation of the Uniform Operation and Equal Protection clauses.”
As explained below, we decline this invitation.
1. 	Heath Is Persuasive
¶36 	The reasoning in Heath is solid and persuasive. First, we
note that Heath itself broke little new ground in concluding that
contact with the clitoris inside the labia necessarily establishes
penetration of the genital opening. Heath derived this conclusion
from State v. Simmons, 759 P.2d 1152 (Utah 1988), and its progeny.
See Heath, 2019 UT App 186, ¶ 61 (relying on Simmons to articulate
parameters 	of 	penetration). 	In 	Simmons, 	our 	supreme 	court
declared “that entry between the outer folds of the labia is
sufficient to constitute ‘penetration’ as that term is commonly

State v. Black
20230342-CA 	17 	2026 UT App 114
used in defining the crime of rape.” 759 P.2d at 1154. This
interpretation was later extended to object rape. See State v.
Patterson, 2017 UT App 194, ¶ 3, 407 P.3d 1002 (“‘Penetration’ in
[the context of object rape] means entry between the outer folds
of the labia.” (cleaned up)). All that Heath did was point to the
anatomically obvious and unremarkable fact that the clitoris is
located between the outer labia. See 2019 UT App 186, ¶ 71. To
borrow Chief Justice Hall’s words, Heath’s conclusion about the
location of the clitoris simply reflects the “common sense and the
experience of all those sexually literate.” See Simmons, 759 P.2d at
1161 (Hall, C.J., concurring in part and dissenting in part).
¶37 	Moreover, 	the 	interpretation 	articulated 	in 	Heath 	that
touching the clitoris inside the labia necessarily involves genital
penetration 	comports 	with 	the 	position 	adopted 	by 	courts
throughout the country. Black fails to appreciate or acknowledge
that a significant number of courts have construed the touching of
the clitoris inside the labia to constitute penetration. In other
words, Utah is no outlier. As the California Court of Appeal has
observed, the “universal rule” is that “penetration of the external
genital organs is sufficient to constitute sexual penetration” even
when the perpetrator does not “succeed in penetrating into the
vagina.” People v. Quintana, 108 Cal. Rptr. 2d 235, 238 (Ct. App.
2001) (cleaned up); see also State v. Baldwin, No. 112440, 2024 WL
5466646, at *2 (Ohio Ct. App. June 7, 2024) (explaining that the
defendant “digitally, however slightly, penetrated the victim by
touching her clitoris”); Manzanarez v. State, No. 05-22-00671-CR,
2024 WL 260481, at *3 (Tex. Crim. App. Jan. 24, 2024) (“It is proper
to 	describe 	[the] 	touching 	of 	[the 	victim] 	in 	this 	case 	as
penetration, as contact with her clitoris or the area below the plane
of her labia majora could reasonably be regarded as more
intrusive than just contact with her outer vaginal lips.”); People v.
Perez-Robles, 313 Cal. Rptr. 3d 372, 375 (Ct. App. 2023) (stating that
“contact with the clitoris, which is located inside the labia,
constitutes sexual penetration”); Costas v. Commonwealth, No.
1010-21-1, 2022 WL 3588574, at *3 (Va. Ct. App. Aug. 23, 2022)

