State v. Cady

2018 UT App 8
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ICHAEL A ARON C ADY ,
Appellant.
Opinion
No. 20151018-CA
Filed January 11, 2018
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 131903414
Joanna E. Landau, Michael D. Misner, Elise C.
Lockwood, and Diana K. Pierson, Attorneys
for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 	No 	means 	no. 	So 	does 	“unh-unh,” 	especially 	when
accompanied 	by 	a 	host 	of 	other 	nonverbal 	cues—such 	as
pushing an assailant away, turning away from him, crying, and
curling up in fetal position. When Defendant Michael Aaron
Cady ignored Victim’s several expressions of nonconsent, he
committed object rape. He now challenges a jury’s conviction of
him for that crime, arguing the evidence was insufficient to
support a conclusion (1) that Victim did not consent to the
encounter 	or 	(2) 	that 	he 	was 	reckless 	with 	regard 	to 	her
nonconsent. 	He 	also 	argues 	that 	because 	the 	jury 	returned

State v. Cady
20151018-CA 	2 	2018 UT App 8
inconsistent 	verdicts, 	his 	conviction 	must 	be 	reversed. 	We
disagree and affirm his conviction.
BACKGROUND
¶2 	Victim 	was 	friends 	with 	Defendant’s 	wife 	when 	she
stayed on the couple’s couch one evening. Another friend slept,
“passed out” on the floor nearby. Victim had not yet fallen
asleep when Defendant came into the living room, knelt down
beside 	her, 	and 	started 	“rubbing 	her 	midsection 	over 	her
blanket.” Victim was turned away from Defendant, facing the
back of the couch. Defendant proceeded to touch Victim under
the blanket, whisper something in her ear, and kiss her shoulder
and neck. Victim’s response to these advances was to push his
hand off of her and say “unh-unh.” Defendant then tried to pull
Victim’s pants down. Victim shook her head and held onto her
pants, curling up her legs.
¶3 	Defendant eventually succeeded in pulling Victim’s pants
down and “got behind [Victim] on the couch, where [her] legs
were folded towards [her] belly,” so Victim tried to push him
away 	with 	her 	arm 	and 	leg. 	Rather 	than 	leave 	her 	alone,
Defendant twisted Victim’s arm behind her, slapped her arm
down, 	and 	then 	Victim 	felt 	something 	rubbing 	against 	her
vagina and buttocks. Defendant next inserted something “very
sharp” into Victim’s vagina, got up, and left the room. While
Victim did not testify as to what this sharp object was—only that
it did not feel like a penis—Defendant acknowledged in a police
interview (which was presented to the jury) that “he had put his
fingers in [Victim’s] vagina.” We thus talk in terms of digital
penetration throughout this opinion.
¶4 	For this incident, the State charged Defendant with object
rape. A jury convicted him on that charge.
¶5 	Separate 	from 	this 	crime, 	there 	were 	two 	additional
sexual 	encounters 	between 	Defendant 	and 	Victim. 	The

State v. Cady
20151018-CA 	3 	2018 UT App 8
circumstances 	surrounding 	those 	encounters 	are 	pertinent
insofar as they relate to Defendant’s claim that Victim’s account
of the object rape was inherently improbable. One of these
encounters occurred five minutes after the object rape. The other
had taken place more than a year before.1
¶6 	After inserting his fingers into Victim’s vagina, Defendant
left the room for approximately five minutes. When he came
back, he had sex with Victim. Victim maintained that the sex was
not consensual. She testified that she tried to pull her pants back
up, was crying, and remained in fetal position. We refer to this
encounter as the April incident.
¶7 	More than a year before the object rape, Defendant and
Victim 	had 	had 	sex, 	which 	Victim 	maintained 	was
nonconsensual. During that earlier incident, Victim also had
been staying on Defendant’s couch. Defendant entered the living
room after his wife had gone to bed and curled up on the couch
behind Victim. Victim testified that she had closed her eyes and
remained quiet. Defendant pulled down Victim’s pants, rubbed
his penis around her vagina and buttocks, and then inserted his
penis into her vagina. During penetration, Victim testified, she
had started crying and reached behind her to push Defendant
away, “but it didn’t work.” After Defendant got up, saying
something like “thanks for a great night,” he returned to the
bedroom. Victim pulled her pants back up and remained on the
couch crying. We refer to this encounter as the January incident.
¶8 	Victim reported all three incidents to the police on the
morning after the object rape. Based on her assertion that she
had not given her consent to any of the encounters, the State
charged Defendant not only with object rape but also with two
counts of rape. At trial, the jury acquitted Defendant of the two
rape charges. He now appeals his conviction for object rape.
1. 	Defendant 	agreed 	that 	these 	encounters 	took 	place; 	the
dispute at trial was whether they were consensual.

