State v. Miles

2020 UT App 120
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
T HOMAS J EFFREY MILES ,
Appellant.
Opinion
No. 20150809-CA
Filed August 20, 2020
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 141910634
Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
J UDGE KATE A PPLEBY authored this Opinion, in which J UDGES
J ILL M. P OHLMAN and D IANA HAGEN concurred.
APPLEBY, Judge:
¶1 	A 	jury 	convicted 	Thomas 	Jeffrey1 	Miles 	of 	forcible
sodomy, a first-degree felony. Miles appeals, arguing his trial
counsel 	provided 	constitutionally 	ineffective 	assistance 	by
failing to object to the jury instruction on the mens rea element
of recklessness and by not introducing certain evidence at trial.
We temporarily remanded this case to the district court to enter
additional findings related to the latter argument but are not
1. We are unsure what is the correct spelling of Miles’s middle
name 	because 	documents 	within 	the 	record 	use 	various
spellings. This opinion adopts the spelling used in the charging
document.

State v. Miles
20150809-CA 	2 	2020 UT App 120
persuaded that Miles received ineffective assistance of counsel
on either claim. Thus, we affirm.
BACKGROUND2
¶2 	Miles posted an advertisement on a website known as
Craigslist, seeking an “obedient submissive slut needed for
group use” (the Craigslist ad). The Craigslist ad sought a partner
willing to participate in various sexual activities, including “hair
pulling, 	bondage, 	face 	smacking, 	double 	penetration, 	face
fucking, choking, spanking and just rough sex in general.” The
Craigslist 	ad 	“included 	a 	questionnaire 	which 	asked 	. 	. 	.
responding 	part[ies] 	to 	provide” 	their 	“name, 	age, 	height,
weight, bra size, race, experience level, done dp, and limits.” A
woman (M.C.) responded to the Craigslist ad through an email
that said, “I think I’m what you’re looking for”; included her
age, 	height, 	weight, 	bust 	measurements, 	and 	race; 	and
responded to the questionnaire as follows:
Have you done dp? No
Limits: None
Tell us how you like to get fucked: From behind[3]
M.C. also sent Miles a video of herself masturbating.
2. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly. We present conflicting evidence
when necessary to provide a full and fair understanding of the
issues on appeal.” State v. Scott, 2020 UT 13, ¶ 5 n.3, 462 P.3d 350
(quotation simplified).
3. M.C. testified that she understood this to mean “[v]aginal
intercourse from behind.”

State v. Miles
20150809-CA 	3 	2020 UT App 120
¶3 	Miles and M.C. exchanged a series of sexually explicit
emails, but a few days later, M.C. said she “was no longer
curious 	and 	was 	starting 	to 	be 	a 	little 	afraid 	of 	[Miles’s]
aggressive nature,” so she “stopped replying.” Miles, armed
with M.C.’s name, found her profile on a social media site and
used it to identify her employer and the university she was
attending. He emailed M.C., “Hey slut[4] if you don’t come take
my cock I’m going to forward this video [of M.C. masturbating]
to the head of human resources at [M.C.’s employer]. Come be a
good little slut and I’ll delete it.” M.C. responded, “Hey. I’m
sorry this isn’t going to work out. . . . Good luck finding
someone, I’m sure you’ll all have a lot of fun together.” But
Miles replied, “Your life will be just fine if you obey me and do
as you’re told slut. . . . So are you going to be a good slut and do
as you’re told? I want you to come over . . . .”
¶4 	M.C. did not respond, and Miles sent her another email
that threatened to forward their email correspondence and the
video of M.C. to her employer, the university, and a local news
station if she did not meet him for a sexual encounter. Miles
wrote, “I think not only will you lose your job but you’ll be on
the news and your reputation will probably be ruined.” At trial,
Miles claimed that after he sent that email, he “recanted [the]
statement and told her she did not have to have sex with [him]
or anything she did not want to do before she came over.” But
M.C. denied he withdrew the threat. Much of the parties’ email
correspondence, 	including 	the 	one 	email 	purportedly
withdrawing Miles’s threat, was never recovered and thus not
introduced at trial.
¶5 	M.C. agreed to meet Miles in a parking lot and from there
followed him to his residence. She said she did not want to meet
him 	but 	she 	“was 	scared 	of 	[the] 	repercussions” 	with 	the
4. 	Miles 	testified 	that 	the 	Craigslist 	ad 	sought 	“someone
submissive,” that he was a “dominant,” and that calling M.C.
“degrading names” was “all part of the role-play.”