State v. Black
20230342-CA 	18 	2026 UT App 114
(explaining 	that 	“stimulation 	of 	the 	clitoris 	is 	sufficient 	to
establish penetration” (cleaned up)); State v. Lerman, 2018 MT 5,
¶ 13, 408 P.3d 1008 (“Arguments that clitoral rubbing does not
constitute penetration under the law are without legal merit. . . .
We must consider common sense anatomy. The outer portions of
the vulva necessarily are penetrated, however slightly, when the
clitoris is touched.” (cleaned up)); People v. Enriquez, 2014 Guam
11, ¶ 15 (“The breach of any part of the vagina, including the labia
majora, is sufficient to constitute penetration.”); People v. David,
No. 291537, 2010 WL 4671030, at *3 (Mich. Ct. App. Nov. 18, 2010)
(concluding 	that 	the 	“defendant 	penetrated 	[the 	victim] 	by
touching her clitoris with his finger”); State v. Bloom, No. 97,883,
2009 WL 743049, at *5 (Kan. Ct. App. Mar. 13, 2009) (stating that
touching the clitoris “is sufficient to establish the penetration
element of rape”); State v. Cheng, Nos. 60569–1–I, 61161–5–I, 2009
WL 1058749, at *7 (Wash. Ct. App. Apr. 13, 2009) (stating that
testimony that a perpetrator touched a woman “inside of [her]
labia and around [her] clitoris” was sufficient “to show that a
rational trier of fact could have found that penetration occurred
beyond a reasonable doubt”); Quintana, 108 Cal. Rptr. 2d at 242
(stating that “contact with . . . the clitoris and the other genitalia
inside 	the 	exterior 	of 	the 	labia 	majora 	constitutes 	‘sexual
penetration’” as defined by the California Penal Code); Jett v.
Commonwealth, 510 S.E.2d 747, 749 (Va. Ct. App. 1999) (explaining
that 	“the 	clitoris 	lies 	within 	the 	labia 	majora” 	and 	that,
accordingly, “evidence of penetration or stimulation of the clitoris
is sufficient to establish penetration of the labia majora”); United
States v. Williams, 25 M.J. 854, 855 (A.F.C.M.R. 1988) (“The record
establishes that the appellant penetrated [the victim’s] sexual
organs by licking her clitoris.”); State v. Ludlum, 281 S.E.2d 159,
162 (N.C. 1981) (“[I]n order for . . . the clitoris to be stimulated,
there must be some penetration of at least the outer labia.”).
¶38 	In short, there is simply no reason to depart from Utah law
and the national consensus of courts that touching the clitoris
inside the exterior of the labia necessarily means that the genital

State v. Black
20230342-CA 	19 	2026 UT App 114
opening has been penetrated, even if only slightly. Accordingly,
we are not persuaded that Heath should be overruled.
2. 	Heath Avoids Absurd Results
¶39 	Black also claims that Heath should be overruled because
its interpretation of the object rape statute produces absurd
results. 	Specifically, 	Black 	argues 	Heath’s 	holding 	is 	absurd
because it “effectively renders mere touches to almost the entire
genital area on a woman subject to prosecution for first degree
felony 	object 	rape.” 	He 	then 	argues 	that 	“[e]xtending 	the
interpretation to its logical conclusion, the holding likewise
renders any touch within the intergluteal cleft, whether or not the
anus is touched or penetrated, to also amount to object rape.” In
other words, Black argues that Heath’s reasoning leads to absurd,
unreasonable, and inoperable results because “the intergluteal
cleft now suffices as the ‘anal opening’ just as the labial folds
amount to the ‘genital opening.’”
¶40 	Black’s take on absurdity here is unconvincing because it
ignores both the penetration element and the wording of the
statute. First, nothing in Heath’s interpretation could be construed
as creating a situation where object rape would consist of “mere
touches” to the genital area. Mere touching does not qualify as
object rape unless that touching extends to penetration of the
genital opening by breaching the “outer folds of the labia.” See
Heath, 2019 UT App 186, ¶ 70 (cleaned up). Heath could not be
clearer on this point.7
7. If we were to accept Black’s position on absurdity, ordinary
rape could also be committed without penetration. But that is
clearly contrary to the plain language of the statute and common
sense. See Utah Code § 76-5-402(2) (stating that “[a]ny sexual
penetration, however slight, is sufficient to constitute” the sexual-
intercourse element of the rape statute). In other words, absurdity
(continued…)

