State v. Black

2026 UT App 114 THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. RAYMOND MERLE 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 DAVID N. MORTENSEN authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER 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 BACKGROUND 1 ¶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. 20230342-CA 2 2026 UT App 114  State v. Black 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.” 20230342-CA 3 2026 UT App 114  State v. Black ¶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. 20230342-CA 4 2026 UT App 114  State v. Black 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. 20230342-CA 5 2026 UT App 114  State v. Black 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 20230342-CA 6 2026 UT App 114  State v. Black 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,” 20230342-CA 7 2026 UT App 114  State v. Black 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. 20230342-CA 8 2026 UT App 114  State v. Black ¶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 20230342-CA 9 2026 UT App 114  State v. Black 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 . . . .”). 20230342-CA 10 2026 UT App 114  State v. Black 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…) 20230342-CA 11 2026 UT App 114  State v. Black 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. 20230342-CA 12 2026 UT App 114  State v. Black ¶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 20230342-CA 13 2026 UT App 114  State v. Black 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.” 20230342-CA 14 2026 UT App 114  State v. Black ¶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 20230342-CA 15 2026 UT App 114  State v. Black 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 20230342-CA 16 2026 UT App 114  State v. Black 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) 20230342-CA 17 2026 UT App 114  State v. Black (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 20230342-CA 18 2026 UT App 114  State v. Black 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…) 20230342-CA 19 2026 UT App 114  State v. Black ¶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