State v. Miles
20150809-CA 	4 	2020 UT App 120
university and her employer and did not “want to embarrass”
herself or her family.
¶6 	Once at Miles’s residence, Miles “immediately” told M.C.
to undress, and she complied. The two engaged in five sexual
acts in the following order: oral sex, vaginal sex, anal sex, oral
sex, and vaginal sex. After the first instance of oral sex, Miles
“told 	[M.C.] 	to 	get 	on 	the 	bed 	face 	down” 	and 	then 	he
handcuffed 	her 	hands 	behind 	her 	back. 	M.C. 	remained
handcuffed during the first act of vaginal sex and during the
anal sex.
¶7 	During 	the 	anal 	sex, 	M.C. 	testified 	that 	she 	was
crying and told Miles, “no,” “stop,” and that “it hurt.” Miles
testified 	that 	that, 	before 	engaging 	in 	anal 	sex, M.C. 	“said
she could handle it” and that they had anal sex “for about
a 	minute 	to 	a 	minute 	and 	a 	half” 	until 	“she 	said 	she
couldn’t handle it anymore,” when he “immediately stopped.”
But M.C. testified Miles “continued to penetrate [her] until he
ejaculated.” After the anal sex, Miles briefly left the room with
M.C. 	lying 	face 	down 	on 	the 	bed 	with 	her 	hands 	still
handcuffed. When Miles returned, he uncuffed M.C. and the two
smoked 	marijuana 	before 	again 	engaging 	in 	oral 	and
vaginal sex.
¶8 	Miles testified that after all the sex acts, M.C. “left rather
abruptly.” He said M.C. was “visibly upset,” “[h]er face was a
little red, and she had some tears coming down her face. She was
crying a little bit.” Miles said she “seem[ed] a little bit upset that
[he] wanted to see her again.” M.C., on the other hand, testified
that 	she 	was 	“crying 	and 	. 	. 	. 	saying 	no” 	throughout 	the
encounter.
¶9 	A 	few 	days 	later, 	Miles 	contacted 	M.C. 	and 	said
he deleted the video she sent him, but then he claimed he
took 	photographs 	and 	videos 	of 	their 	sexual 	encounter
and threatened to send them to the media. At that point, M.C.
contacted the police. The State charged Miles with two counts
of 	rape (based on the instances of 	vaginal sex), and three

State v. Miles
20150809-CA 	5 	2020 UT App 120
counts of forcible sodomy (based on the instances of oral sex and
the instance of anal sex).
¶10 	The case proceeded to a jury trial at which M.C. and
Miles 	each 	testified. 	The 	Craigslist 	ad 	was 	not 	introduced
into 	evidence. 	M.C. 	testified 	she 	could 	not 	“remember
the [Craigslist ad’s] exact wording.” Miles testified that the
title 	did 	not 	“reflect 	the 	actual 	ad” 	and 	that 	there 	was
something “else” in it, but he did not testify to the ad’s contents
other than that it included the questionnaire, which he said he
wrote.
¶11 	The 	State 	advanced 	three 	theories 	to 	support 	M.C.’s
lack of consent to the sexual acts. Its primary argument was
that 	Miles 	extorted 	M.C. 	when 	he 	threatened 	to 	forward
their correspondence and the video of M.C. to her employer,
the university, and the media. The State also argued that M.C.
“told [Miles] no,” “to stop,” that he “was hurting her,” and that
“she wanted to leave” throughout the encounter, but Miles “still
had to finish.” The State also argued that Miles overcame M.C.
“through the application of physical force or violence” because
he moved her head while she gave him oral sex and he put her
in handcuffs. Miles’s defense was that M.C. consented to all
sexual acts.
¶12 	The district court instructed the jury, as relevant here, that
to find Miles guilty of forcible sodomy for the anal sex (Count 3),
it 	must 	“find 	beyond 	a 	reasonable 	doubt” 	that 	Miles
“intentionally, knowingly, or recklessly committed a sexual act
involving any touching of the skin, however slight, of [his]
genitals . . . and the . . . anus of . . . M.C.; without M.C.’s consent;
and [Miles] acted with intent, knowledge or recklessness that
M.C. did not consent.”
¶13 	In 	addition 	to 	instructions 	pertaining 	to 	intent 	and
knowledge, with “[n]o objection” from Miles’s defense counsel
(Trial Counsel), the court instructed the jury that