State v. Black
20230342-CA 	20 	2026 UT App 114
¶41 	Second, Black’s attempt to compare the intergluteal cleft
and the labial folds is entirely unconvincing. The object rape
statute specifically distinguishes the genital opening from the anal
opening. While the genital opening and the anal opening are both
anatomical structures, that is largely where the similarity ends.
The plain meaning of “genital opening” is broader than “anal
opening.” 	As 	Heath 	explained, 	“the 	term 	‘genital 	opening’
necessarily includes more than simply the ‘vaginal opening.’” Id.
¶ 69. But the same is not true of “anal opening.” The plain
meaning 	of 	“anal 	opening” 	refers to 	one 	thing: 	where 	the
gastrointestinal tract exits the body. That the term “anal opening”
is a more specific term than “genital opening” simply does not
provide a basis to conclude that Heath’s interpretation of the object
rape statute yields absurd results.
¶42 	In sum, Black’s suggestion that Heath leads to absurd
results under the object rape statute is unpersuasive because it
ignores the penetration requirement and attempts to compare
distinct anatomical terms used in the statute.
3. 	Heath Does Not Create Vagueness
¶43 	Black 	also 	argues 	that 	the 	object 	rape 	statute 	is
unconstitutionally 	vague 	in 	light 	of 	Heath. 	Specifically, 	he
suggests that illegal touching of the clitoris violates three separate
sex-offense 	statutes 	under 	Heath’s 	interpretation: 	(1)
misdemeanor sexual battery, which proscribes touching “any part
of the genitals” in such a way that would cause alarm to the
individual touched, see Utah Code § 76-5-418(2); (2) second degree
felony 	forcible 	sexual 	abuse, 	which 	proscribes touching 	the
“pubic area” or “any part of the genitals” with the intent to cause
pain or arouse sexual desire, see id. § 76-5-404(2); and (3) first
is avoided in both statutes because both require penetration in
addition to the preceding touching of the pubic area or the outer
portion of the genitalia.

State v. Black
20230342-CA 	21 	2026 UT App 114
degree felony object rape for penetration of the genital opening
done with the intent to cause pain or arouse sexual desire, see id.
§ 76-5-402.2(2). In sum, he asserts that Heath “effectively vitiated
any distinction between the crime of object rape and other sex
offenses.” He is mistaken because he overlooks the penetrative
aspect addressed in the statute.
¶44 	“A statute is impermissibly vague if it either (a) fails to
provide people of ordinary intelligence a reasonable opportunity
to understand what conduct it prohibits or (b) authorizes or even
encourages arbitrary and discriminatory enforcement.” State v.
Ray, 2022 UT App 95, ¶ 36, 516 P.3d 329 (cleaned up). But “a
statute is not unconstitutionally vague so long as it is sufficiently
explicit 	to 	inform 	the 	ordinary 	reader 	what 	conduct 	is
prohibited.” Id. (cleaned up). Heath’s construal of the object rape
statute does not create vagueness. On the contrary, it permits the
sex-offense statutes to address different types of prohibited
conduct. Touching the exterior of the genitals is punishable as
forcible sexual abuse or sexual battery, depending on whether the
actor intended to arouse sexual desire. See Utah Code §§ 76-5-
418(2), -404(2)(a)(ii)(B). But engaging in penetrative touching—
which includes touching of the clitoris inside the labia—falls
under object rape. See id. § 76-5-402.2(2)(a)(ii). Indeed, far from
creating 	vagueness, 	Heath’s 	interpretation 	prevents 	the 	sex-
offense statutes from being read vaguely by clearly articulating
when touching becomes penetrative and thus subject to the
greater penalty for object rape.
4. 	Heath Does Not Violate Equal Protection or the Uniform
Operation of Laws
¶45 	Black also argues that Heath’s interpretation of the object
rape statute violates equal protection and the uniform operation
of laws. Specifically, he asserts that Heath “makes the criminal
fondling of female external genitalia (the clitoris) worthy of more
significant 	punishment, 	than 	the 	criminal 	fondling 	of 	male