State v. Cady
20151018-CA 	4 	2018 UT App 8
ANALYSIS
¶9 	The focus of this appeal is consent—whether the State
proved beyond a reasonable doubt Victim’s lack of consent to
digital penetration and Defendant’s mental state as to her lack of
consent. More particularly, Defendant contends that because the
evidence 	of 	nonconsent 	was 	not 	credible 	and 	thus 	was
insufficient 	to 	support 	a 	conviction 	for 	object 	rape, 	that
conviction should be overturned. When on appeal a defendant
argues that there was insufficient evidence to support his or her
conviction,
we may reverse only when it is apparent that there
is not sufficient competent evidence as to each
element of the crime charged. Our review of the
evidence itself is deferential. We may reverse a
verdict 	only 	when 	the 	evidence, 	so 	viewed, 	is
sufficiently inconclusive or inherently improbable
such that reasonable minds must have entertained
a reasonable doubt that [the] defendant committed
the crime for which he or she was convicted.
State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719 (cleaned up).2
Necessary to our analysis, then, are the elements of object rape.
2. The parenthetical “cleaned up,” while perhaps unfamiliar, is
being used with increasing frequency to indicate that internal
quotation marks, alterations, and/or citations have been omitted
from a quotation. For an example of its use in a published
opinion, see United States v. Reyes, 866 F.3d 316, 321 (5th Cir.
2017). For a more thorough discussion regarding the practicality
of the parenthetical, see Jack Metzler, Cleaning Up Quotations,
Journal 	of 	Appellate 	Practice 	and 	Process 	(forthcoming
2018), https://ssrn.com/abstract=2935374 [https://perma.cc/XRQ4-
WCLX]. Finally, for a graphic representation of the phrase’s
trend 	in 	popularity 	among 	legal 	writing 	circles, 	see
(continued…)

State v. Cady
20151018-CA 	5 	2018 UT App 8
¶10 	To be found guilty of object rape under the facts of this
case, Defendant must have (1) caused the penetration, however
slight, of Victim’s genital opening (2) without her consent (3) by
any foreign object, including part of the human body other than
the 	mouth 	or 	genitals 	(4) 	with 	intent 	to 	cause 	substantial
emotional or bodily pain to Victim or with the intent to arouse or
gratify the sexual desire of any person. See Utah Code Ann. § 76-
5-402.2 	(LexisNexis 	Supp. 	2017). 	Because 	Defendant
acknowledged that he had put his fingers in Victim’s vagina,
neither element (1) nor (3) was in dispute. See id. And because
Defendant maintained that the encounter was consensual, he
seems to, at least implicitly, acknowledge that he did so “with
the intent to arouse or gratify the sexual desire of any person.”
See id. But he challenges the evidence of his mental state when it
comes to the general mens rea for object rape. He specifically
argues 	that 	the 	State 	“failed 	to 	prove 	[Defendant] 	acted
recklessly as to [Victim’s] non-consent to digital penetration, as
he 	did 	not 	‘consciously 	disregard[] 	a 	substantial 	and
unjustifiable risk that’ [Victim] did not consent to the digital
penetration.” 	(Quoting 	Utah 	Code 	Ann. 	§ 	76-2-103(3)
(LexisNexis 2012).) We thus first tackle the question whether
sufficient evidence supported the jury’s finding that Victim did
not consent. Because we answer that question in the affirmative,
we then consider whether sufficient evidence supported the
jury’s finding that Defendant acted recklessly with regard to that
lack of consent. Finally, we address Defendant’s contention that
inconsistent verdicts render his conviction unsupported.
I. Nonconsent
¶11 	The evidence at trial was sufficient to support a finding
that Victim did not consent to digital penetration. A victim
(…continued)
@SCOTUSPlaces, 	Twitter 	(Sept. 	22, 	2017, 	7:03 	AM),
https://twitter.com/SCOTUSPlaces/status/911229408689696768
[https://perma.cc/4FKJ-QYSE].