State v. Miles
20150809-CA 	6 	2020 UT App 120
A person acts “recklessly” when he is aware of a
substantial and unjustifiable risk that:
1. 	certain 	circumstances 	exist 	relating 	to 	his
conduct; or
2. his conduct will cause a particular result, but he
consciously disregards the risk, and acts anyway.
The nature and extent of the risk must be of such a
magnitude that disregarding it is a gross deviation
from what an ordinary person would do in that
situation.
“Conduct” means either an act or an omission.
¶14 	The jury acquitted Miles on the four counts stemming
from oral and vaginal sex and convicted him of forcible sodomy
for Count 3.
Rule 23B Remand
¶15 	Miles timely appealed, claiming, among other things, that
he 	received 	ineffective 	assistance 	of 	counsel 	because 	Trial
Counsel did not introduce the contents of the Craigslist ad into
evidence. As part of his appeal, Miles asked us for a temporary
remand to the district court pursuant to rule 23B of the Utah
Rules of Appellate Procedure so the court could make additional
findings. We granted his motion and remanded to the court to
enter factual findings related to:
1. The content of the Craigslist ad;
2. The details available to defense counsel relating
to the content of the Craigslist ad; and
3. 	Counsel’s 	reasons 	for 	not 	investigating 	and
introducing the content of the Craigslist ad at trial.

State v. Miles
20150809-CA 	7 	2020 UT App 120
¶16 	At 	the 	rule 	23B 	hearing, 	the 	Craigslist 	ad 	was 	not
introduced, but Trial Counsel, Miles, and M.C. testified to its
contents. Trial Counsel testified that he had a copy of the
Craigslist ad at the time of trial but chose not to use it because he
“knew [he] would be able to elicit” the information from M.C.
and Miles. He also said he did not want to send “a printed
log . . . into the jury room” because it could have made Miles
“look more . . . reprehensible” to the jury. Trial Counsel also
testified that the Craigslist ad included “group sex” and “anal
sex” and that Miles told him “specifically” what the ad said,
although he could not recall its contents at the time of the rule
23B hearing.
¶17 	Miles testified that the Craigslist ad had “a detailed list of
the sexual activities,” which included “double penetration” and
“anal sex.” M.C.’s testimony refuted Miles’s claim that anal sex
was 	mentioned 	in 	the 	Craigslist 	ad 	and 	characterized 	his
testimony as “incorrect and a lie.”
¶18 	After taking the matter under advisement, the district
court entered factual findings that (1) the Craigslist ad included
“hair pulling, bondage, face smacking, double penetration, face
fucking, choking, spanking and just rough sex in general,” but
did not include anal sex; (2) Trial Counsel had a copy of the
Craigslist ad at the time of trial, discussed it with Miles, and
investigated 	the 	ad’s 	contents; 	and 	(3) 	after 	Trial 	Counsel
“considered 	the 	evidential 	value 	of 	the 	Craigslist 	ad,” 	he
“intentionally chose not to introduce it,” for the “strategic”
reasons enumerated by Trial Counsel at the rule 23B hearing.
The matter is before us again.
ISSUES AND STANDARDS OF REVIEW
¶19 	Miles argues Trial Counsel rendered ineffective assistance
of counsel in two respects. First, he claims Trial Counsel was
ineffective 	when 	he 	did 	not 	object 	to 	the 	jury 	instructions
defining recklessness. “When a claim of ineffective assistance of