State v. Black
20230342-CA 	22 	2026 UT App 114
external 	genitalia 	(the 	penis).” 	Thus, 	Black 	argues, 	“the
interpretation denies male victims the equal protection and
uniform 	operation 	of 	the 	law 	as 	similarly 	situated 	female
victims.”
¶46 	The Equal Protection Clause mandates that “[n]o state shall
. . . deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. “Equal protection is
essentially a direction that all persons similarly situated should be
treated alike.” Grace United Methodist Church v. City of Cheyenne,
451 F.3d 643, 659 (10th Cir. 2006) (cleaned up). Accordingly,
classifications that implicate fundamental rights or are based on
race or sex trigger higher scrutiny. See In re adoption of J.S., 2014
UT 51, ¶ 68, 358 P.3d 1009.
¶47 	Neither 	Heath 	nor 	the 	object 	rape 	statute 	draws 	the
distinction based on sex necessary to support Black’s claim that
equal protection is at issue. The object rape statute prohibits “the
penetration, however slight, of the genital or anal opening of the
individual,” without drawing any distinction based on sex. Utah
Code § 76-5-402.2(2)(a)(ii). And Heath does not change this. It
merely 	adds 	that 	touching 	of 	the 	clitoris 	inside 	the 	labia
necessarily implies penetration of the genital opening, just as
penetrating the urethra of a male would constitute penetration of
the genital opening. Thus, neither the statute nor Heath draws a
distinction on the basis of sex; rather, both focus on the act of
penetration, with Heath specifically addressing what constitutes
penetration 	when 	the 	victim 	is 	a 	female. 	Any 	“differential
treatment of men and women [here] stems . . . not from an
outmoded 	stereotype 	but 	from 	a 	straightforward 	matter 	of
biology.” See In re adoption of J.S., 2014 UT 51, ¶ 73. This simply
means that men and women are not similarly situated when it
comes to the anatomical structure of their genitalia. As the State
points out in its brief, “If contact with female genitalia seems more
likely to result in penetration than with male genitals, that is
simply a function of the anatomical differences between the

State v. Black
20230342-CA 	23 	2026 UT App 114
sexes.” Accordingly, because the distinction made by Heath
concerns the act of penetration as it relates to the touching of the
clitoris, which is located inside the labia—a reality that has no
parallel with male genitalia—there simply isn’t a basis to argue
that it violates the Equal Protection Clause.
¶48 	Nor does Heath violate the uniform operation of laws. The
Utah Constitution states that “[a]ll laws of a general nature shall
have uniform operation.” Utah Const. art. I, § 24. The “uniform
operation guarantee is not viewed as a limit on the sorts of
classifications that a legislative body could draw in the first
instance, but as a rule of uniformity in the actual application of
such classifications.” In re adoption of J.S., 2014 UT 51, ¶ 66 (cleaned
up). And uniform operation “is simply a state-law counterpart to
the federal Equal Protection Clause.” Id. ¶ 67 (cleaned up). Both
“provisions embody the same general principle: persons similarly
situated should be treated similarly, and persons in different
circumstances should not be treated as if their circumstances were
the same.” Malan v. Lewis, 693 P.2d 661, 669 (Utah 1984). Thus,
Black has asserted “no tenable infringement” of the uniform
operation guarantee, see In re adoption of J.S., 2014 UT 51, ¶ 66, for
the same reason his equal protection claim fails. Neither the object
rape statute nor Heath creates classifications based on sex among
similarly 	situated 	persons. 	Both 	are 	concerned 	only 	with
penetration of the genital opening, which obviously will result in
specific applications for “persons in different circumstances” due
to the functional characteristics of the male and female genitalia.
See Malan, 693 P.2d at 669.
C. 	Exclusion of Expert
¶49 	Black 	argues 	that 	Expert 	would 	have 	testified 	that
“depending on someone’s position, the labial folds may not be
covering 	the 	clitoris 	leaving 	it 	exposed 	or 	protruding.”
Essentially, Black argues that Expert’s testimony would have
allowed him to mount a defense that he could have touched Jori’s