State v. Cady
20151018-CA 	6 	2018 UT App 8
might “express[] lack of consent through words or conduct.”
Utah 	Code 	Ann. 	§ 	76-5-406(1) 	(LexisNexis 	Supp. 	2017).
“Nonconsent cannot be determined simply by asking whether a
person physically fought back or attempted to escape.” State v.
Reigelsperger, 2017 UT App 101, ¶ 80, 400 P.3d 1127. Rather,
“[t]he essence of consent is that it is given out of free will, and
determining 	whether 	someone 	has 	truly 	consented 	requires
close attention to a wide range of contextual elements, including
verbal and nonverbal cues.” Id. ¶ 81 (cleaned up).
¶12 	The contextual elements involved in this case included
both verbal and nonverbal cues. Victim said “unh-unh” when
Defendant approached her on the couch. Defendant does not
dispute that she said this, nor does he dispute that “unh-unh”
means 	“no.”3 	Further, 	Victim 	testified 	that 	she 	pushed
Defendant’s hand off of her, held her pants up when Defendant
first tried to pulled them down, and pushed against Defendant
with her arm and leg, all while crying and curling up in a ball,
facing away from Defendant.
¶13 	Defendant nevertheless contends that this testimony was
insufficient because it “did not establish that she expressed a
lack of consent by words or conduct.” He argues that it was not
enough for Victim to say “‘unh-unh’ only one time but then
exhibit[] vague body language.”4 We disagree and conclude that
3. Defendant’s subjective interpretation of this verbal cue is
discussed in our analysis of whether Defendant was reckless as
to Victim’s nonconsent. See infra ¶¶ 29–31.
4. Defendant rests his argument, in part, on his statement to
police that after Victim said “unh-unh,” he “told her that if she
had a problem to tell him to go away.” Victim maintained that in
response, 	she 	“was 	shaking 	her 	head 	no.” 	We 	discuss the
implications of this exchange in greater detail when discussing
whether Defendant was reckless as to Victim’s nonconsent. See
infra Part II.

State v. Cady
20151018-CA 	7 	2018 UT App 8
Victim’s verbal and nonverbal conduct was sufficient for a jury
to find that she did not consent to Defendant’s conduct.
¶14 	To begin, our supreme court has previously indicated that
“under Utah rape law, ignoring a victim’s ‘no,’ standing alone,
may be sufficient for a conviction for rape, even without the use
or threat of force.” See State v. Hammond, 2001 UT 92, ¶ 17, 34
P.3d 773. Because both rape and object rape require a finding of
nonconsent, see Utah Code Ann. §§ 76-5-402, 76-5-402.2, we see
no reason why the supreme court’s pronouncement should not
apply in the present case. Thus, Defendant’s decision to ignore
Victim’s “unh-unh” might alone have been sufficient to sustain
Defendant’s object rape conviction. See Hammond, 2001 UT 92,
¶ 17. And the jury heard more evidence of nonconsent than
Victim’s “unh-unh.” It also heard testimony regarding Victim’s
nonverbal indications of nonconsent. See Utah Code Ann. § 76-5-
406(1) 	(explaining 	that 	a 	victim’s 	lack 	of 	consent 	may 	be
expressed “through words or conduct”).
¶15 	Given 	Victim’s 	account 	of 	crying, 	pushing 	against
Defendant, and closed body language, which account the jury
apparently credited, we will not disturb the jury’s finding of
nonconsent.
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. 	To 	determine 	whether 	a
victim 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. 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.
State v. Barela, 2015 UT 22, ¶ 39, 349 P.3d 676 (footnote and
citation omitted).