State v. Miles
20150809-CA 	8 	2020 UT App 120
counsel is raised for the first time on appeal, there is no lower
court 	ruling 	to 	review 	and 	we 	must 	decide 	whether 	the
defendant was deprived of the effective assistance of counsel as
a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587 (quotation simplified).
¶20 	Miles also argues Trial Counsel was ineffective for failing
to introduce the contents of the Craigslist ad as evidence at trial.5
Following our temporary remand under rule 23B of the Utah
Rules of Appellate Procedure, the district court held a hearing
and made factual findings relevant to this claim. “We defer to
those factual findings, but determine as a matter of law whether
[Miles] received ineffective assistance of counsel . . . .” See State v.
Maestas, 	2000 	UT 	App 	22, 	¶ 	10, 	997 	P.2d 	314 	(quotation
simplified). And “we [will] set aside the rule 23B court’s factual
findings only if they are against the clear weight of the evidence
or if we otherwise reach a definite and firm conviction that a
mistake has been made.” State v. Drommond, 2020 UT 50, ¶ 56
(quotation simplified).
ANALYSIS
I. Recklessness Instruction
¶21 	Miles argues Trial Counsel rendered ineffective assistance
by 	failing 	to 	object 	to 	the 	erroneous 	jury 	instruction 	on
recklessness. To establish ineffective assistance of counsel, Miles
5. Miles also claims the cumulative effect of both alleged errors
identified on appeal warrant reversal. “A reviewing court will
reverse a jury verdict under the cumulative error doctrine only if
the 	cumulative 	effect 	of 	the 	several 	errors 	undermines
confidence that a fair trial was had.” State v. Carrick, 2020 UT
App 18, ¶ 25 n.4, 458 P.3d 1167 (quotation simplified). Because
Miles has not successfully demonstrated error on appeal, “there
are no errors to cumulate, and the doctrine is inapplicable.” Id.

State v. Miles
20150809-CA 	9 	2020 UT App 120
must 	show 	both 	that 	Trial 	Counsel’s 	performance 	was
objectively 	deficient 	and 	that 	the 	deficient 	performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The “inability to establish either element defeats a claim for
ineffective assistance of counsel.” State v. Lopez, 2019 UT App 11,
¶ 23, 438 P.3d 950 (quotation simplified). We agree that the jury
instruction 	was 	legally 	incorrect, 	but 	even 	assuming 	Trial
Counsel performed deficiently by not objecting to it, Miles has
failed to carry the heavy burden of demonstrating he was
prejudiced by the error.
¶22 	“An individual commits forcible sodomy when the actor
commits sodomy upon another without the other’s consent.”
Utah Code Ann. § 76-5-403(2) (LexisNexis Supp. 2019).6 Because
the forcible sodomy statute does not specify a mens rea, “we
must turn to Utah Code section 76-2-102, which directs that
‘when the definition of the offense does not specify a culpable
mental state and the offense does not involve strict liability,
intent, 	knowledge, 	or 	recklessness 	shall 	suffice 	to 	establish
criminal responsibility.’” State v. Nunez-Vasquez, 2020 UT App
98, ¶ 45 (quoting Utah Code Ann. § 76-2-102 (LexisNexis 2017)).
Thus, to convict Miles of forcible sodomy for Count 3, the State
had to prove both that (1) Miles knowingly, intentionally, or
recklessly had anal sex with M.C. without her consent and (2)
Miles acted knowingly, intentionally, or recklessly as to M.C.’s
lack of consent. See State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676
(explaining the defendant’s mens rea as to the victim’s consent is
a required element of rape). The instructions correctly informed
the jury it must “find beyond a reasonable doubt” that Miles
“intentionally, knowingly, or recklessly committed a sexual act
involving any touching of the skin, however slight, of [his]
genitals . . . and the . . . anus of . . . M.C. without M.C.’s consent
6. Because the provisions of the statute have not changed in any
way material to our analysis, we cite the current version of the
Utah Code for convenience.