State v. Black
20230342-CA 	24 	2026 UT App 114
clitoris without penetrating her labial folds. By not allowing
Expert, Black argues, the court “relieved the State of its burden to
establish each element of its case beyond a reasonable doubt.” He
also argues that the need for Expert’s testimony was evidenced by
the jury’s question during deliberation about the outer labial
folds.
¶50 	The district court did not abuse its discretion in excluding
Expert’s testimony. The Utah Rules of Evidence allows expert
testimony “if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue.” Utah R. Evid. 702(a). Such
“testimony is not helpful to the fact finder when it is couched as a
legal conclusion,” which tends “to blur the separate and distinct
responsibilities of the judge, jury, and witness” and creates “a
danger that a juror may turn to the expert rather than the judge
for guidance on the applicable law.” Steffensen v. Smith’s Mgmt.
Corp., 862 P.2d 1342, 1347–48 (Utah 1993).
¶51 	In light of the clear interpretation of the object rape statute
set forth in Heath, Expert’s testimony would not have assisted the
jury. Expert was going to testify that the term “genital opening”—
the term chosen by Utah’s legislature—was a “misnomer.” But it
was not within Expert’s purview to define a legal term. Rather,
the 	jurors 	were 	tasked 	with 	determining 	whether 	Black
penetrated Jori’s “genital opening” when he touched her clitoris
inside her labia. In this context, the district court correctly
concluded that Heath settled the matter, making Expert’s opinion
of minimal assistance and one that would likely confuse the jury.
If—as Expert asserted—“genital opening” was a “misnomer” that
was unrecognized by the medical community, then she was in no
better 	position 	to 	explain 	what 	it 	meant 	than 	the 	jurors
themselves. The most she could have done was say that she did
not know what “genital opening” meant since it was a non-
medical term outside her area of expertise. In fact, if she attempted
to define the legal term “genital opening,” she would have been

State v. Black
20230342-CA 	25 	2026 UT App 114
offering a legal opinion, something an expert is not allowed to do.
See id. In this respect, Expert literally had nothing to tell the jury
about the nature of the genital opening—thus meeting the very
definition of not being helpful to the fact finder.
¶52 	Expert’s opinion that the clitoris may protrude beyond the
labial folds depending on the person or position of the body was
equally unhelpful in this case. Jori explicitly stated that Black
touched her clitoris, which she unequivocally identified as being
inside her labia. Given Jori’s testimony, Expert’s opinions about
anatomical possibilities would not have been helpful when it
came to analyzing the situation with this particular victim. In
other words, no matter what opinion Expert may have offered
about the position of the clitoris, it would not have been helpful
because 	Jori 	clearly 	stated 	that the 	touching 	of 	her 	clitoris
involved Black’s fingers penetrating her labial folds, which is
clearly in line with the rule articulated in Heath.8
¶53 	Given all this, the court did not abuse its discretion in
excluding Expert’s testimony because that testimony would have,
at best, been unhelpful to the jury and would have more likely
confused the jury.
D. 	Denial of Lesser-Included-Offense Instruction
¶54 	Black next argues that in applying Heath, the district court
erred in denying his request for the lesser-included-offense
instruction. He argues that the district court ignored what he
identifies as a “rational basis” of evidence of a lesser included
8. The jury’s question about the labial folds is of no import here.
There is no indication that this question indicated that the jury did
not understand that touching the clitoris inside the labia, by
definition, involves penetration of the genital opening. In other
words, whether the jury understood the meaning of “labial folds”
has no bearing on whether it heard testimony that Black touched
Jori’s clitoris.