State v. Cady
20151018-CA 	8 	2018 UT App 8
¶16 	Defendant 	separately 	argues 	that 	because 	Victim’s
testimony 	was 	inherently 	improbable 	and 	internally
inconsistent, 	his 	conviction 	cannot 	stand. 	He 	argues 	that
credibility issues with Victim’s testimony made “any testimony
as to her non-consent to object rape[] ‘so weak that no reasonable
jury 	could 	find 	the 	defendant 	guilty 	beyond 	a 	reasonable
doubt.’” (Quoting State v. Robbins, 2009 UT 23, ¶ 18, 210 P.3d
288.) In so arguing, Defendant misapprehends our jurisprudence
regarding inherent improbability and internal inconsistency.
A. 	Inherent Improbability
¶17 	Although our supreme court has established a significant
barrier 	in 	succeeding 	on 	claims 	of 	inherent 	improbability,
Defendant nevertheless attempts to fit his argument within the
confines of this narrow doctrine. He fails.
¶18 	The predominant case for considering claims of inherent
improbability is State v. Robbins. In that case, our supreme court
clarified “the scope of the inherent improbability doctrine.” Id.
¶ 13. It is difficult to successfully establish such a claim on
appeal. Indeed, in State v. Prater, the supreme court focused in
on minute details in Robbins that allowed for a determination of
inherent improbability: “It was the inconsistencies in the child’s
testimony plus the patently false statements the child made plus
the lack of any corroboration that allowed this court to conclude
that insufficient evidence supported Robbins’s conviction.” 2017
UT 13, ¶ 38, 392 P.3d 398 (emphasis in original). Defendant’s
arguments in the present case do not add up to a conclusion that
Victim’s testimony was inherently improbable.
¶19 	“[W]itness testimony is inherently improbable and may
likewise be disregarded if it is (1) physically impossible or
(2) apparently 	false.” 	Robbins, 	2009 	UT 	23, 	¶ 	16. 	And 	our
supreme court has specified when testimony fits into one of
these two categories: “Testimony is physically impossible when
what the witness claims happened could not have possibly
occurred. . . . On the other hand, testimony is apparently false if

State v. Cady
20151018-CA 	9 	2018 UT App 8
its 	falsity 	is 	apparent, 	without 	any 	resort 	to 	inferences 	or
deductions.” Id. ¶ 17 (cleaned up). Furthermore, “the definition
of inherently improbable must include circumstances where a
witness’s 	testimony 	is 	incredibly 	dubious 	and, 	as 	such,
apparently false.” Id. ¶ 18.
¶20 	In very general terms, Defendant argues that Victim’s
testimony 	was 	“similar 	to 	cases 	where 	Utah 	courts 	have
disregarded witness testimony as . . . ‘inherently improbable.’”
(Quoting id.) But he does not specify whether or how the
testimony was physically impossible or apparently false. Instead,
he 	points 	to 	evidence 	that 	might 	have 	undermined 	the
credibility of Victim’s testimony. However, this sort of evidence
does not fit within the framework for considering inherent
improbability.
¶21 	We recently had occasion to consider when the “Robbins
inherent improbability test does not apply.” See State v. Crespo,
2017 UT App 219, ¶ 28, petition for cert. filed, Nov. 27, 2017 (No.
20170920). In Crespo, we explained that Robbins was inapplicable
where “there was circumstantial evidence presented to the jury
that supported finding [the defendant] had perpetrated the
crimes 	charged,” 	and 	“other 	evidence 	corroborated . . .
testimony” 	the 	defendant 	later 	claimed 	was 	inherently
improbable. Id. ¶¶ 28–31; see also Prater, 2017 UT 13, ¶¶ 39–41
(explaining 	that 	witnesses’ 	inconsistent 	statements 	and 	plea
deals 	were 	insufficient 	to 	render 	the 	witnesses’ 	testimonies
inherently improbable or apparently false).5
5. State v. Prater, 2017 UT 13, 392 P.3d 398, illustrates when
credibility attacks do not “invoke the inherent improbability
exception.” Id. ¶ 39 (quoting State v. Robbins, 2009 UT 23, ¶ 22,
210 P.3d 288). In that case, the defendant raised issues relating to
witness testimony when the witnesses “all made statements to
police 	shortly 	after 	the 	[crime] 	that 	contradicted 	their 	trial
testimony” and enjoyed “favorable treatment offered by the
(continued…)