State v. Miles
20150809-CA 	10 	2020 UT App 120
and [Miles] acted with intent, knowledge, or recklessness that
M.C. did not consent.” (Quotation simplified.)
¶23 	But the jury instructions were erroneous because they did
not fully articulate the definition of recklessness. The jury was
instructed, in relevant part,
A person acts ‘recklessly’ when he is aware of a
substantial and unjustifiable risk that:
1. 	certain 	circumstances 	exist 	relating 	to 	his
conduct; or
2. his conduct will cause a particular result, but he
consciously disregards the risk, and acts anyway.
By contrast, Utah Code section 76-2-103(3) explains,
A person engages in conduct: . . . Recklessly with
respect to circumstances surrounding his conduct
or the result of his conduct when he is aware of but
consciously 	disregards 	a 	substantial 	and
unjustifiable risk that the circumstances exist or the
result will occur. The risk must be of such a nature
and degree that its disregard constitutes a gross
deviation 	from 	the 	standard 	of 	care 	that 	an
ordinary 	person 	would 	exercise 	under 	all 	the
circumstances 	as 	viewed 	from 	the 	actor’s
standpoint.
¶24 	The jury instructions correctly informed the jury that
Miles would have had to be aware of but consciously disregard
the risk that his conduct would cause a particular result. But the
instructions provided that Miles only had to have been aware of a
substantial 	and 	unjustifiable 	risk 	that 	circumstances 	existed
relating to his conduct—that is, that M.C. did not consent to anal
sex. The instructions did not articulate that Miles would have
had to consciously disregard the risk that M.C. did not consent to
anal sex once he became aware of the risk, and thus, they were

State v. Miles
20150809-CA 	11 	2020 UT App 120
legally incorrect. See State v. Liti, 2015 UT App 186, ¶¶ 14–16, 355
P.3d 1078 (determining recklessness instruction was incorrect
because it did not follow the statutory language).
¶25 	We need not decide whether the failure to object to the
erroneous jury instruction fell below an objective standard of
reasonableness. Even assuming Trial Counsel’s performance was
deficient 	in 	this 	regard, 	we 	conclude 	that 	Miles 	has 	not
established prejudice because we are not persuaded there is a
reasonable likelihood that the result of Miles’s trial would have
been different.
¶26 	To 	determine 	whether 	Miles 	was 	prejudiced 	by 	the
erroneous 	recklessness 	instruction, 	we 	“must 	consider 	the
totality of the evidence before the . . . jury and then ask if [Miles]
has met the burden of showing that the decision reached would
reasonably likely have been different absent the error[].” See
State v. Garcia, 2017 UT 53, ¶ 	42, 424 P.3d 171 (quotation
simplified). “Prejudicial error occurs when there is a reasonable
probability that but for the alleged errors, the result of the
proceeding would have been different.” State v. Norton, 2020 UT
46, ¶ 35 (quotation simplified). “To determine whether the
omission of an element from a jury instruction is prejudicial, we
analyze 	whether 	the 	record 	contains 	evidence 	that 	could
rationally lead to a contrary finding with respect to the omitted
element.” Id. ¶ 41 (quotation simplified). Because there was
overwhelming evidence in the record to support a finding that
Miles consciously disregarded M.C.’s lack of consent to the anal
sex, he has not overcome the “relatively high hurdle” of proving
he was prejudiced by the recklessness instruction. See Garcia,
2017 UT 53, ¶ 44.
¶27 	First, although the jury instruction defining recklessness
was erroneous, in this case it is a distinction without a difference.
Based on the instructions, the jury could have found Miles was
aware of a substantial and unjustifiable risk as to M.C.’s lack of
consent. The instructions also required the jury to find that Miles
“acted with intent, knowledge or recklessness that M.C. did not