State v. Black
20230342-CA 	26 	2026 UT App 114
offense. Specifically, he points to Jori’s CJC interview, in which
she said that she scooted back so Black couldn’t penetrate her.
Black misreads the evidence and is therefore mistaken.
¶55 	“A criminal defendant is entitled to a jury instruction on a
lesser included offense if (1) the charged offense and the lesser
offense have overlapping statutory elements and (2) there is a
rational basis in the record as a whole for convicting the defendant
of the lesser offense rather than the one charged.” State v. LoPrinzi,
2014 UT App 256, ¶ 17, 338 P.3d 253 (cleaned up). Here, the
district 	court 	properly 	denied 	the 	lesser-included-offense
instruction because there was not a rational basis in the evidence
to convict Black of the lesser offense (namely, forcible sexual
abuse for touching the genitals) but to acquit him of the greater
offense (namely, object rape based on touching the clitoris). Jori
unequivocally testified that Black rubbed her clitoris—which she
said was located inside the “flaps” of her labia—for “some time.”
In fact, she identified no other genital touching other than that to
her clitoris. Thus, the action (at least insofar as it concerned genital
contact) for which Black could have been convicted was touching
the clitoris. Because Jori mentioned that no other part of her
genitals were touched by Black, there was no rational basis in the
evidence for a lesser included offense involving some other part
of the genitals.
¶56 	Black resists this conclusion by pointing to Jori’s comment
that she scooted back to prevent Black from entering her. But
Black ignores the full context of Jori’s statement. In fact, she said
that he rubbed her clitoris for “some time,” leading her to “scoot[]
back enough [so] that he couldn’t . . . go in [her].” The obvious
inference 	is 	that 	Jori 	scooted 	back 	to 	prevent 	Black 	from
penetrating 	her 	vaginal 	opening. 	Again, 	the 	only 	act 	Jori
identified here is Black touching her clitoris inside her labia,
which means that he penetrated her genital opening under the
interpretation 	articulated 	in 	Heath, 	leaving 	no 	basis 	in 	the
evidence to support a lesser-included-offense instruction.

State v. Black
20230342-CA 	27 	2026 UT App 114
¶57 	In sum, because there was no basis for a lesser included
offense in the evidence, the court did not err in denying Black’s
request.
II. Unanimity of Verdict
¶58 	Black argues that no instruction required the jury to
consider only the charged offense in Count 2 for forcible sexual
abuse—touching of the breast skin-to-skin. Rather, he asserts, the
jury was allowed to consider uncharged conduct as indicated in
Instruction 17, which informed the jury that it could convict Black
of forcible sexual abuse if it found that Black “touched [Jori’s]
breast” or “took indecent liberties” with her, with Instruction 19
defining 	taking 	indecent 	liberties 	as 	“touching 	the 	victim’s
genitals, anus, buttocks, pubic area, or female breast.” Black
claims that by including both the language about touching Jori’s
breast and taking indecent liberties, Instruction 17 never specified
which act was applicable to Count 2.
¶59 	The Utah Constitution provides, “In criminal cases the
verdict shall be unanimous.” Utah Const. art. I, § 10. This
requirement “is not met if a jury unanimously finds only that a
defendant is guilty of a crime but does not necessarily reach a
unanimous finding as to which crime.” State v. Cissel, 2024 UT App
139, ¶ 19, 558 P.3d 911 (cleaned up), cert. denied, 564 P.3d 956 (Utah
2025). Thus, “our constitution requires unanimity as to each count
of each distinct crime charged by the prosecution and submitted
to the jury for decision. Indeed, a generic guilty verdict that does
not differentiate among various charges would fall short, as
would a verdict of guilty of some crime.” State v. Mottaghian, 2022
UT App 8, ¶ 55, 504 P.3d 773 (emphasis added) (cleaned up).
“When a defendant is charged with multiple offenses with
identical or similar elements, unanimity as to the elements
requires that the jury be unanimous regarding the specific act
supporting the conviction.” State v. Chadwick, 2024 UT 34, ¶ 32,
554 P.3d 1098. “Multiple-act cases in which the counts charged are