State v. Cady
20151018-CA 	10 	2018 UT App 8
¶22 	Similarly, 	Robbins 	is 	inapplicable 	here. 	While 	it 	is
understandable that a criminal defendant would want to cast his
argument in terms of inherent improbability—because it allows
a 	court 	to 	reassess 	a 	jury’s 	credibility 	determination—
Defendant’s particular inherent improbability claim is not well
taken. Instead, we consider his to be a garden-variety claim of
insufficient evidence that he unsuccessfully tries to fit into the
inherent-improbability box. At base, he contends that Victim’s
testimony should be disregarded because there was evidence
presented 	that 	arguably 	undercut 	Victim’s 	credibility. 	For
instance, he highlights that Victim “came voluntarily to the
apartment where she knew she would sleep on the same couch
where she later claimed she had been raped” during the January
incident. He also relies on evidence that Victim “threatened a
witness to prevent the jury from hearing credible testimony” and
“failed to indicate nonconsent at the time,” along with “her
boyfriend’s 	testimony 	that 	he 	and 	[Victim] 	had 	sexual
intercourse during her high-risk pregnancy.”6 But none of this
evidence goes to inherent improbability. At best, it operated to
undermine Victim’s credibility by countering her testimony. Cf.
(…continued)
State.” 	Id. 	¶¶ 	39, 	41. 	Our 	supreme 	court 	specified 	that
“inconsistent statements do not render . . . testimony ‘apparently
false’” and that “a plea deal by itself does not come within
shouting distance of successfully demonstrating that a witness’s
testimony is ‘apparently false’ or that it falls under any of the
other 	labels 	we 	have 	used 	to 	describe 	testimony 	that 	a
reasonable jury could not rely upon to convict.” Id.
6. At the time of the object rape and April incident, Victim was
seven months pregnant and had experienced difficulties with the
pregnancy. When she was with Defendant and his wife at their
apartment, Victim had told them that, based on what her doctor
had told her about the pregnancy, she could not have sex. But
there was testimony at trial that Victim and her partner had sex
the day before the April incident.

State v. Cady
20151018-CA 	11 	2018 UT App 8
State v. Garcia-Mejia, 2017 UT App 129, ¶¶ 20–28, 402 P.3d 82
(considering 	a 	claim 	that 	victim 	testimony 	was 	inherently
improbable and concluding that inconsistencies and contrary
evidence did not render the testimony inherently improbable;
instead, it created a credibility issue to be weighed by the jury).
None 	of 	this 	evidence 	leads 	to 	a 	conclusion 	that 	Victim’s
testimony was physically impossible or apparently false. This is
especially 	true 	where 	much 	of 	Victim’s 	testimony 	was
corroborated—by Defendant himself.
¶23 	There is perhaps no 	more axiomatic statement when
reviewing 	jury 	verdicts 	than 	this: 	The 	“choice 	between
conflicting testimony is within the province of the jury.” State v.
Pedersen, 802 P.2d 1328, 1330 (Utah Ct. App. 1990) (cleaned up);
see also State v. Black, 2015 UT App 30, ¶ 19, 344 P.3d 644 (“When
the evidence presented is conflicting or disputed, the jury serves
as the exclusive judge of both the credibility of witnesses and the
weight 	to 	be 	given 	to 	particular 	evidence.” 	(cleaned 	up)).
Because Defendant’s argument regarding inherent improbability
relies on evidence that is neither physically impossible nor
apparently false but instead implicates Victim’s credibility as
compared to other witnesses, we will not disturb the jury’s
verdict.
B. 	Internal Inconsistency
¶24 	When a witness’s testimony is “internally inconsistent
and conflict[s] as to the material elements of the crime charged,”
an 	appellate 	court 	might 	conclude 	that 	the 	evidence 	was
insufficient to support a guilty verdict. See id. at 1330–31. And
“[s]ubstantial 	inconsistencies 	in 	a 	sole 	witness’s 	testimony,
though not directed at the core offense, can create a situation
where 	the 	prosecution 	cannot 	be 	said 	to 	have 	proven 	the
defendant’s guilt beyond a reasonable doubt.” State v. Robbins,
2009 UT 23, ¶ 17, 210 P.3d 288.
¶25 	Defendant argues that the jury’s finding of nonconsent
necessarily 	rested 	on 	Victim’s 	testimony 	and 	that 	Victim’s