State v. Miles
20150809-CA 	12 	2020 UT App 120
consent” (emphasis added), which defeats his argument that he
could have been convicted even if the jury believed his account
that he “immediately stopped” as soon as he knew M.C.’s
consent ended. Because the jury had to at least find Miles acted
despite the risk that M.C. did not consent to the anal sex, Miles
was not prejudiced by the erroneous jury instruction.
¶28 	Further, the State presented multiple theories of Miles’s
intent, knowledge, or recklessness as to M.C.’s consent. Its main
argument 	was 	that 	Miles 	extorted 	M.C. 	by 	threatening 	to
forward their correspondence and the video of M.C. to her
employer, the university, and the media. The State also argued
that M.C. “told [Miles] no,” “to stop,” that he “was hurting her,”
and that “she wanted to leave,” but Miles “still had to finish.” In
addition, the State argued Miles overcame M.C. “through the
application of physical force or violence” because he put M.C. in
handcuffs before they engaged in anal sex.
¶29 	Under 	any—or 	a 	combination 	of—these 	theories, 	the
evidence 	was 	overwhelming 	that 	Miles 	at 	least consciously
disregarded the risk that M.C. did not consent to anal sex. As to
the extortion theory, the State introduced multiple emails from
Miles to M.C. that threatened her job, her status at the university,
and her reputation if she failed to meet him for the desired
sexual acts. The State also introduced the email from M.C. that
said she was no longer interested in meeting Miles. And M.C.
testified that she did not want to meet Miles but did so solely for
the purpose of preventing him from releasing the emails and
video.
¶30 	Additionally, M.C. and Miles each testified that, at some
point 	during 	the 	anal 	sex, 	M.C. 	voiced, 	at 	a 	minimum,
discomfort. Not only did M.C. testify that she was crying and
said “no,” “stop,” and “it hurt” throughout the anal sex, Miles
also 	admitted 	that 	she 	told 	him 	“she 	couldn’t 	handle 	it
anymore.” This statement, combined with M.C.’s testimony, is
compelling proof that Miles was aware M.C.’s consent had
ended. Miles argues that M.C.’s statement that the “it” in “I can’t

State v. Miles
20150809-CA 	13 	2020 UT App 120
handle 	it 	anymore” 	could 	have 	been 	“the 	speed 	of 	the
intercourse,” the “roughness of the anal sex,” or the “way Miles
was ‘moving back and forth.’” (Quotation simplified.) In other
words, he suggests that what M.C. said was ambiguous, and
therefore he did not consciously disregard the risk that she
withdrew her consent. But he also testified that he “immediately
stopped” 	once 	M.C. 	made 	the 	statement, 	which 	shows 	he
understood M.C. meant “it” to be the anal sex. If the jury
credited M.C.’s account that Miles ignored M.C.’s protests and
“continued to penetrate [her] until he ejaculated,” the evidence
presented would be overwhelming that he at least consciously
disregarded the risk of her non-consent. Put another way, under
this theory, the verdict turned on whether the jury believed
Miles’s claim that he “immediately stopped.” If the jury found
that he did not, Miles’s own admission that he understood M.C.
wanted him to stop would establish that he acted with the
requisite mens rea. Thus, there is no reasonable likelihood that
the error in the recklessness instruction affected the verdict.
¶31 	Miles argues that, because he was acquitted of the other
four counts, “there [i]s a reasonable likelihood of a different
result but for the omission in the recklessness instruction.” While
at first blush, it seems inconsistent that the jury would acquit on
the first two counts, convict on the third, and acquit on the last
two, we “must consider the totality of the evidence before the . . .
jury and then ask if the defendant has met the burden of
showing that the decision reached would reasonably likely have
been different absent the error[].” State v. Parkinson, 2018 UT
App 62, ¶ 12, 427 P.3d 246 (quotation simplified). And the
totality of the evidence before the jury in this case establishes
there was more evidence that M.C. vocalized her lack of consent
to the anal sex than to the other sex acts. Indeed, both Miles and
M.C. testified to that fact. Their testimonies only differed in
regard to whether Miles “immediately stopped,” as he claimed
or, as M.C. testified and the State argued in closing, whether
Miles continued despite her protests because he “had to finish.”
Even if the jury did not credit M.C.’s testimony “lock, stock, and
barrel” because it acquitted Miles of the other four counts, see