State v. Black
20230342-CA 	28 	2026 UT App 114
identical and the counts are not linked to specific underlying
conduct” present a circumstance that undermines “confidence in
the unanimity of the verdict.” Id. ¶ 40.
¶60 	Black acknowledges that this issue is not preserved and
asks that we review it under the rubric of plain error or,
alternatively, ineffective assistance of counsel.
¶61 	To establish plain error, a defendant “must show that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful.” State v. McNeil, 2013 UT App
134, ¶ 24, 302 P.3d 844 (cleaned up), aff’d, 2016 UT 3, 365 P.3d 699.
Here, we conclude that there was no unanimity issue, let alone
one that would have been obvious to the district court. There was
evidence of only two prohibited touchings: Black’s rubbing of
Jori’s breasts and Black’s rubbing of Jori’s clitoris, each of which
was addressed in a separate count. Count 1 could refer only to the
rubbing of the clitoris inside the labia, which by definition
constituted object rape. And Count 2 could match only the
rubbing 	of 	Jori’s 	breasts—even 	though 	Instruction 	17 	also
included 	the 	taking-indecent-liberties 	language—because 	the
only indecent-liberty conduct available for Count 2 was Black
rubbing Jori’s breasts. Black’s touching of Jori’s clitoris could not
have 	possibly 	fallen 	under 	the 	indecent-liberties 	language
because the clitoral touching was pertinent only to the charge of
object rape in Count 1. In other words, because evidence of genital
touching was limited to clitoral touching, there simply was no
basis for the jury to convict Black of forcible sexual abuse on
Count 2 for genital touching apart from the clitoral touching. But
the clitoral touching was addressed in its entirety in Count 1. We
are therefore confident there was not a unanimity problem since
the only remaining prohibited conduct available to the jury for
conviction on Count 2 was Black’s rubbing of Jori’s breasts.
¶62 	As to Black’s ineffective assistance claim, it fails for the
same reason. To establish ineffective assistance, a defendant must

State v. Black
20230342-CA 	29 	2026 UT App 114
show, along with prejudice, that counsel’s actions fell below an
objective standard of reasonableness. See Strickland v. Washington,
466 	U.S. 	668, 	687–88 	(1984). 	But 	“failure 	to 	object 	to 	jury
instructions 	that 	correctly 	state 	the 	law 	is 	not 	deficient
performance.” State v. Vigil, 2019 UT App 131, ¶ 11, 448 P.3d 738
(cleaned up); see also State v. Alarid, 2022 UT App 84, ¶ 42, 514 P.3d
610 (“Because we see no instructional error [with the unanimity
requirement], we also see no deficient performance in [c]ounsel’s
approval of these instructions.”). Accordingly, Black’s ineffective
assistance claim fails at the outset.
¶63 	Because there was no problem with the instructions, the
district court did not plainly err and Black’s counsel did not
provide deficient performance in failing to specifically address
the unanimity requirement.
III. Preservation of Exculpatory Evidence
¶64 	Black next asserts that the district court erred in denying
his motion to dismiss based on the loss of police body camera
video recorded on the night of the incident. He argues that this
video “contained helpful exculpatory information” and that the
destruction of the video was prejudicial to his defense. Black
suggests that the video would have been exculpatory by revealing
“the lighting conditions of the night, the relative positioning of
key landmarks and locations (such as where tents were set up and
the position of the canopy and bench in question), and other
physical evidence.” Black further argues that the video would
have shown witness demeanor, body language, and “responses to
specific questions that become critical when court proceedings are
held 	months 	and 	even 	years—five 	years 	in 	fact—after 	an
allegation.”
¶65 	“As a matter of Utah constitutional law, a defendant has a
due process right to evidence that has a reasonable probability of
being exculpatory. Thus, the destruction or loss of such evidence
violates due process.” State v. Mohamud, 2017 UT 23, ¶ 18, 395 P.3d

State v. Black
20230342-CA 	30 	2026 UT App 114
133 (cleaned up); see also State v. Tiedemann, 2007 UT 49, ¶ 40, 162
P.3d 	1106 	(“It 	is a matter of 	clear 	Utah law that 	criminal
defendants are entitled to information possessed by the State to
aid 	in 	their 	defense.”). 	“To 	determine 	whether 	the 	State’s
destruction of potentially exculpatory evidence violates due
process,” 	we 	use 	a 	balancing 	test 	prefaced 	by 	a 	threshold
requirement, State v. Steele, 2019 UT App 71, ¶ 15, 442 P.3d 1204
(cleaned up), which dictates that a defendant first establish “a
reasonable probability that the lost or destroyed evidence would
have been exculpatory,” State v. DeJesus, 2017 UT 22, ¶ 19, 395 P.3d
111. And “while this bar is quite low, the showing cannot be pure
speculation or wholly incredible.” State v. Mendoza, 2025 UT App
46, ¶ 20, 568 P.3d 265 (cleaned up), cert. denied, 570 P.3d 661 (Utah
2025). “Only after the defendant has established [a reasonable
probability the lost evidence would have been exculpatory]—and
accordingly established that there was a due process violation
resulting from the loss of evidence—should a court move on to
balance the culpability of the State and the prejudice to the
defendant in order to gauge the seriousness of the due process
violation and to determine an appropriate remedy.” State v.
Hamberlin, 2025 UT App 131, ¶ 50, 577 P.3d 912 (cleaned up).
¶66 	Black has not met “the threshold requirement of showing
a reasonable probability” that the body camera video “would
have been exculpatory.” See Mendoza, 2025 UT App 46, ¶ 20. While
he argues that the video would have revealed the lighting
conditions and the layout of the area where the incident occurred,
he 	does 	not 	say 	how 	that 	information 	would 	have 	been
exculpatory apart from the speculative assertion that it would
have been “beneficial.” This type of circular reasoning is not
persuasive because it represents nothing more than speculation
wrapped in the shroud of faulty logic. To avoid speculation, Black
needs to address why it would have been exculpatory, not just
assert that he thinks it would have benefitted him. Jori and Elsa
both testified about the lighting and the general layout of the area.
And the State even offered evidence about the level of lunar