State v. Cady
20151018-CA 	12 	2018 UT App 8
testimony thus “had to be credible to support the conviction.”
First, this is not necessarily true. The jury heard the recording of
a police interview with Defendant where he acknowledged that
Victim initially said no to their encounter. And, as previously
mentioned, “ignoring a victim’s ‘no,’ standing alone, may be
sufficient for a conviction for rape, even without the use or
threat of force.” See State v. Hammond, 2001 UT 92, ¶ 17, 34 P.3d
773. Second, even if the jury relied solely on Victim’s testimony
in finding that she did not consent to digital penetration, it was
entitled 	to 	do 	so; 	Defendant 	has 	not 	shown 	that 	any
inconsistencies 	rendered 	Victim’s 	testimony 	such 	that
“reasonable minds must have entertained a reasonable doubt
that [Defendant] committed the crime for which he . . . was
convicted.” See State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719
(cleaned up).
¶26 	Most 	of 	Defendant’s 	argument 	regarding 	internal
inconsistencies is unrelated to Victim’s testimony and is instead
nothing more than a contention that the jury’s verdicts were
inconsistent. See infra Part III. But he also argues, with little
analysis, “In this case, the evidence was inconsistent to prove
object rape.”7 And he insists “there is insufficient evidence in
light of witness testimony that is internally inconsistent.” Yet
Defendant never spells out what these supposed inconsistencies
are. 	Instead, 	he 	establishes 	the 	general 	rule 	that 	internal
7. In making this assertion, Defendant directs our attention to the
instruction in Robbins that a “court may choose to exercise its
discretion to disregard inconsistent witness testimony only when
the court is convinced that the credibility of the witness is so
weak that no reasonable jury could find the defendant guilty
beyond a reasonable doubt.” 2009 UT 23, ¶ 18. But this statement
from Robbins addressed a trial court’s role in “considering a
motion to arrest judgment.” Id. And while Defendant made a
motion to arrest judgment below, he has not asked us to review
the trial court’s ruling on that motion. Thus, this portion of
Robbins is inapplicable.

State v. Cady
20151018-CA 	13 	2018 UT App 8
inconsistencies 	might 	render 	testimony 	unreliable 	and 	then
simply concludes, based on perceived inconsistencies in the
jury’s verdicts, that the rule should apply in this case.
¶27 	Because Defendant has not established what aspects of
Victim’s testimony were internally inconsistent, we reject his
challenge on this basis.8
II. Recklessness
¶28 	Defendant 	also 	contends 	that 	because 	there 	was
insufficient, inherently improbable, and internally inconsistent
evidence of Victim’s nonconsent, the State failed to establish that
he was “aware of but consciously disregard[ed] a substantial
and unjustifiable risk that” Victim did not consent to the digital
penetration. See Utah Code Ann. § 76-2-103(3) (LexisNexis 2012).
Even 	if 	Defendant’s 	argument 	were 	not 	premised 	on 	a
conclusion 	we 	have 	already 	rejected, 	we 	would 	not 	be
convinced.
¶29 	In an interview with 	police—which the jury heard—
Defendant acknowledged that Victim “stopped him at first[,]
saying ‘unh-unh.’” He said that her body language was “back
and forth.” He agreed that when a woman’s body language is
indecisive, “logic would be to take that as no.” He told the police
that he had “fucked up” and “felt like the biggest piece of shit in
the world.” And he admitted unconditionally that his fingers
had 	penetrated 	Victim’s 	vagina. 	These 	statements, 	without
8. 	Commingled 	with 	his 	arguments 	regarding 	inherent
improbability 	and 	internal 	inconsistency 	is 	Defendant’s
pronouncement that “the evidence clearly established two adults
could 	have 	heard 	[Victim] 	if 	she 	had 	wanted 	to 	stop
[Defendant].” This statement is disconnected from any claim
regarding inconsistency or improbability, and we in any event
reject outright the suggestion that a victim is responsible for
stopping her own sexual assault.