State v. Miles
20150809-CA 	14 	2020 UT App 120
State v. Barela, 2015 UT 22, ¶ 30, 349 P.3d 676, it does not
necessarily follow that there is a reasonable likelihood that the
jury would have acquitted on Count 3 had the recklessness
instruction been different. Instead, it is more likely that the
evidence of the extortion, the testimony from M.C. and Miles
that M.C. said no during anal sex, and the evidence that Miles
restrained M.C. resolved any reasonable doubt the jury may
have had about M.C.’s lack of consent to the anal sex.
¶32 	Because there is overwhelming evidence in the record
supporting 	the 	conclusion 	that 	Miles 	at 	least 	consciously
disregarded 	the 	risk 	of 	M.C.’s 	non-consent, 	there 	is 	no
reasonable probability that the result would have been different
if the jury instructions had properly included that language.
Therefore, Miles has not established he was prejudiced when
Trial 	Counsel 	did 	not 	object 	to 	the 	erroneous 	recklessness
instruction. Accordingly, his ineffective assistance of counsel
claim on this issue fails.
II. Failure to Introduce Contents of the Craigslist Ad
¶33 	Miles next argues he received ineffective assistance of
counsel because Trial Counsel did not introduce the contents of
the Craigslist ad at trial. As part of this claim, he alleges the
district court clearly erred in determining the Craigslist ad did
not include “anal sex” in the list of sexual activities Miles sought.
A. 	The District Court’s Factual Findings Are Not Clearly
Erroneous
¶34 	Miles argues the district court’s finding on remand that
anal sex was not listed in the Craigslist ad was against the clear
weight of the evidence. He points out that, of the three witnesses
who testified at the rule 23B hearing, two (Miles and Trial
Counsel) 	testified 	that 	the 	ad 	included 	anal 	sex. 	In 	the
alternative, Miles argues, even if that finding is not clearly
erroneous, “the Craigslist ad alluded to anal sex by seeking a
partner willing to engage in ‘double penetration.’” Following a

State v. Miles
20150809-CA 	15 	2020 UT App 120
rule 23B hearing, we review the district court’s factual findings
for clear error. State v. Kozlov, 2012 UT App 114, ¶ 65, 276 P.3d
1207. To demonstrate clear error, Miles “bears the heavy burden
of demonstrating that the finding is clearly erroneous and must
do 	so 	by 	showing 	that 	the 	finding 	is 	without 	adequate
evidentiary support or was induced by an erroneous view of the
law.” R.B. v. L.B., 2014 UT App 270, ¶ 26, 339 P.3d 137. And
because of the district court’s “advantaged position in observing
the witnesses firsthand,” we defer to its credibility findings. In re
J.E.G., 2020 UT App 94, ¶ 24; State v. Skinner, 2020 UT App 3,
¶ 20, 457 P.3d 421.
¶35 	On remand, the district court was asked to enter findings,
as 	relevant 	to 	this 	analysis, 	related 	to 	the 	contents 	of 	the
Craigslist ad. Trial Counsel, Miles, and M.C. each testified at the
rule 23B hearing. Trial Counsel testified that the ad included
“talk of anal sex,” and Miles testified that the ad included “anal
sex” and “double penetration.” M.C. refuted that anal sex was in
the ad as “a lie,” although she could not recall the ad’s specific
wording and she “did not dispute that the ad sought a partner
willing to participate in ‘double penetration.’”7
¶36 	In its factual findings, the district court determined “anal
sex” was not in the Craigslist ad because M.C. was “a more
credible witness than . . . Miles.” Although the court did not
opine on Trial Counsel’s credibility as to this point, it did note
that Trial Counsel “testified that he did not recall the specific
contents of the Craigslist ad” and that Trial Counsel thought
M.C.’s “testimony at trial seemed ‘honest and up-front about
what was in the ad and what took place.’”
7. Although M.C. and Miles agree that the ad “sought a partner
willing 	to 	participate 	in 	‘double 	penetration,’” 	each 	party
ascribed a different meaning to the term. On appeal, Miles
asserts “double penetration” encompasses a combination of anal,
oral, and vaginal sex, but no evidence at trial or at the rule 23B
hearing indicates that this is what M.C. understood it to mean.