State v. Black
20230342-CA 	31 	2026 UT App 114
illumination on the night in question, in addition to having
exhibits depicting the layout and nighttime lighting of the yard
where the incident took place. But Black does not address how the
lost video would have contradicted this testimony and offered
evidence to his benefit.
¶67 	Black also asserts that the lost video would have depicted
witness demeanor, body language, and responses to questions on
the night of the incident. But Black does not address how this
information would have necessarily been exculpatory in nature.
Indeed, 	a 	video 	showing 	a 	fifteen-year-old 	girl 	during 	the
immediate aftermath of an alleged sexual assault could have just
as 	easily 	been 	inculpatory. 	The 	same 	lack 	of 	exculpatory
specificity is true of the video recording of Elsa’s interview. While
Black asserts that Elsa’s testimony “changed significantly” and
that she admitted at one point her memory of the night was “a
little fuzzy,” he does not offer any hint as to what video of her
interview would have shown such that it would have been
exculpatory. This kind of speculation fails to support a threshold
exculpatory showing. See Mohamud, 2017 UT 23, ¶ 22 (“To
establish 	a 	reasonable 	probability 	that 	video 	evidence 	is
exculpatory for impeachment purposes, a defendant cannot rest
on the claim that the evidence could have undermined confidence
in a witness’s testimony in some possible way, but must instead
make some proffer as to what testimony would have been
contradicted and how such a contradiction would have aided the
defendant.”).
¶68 	Given 	that 	Black 	has 	not 	offered 	anything 	beyond
speculation that the lost video would have been exculpatory, we
need not proceed any further to reject Black’s claim that the
district court erred in denying his motion to dismiss.
IV. Cumulative Prejudice
¶69 	Black argues that he received a “fundamentally unfair
trial” as a result of the “many errors” he alleges occurred. He

State v. Black
20230342-CA 	32 	2026 UT App 114
argues that he is entitled to relief in the form of a new trial based
on the cumulative effect of these potentially harmful errors.
Because Black “has not successfully demonstrated multiple errors
on appeal, there are no errors to accumulate, and the doctrine is
inapplicable.” See State v. Hunt, 2025 UT 54, ¶ 83, 582 P.3d 772
(cleaned up).
CONCLUSION
¶70 	All of Black’s claims on appeal fall short. Black has not
persuaded us that precedent relevant to his conviction for object
rape should be overruled, so evidence of his touching Jori’s
clitoris was sufficient to support his conviction on that charge. The
failure of this claim also leads to the failure of his claims that the
court erred or exceeded its discretion in excluding Expert’s
testimony 	and 	declining 	to 	give 	a 	lesser-included-offense
instruction. There was no unanimity problem for the court to
address or his counsel to object to. The court did not err in
denying his motion to dismiss based on the destruction of
evidence because Black has not shown that the lost body camera
video would have been exculpatory. And finally, his cumulative
prejudice argument fails due to a lack of errors to accumulate.
¶71 	Affirmed.