State v. Cady
20151018-CA 	14 	2018 UT App 8
reference to any other evidence, demonstrate that Defendant was
aware of a substantial and unjustifiable risk that Victim did not
consent 	to 	digital 	penetration, 	but 	then 	he 	consciously
disregarded that risk by nevertheless digitally penetrating her.
See id.
¶30 	Defendant 	nevertheless 	offers 	explanations 	for 	his
conduct. He told police that, being “a very persuasive person”
and having “a gift with people,” he overcame Victim’s initial
hesitance; in his defense at trial, he claimed she “never directly
said no.” He argues that he encouraged Victim to “tell him to go
away” if she had a problem with his advances. He claims that his
statements regarding messing up and feeling guilty related to
cheating on his wife, not assaulting Victim. He also professes
that he “thought it was consensual.”
¶31 	Again, the jury has the freedom to believe or not to
believe evidence presented to it. See, e.g., State v. Garcia-Mejia,
2017 UT App 129, ¶ 24, 402 P.3d 82. “That it chose not to believe”
Defendant’s assertion that he thought his encounter with Victim
was consensual “does not mean that Defendant’s conviction is
unsupported by the evidence.” See id. This is especially true on
the question of mens rea where the jury heard from Defendant
directly that he heard Victim say “unh-unh” and considered her
body language to be “back and forth.” And Victim testified that
when Defendant asked her if his conduct was okay, she shook
her head no. There was sufficient evidence from which the jury
could 	have 	found 	that 	Defendant 	was 	reckless 	regarding
Victim’s nonconsent, and thus we will not disturb that finding.
III. Inconsistent Jury Verdicts
¶32 	Finally, 	Defendant 	argues 	that 	because 	“the 	jury’s
verdicts are inconsistent,” we are “require[d] . . . to reverse his
object 	rape 	conviction.” 	“When 	considering 	a 	defendant’s
argument that the verdicts are inconsistent,” we will not reverse
unless “reasonable minds could not rationally have arrived at

State v. Cady
20151018-CA 	15 	2018 UT App 8
the 	verdict 	of 	guilty 	beyond 	a 	reasonable 	doubt.” 	State 	v.
LoPrinzi, 2014 UT App 256, ¶ 30, 338 P.3d 253. And
so long as sufficient evidence supports each of the
guilty verdicts, state courts generally have upheld
the 	convictions. 	In 	other 	words, 	a 	claim 	of
inconsistency alone is not sufficient to overturn the
conviction; rather, there must be additional error
beyond 	a 	showing 	of 	inconsistency 	because
appellate 	courts have always resisted 	inquiring
into the jury’s thought processes and deliberations.
Id. (cleaned up). We have already concluded that sufficient
evidence supports Defendant’s conviction for object rape. Thus,
Defendant 	must 	demonstrate 	some 	error 	beyond 	that 	of
inconsistent verdicts. See id. He has not done so. Indeed, he has
failed to demonstrate that the verdicts were even inconsistent.
However, 	in 	part 	because 	Defendant 	devotes 	a 	significant
amount of space 	in 	his brief arguing that the verdicts are
inconsistent, we take the time to address those arguments.
¶33 	In Defendant’s view, we should reverse his conviction for
object rape because the jury acquitted him of rape for both the
January incident and the April incident; he argues that “all three
counts 	rested 	on 	the 	jury’s 	determination 	of 	[Victim’s]
credibility.” He asserts that because nonconsent was an element
of each offense, “if jurors believed her, they would convict on all
counts; if they did not believe her, they would acquit on all
counts.” Implicit in this argument is a conflation of the three
incidents. This is apparent in Defendant’s repeated use of the
term “same incident” when discussing the object rape and the
April incident. Also implicit in this argument is the suggestion
that credibility determinations must be all or nothing. We reject
both of these premises.
¶34 	Defendant 	was 	charged 	with 	three 	crimes 	for 	three
separate encounters. The State was not tasked with proving

State v. Cady
20151018-CA 	16 	2018 UT App 8
nonconsent for all encounters but for each encounter. Stated
another way, the State’s evidence had to separately establish
nonconsent for the January incident, nonconsent for the object
rape, and nonconsent for the April incident. The jury may have
decided that the State did not meet its burden of proving
nonconsent for the January incident or for the April incident but
that it met its burden of proving nonconsent as to the object
rape. There is nothing inconsistent about these verdicts, because
the State introduced different evidence to attempt to establish
nonconsent for each of the three incidents.
¶35 	Regarding the January incident, Victim testified that she
had closed her eyes and remained quiet. This is different from
the evidence of Victim’s “unh-unh” before the object rape. Also
during the January incident, Victim said she started crying
during penetration and reached behind her to push Defendant
away, “but it didn’t work.” This is different from the testimony
that Victim, prior to the object rape, cried, attempted to hold her
pants up, shook her head no, and actually pushed against
Defendant. We do not mean to suggest that there is a checklist of
evidence 	that 	does 	or 	does 	not 	prove 	nonconsent, 	but 	by
contrasting the evidence of nonconsent for these two encounters,
it becomes apparent that the jury could have made separate
determinations on these two charges.
¶36 	Likewise, evidence of nonconsent for the April incident
varied from evidence of nonconsent for the object rape. No
verbal expression preceded the April incident. And while Victim
testified that during both incidents she cried, tried to pull her
pants back up, and remained in fetal position, the jury could
have 	concluded 	that 	Victim’s 	“unh-unh” 	or 	her 	pushing
Defendant away during the object rape—or both—convinced
them of her nonconsent beyond a reasonable doubt. Similarly,
the lack of those behaviors during the April incident might have
left 	a 	reasonable 	doubt 	in 	jurors’ 	minds 	on 	the 	issue 	of
nonconsent.

State v. Cady
20151018-CA 	17 	2018 UT App 8
¶37 	On the other hand, it is possible that neither the quantum
nor quality of nonconsent evidence alone determined the jury’s
verdicts. 	Instead, 	it 	could 	have 	believed 	Victim’s 	claim 	of
nonconsent to the object rape while disregarding her claim of
nonconsent 	to 	both 	the 	January 	and 	the 	April 	incidents.
Defendant suggests that this would require “an improbable and
unreasonable 	conclusion 	that 	[Victim] 	consented 	to 	sexual
intercourse but not to digital penetration.” At first blush, such a
conclusion might seem improbable or unreasonable. But upon
further inspection, it becomes apparent that the jury’s conclusion
was neither.
¶38 	A jury’s finding that the State did not meet its burden of
proof of nonconsent is not a finding of the inverse—that there
was consent—just as a verdict of “not guilty” is not a verdict of
innocence. 	A 	jury 	is 	not 	tasked 	with 	deciding 	all 	issues
absolutely. Instead, we ask only that it decide whether the State
proved all elements of a crime beyond a reasonable doubt. When
its answer is no, the jury enters a verdict of not guilty. When its
answer is yes, it finds a defendant guilty. In the instant case, the
jury answered “no” on the rape charges and “yes” to the object
rape charge. It therefore may have decided only that the State
had not proven nonconsent for the rape charges beyond a
reasonable doubt, nothing more. It did not find, as Defendant
suggests, that Victim “consented to sexual intercourse but not to
digital penetration.”
¶39 	But even if it did, we cannot say that such a conclusion
was not supported by sufficient evidence. The object rape and
the 	April 	incident 	were 	separate 	events. 	Between 	the 	two,
approximately five minutes passed, and Defendant got up, left
the 	room, 	and 	then 	returned. 	It 	is 	not 	improbable 	or
unreasonable, in this case, that an individual would refuse her
consent to one activity and then, later, provide her consent to a
different activity.
¶40 	Given the myriad ways the jury might have reasonably
reached its separate verdicts, we see no inconsistencies in them.

State v. Cady
20151018-CA 	18 	2018 UT App 8
Cf. Neff v. Neff, 2011 UT 6, ¶ 49, 247 P.3d 380 (“[W]ith regard to a
claim that a jury verdict is internally inconsistent, we resolve any
inconsistency in favor of giving effect to a jury verdict.”).
CONCLUSION
¶41 	The evidence presented at trial was sufficient to support
Defendant’s 	conviction 	for 	object 	rape. 	Neither 	inherent
improbabilities nor 	internal 	inconsistencies in 	the 	testimony
provided at trial undermine that conclusion. Furthermore, the
jury’s acquittal of Defendant on the rape charges does not render
the conviction for object rape inconsistent. We thus affirm.9
9. In his brief before this court, Defendant requested that we
correct a clerical error in the record under rule 30(b) of the Utah
Rules of Criminal Procedure. Because the trial court is better
suited to make that correction, and because it is able to do so at
any time under the rule, see Utah R. Crim. P. 30(b), we encourage
Defendant to make the appropriate motion to the trial court.