State v. Miles
20150809-CA 	16 	2020 UT App 120
¶37 	Given the evidence relied on by the court, it was not
clearly erroneous for it to find that the Craigslist ad did not
include anal sex in its list of sexual activities. And as Miles
argues, “double penetration” merely “suggests that the act of
penetration is ‘double’” and can encompass any combination of
anal, oral, and vaginal sex. Accordingly, it does not follow that
“double 	penetration” 	definitively 	includes 	anal 	sex 	in 	each
instance, and Miles has not presented sufficient evidence to
prove otherwise.
B. 	Trial Counsel Was Not Objectively Deficient
¶38 	As noted above, to prevail on a claim of ineffective
assistance 	of 	counsel, 	the 	appellant 	must 	establish 	both
objectively 	deficient 	performance 	by 	counsel 	and 	prejudice.
Strickland 	v. 	Washington, 	466 	U.S. 	668, 	687 	(1984). 	When
determining 	whether 	counsel 	rendered 	objectively 	deficient
performance, we consider “all the circumstances” and “indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Furthermore, we
give wide latitude to trial counsel to make tactical decisions and
will not question such decisions unless there is no reasonable
basis supporting them.” State v. Gallegos, 2020 UT 19, ¶ 34, 463
P.3d 	641 	(quotation 	simplified). 	Miles 	has 	not 	shown 	Trial
Counsel was objectively unreasonable when he chose not to
introduce the contents of the Craigslist ad into evidence.
¶39 	Miles contends that if the contents of the Craigslist ad had
been introduced during trial, the jury would have acquitted him
of Count 3 because the ad specified anal sex as one of many
sexual acts in which he sought a partner to engage.8 But the
8. We also note that even if the Craigslist ad could be used to
infer 	M.C.’s 	initial 	willingness 	to 	consent 	to 	any 	of 	the
enumerated sexual acts within it, she was free to withhold or
withdraw her consent at any point. See, e.g., In re J.A.M., 2020 UT
App 103, ¶ 17.

State v. Miles
20150809-CA 	17 	2020 UT App 120
district court, upon remand, determined the ad did not include a
reference to anal sex, and as explained supra ¶¶ 34–37, Miles has
not met the burden to overturn the court’s factual finding. See
Brown v. State, 2013 UT 42, ¶ 69 n.63, 308 P.3d 486 (“The burden
of 	overturning factual findings 	is a heavy one.” (quotation
simplified)).
¶40 	“The threshold question under Strickland is not whether
some strategy other than the one that counsel employed looks
superior 	given 	the 	actual 	results 	of 	trial. 	It 	is 	whether 	a
reasonable, competent lawyer could have chosen the strategy
that was employed in the real-time context of trial.” State v.
Barela, 2015 UT 22, ¶ 21, 349 P.3d 676. “Trial counsel is not
deficient when making tactical decisions, and courts will not
question such decisions unless there is no reasonable basis
supporting them.” State v. Morley, 2019 UT App 172, ¶ 30, 452
P.3d 529 (quotation simplified).
¶41 	Trial Counsel explained that he did not introduce the
Craigslist ad into evidence because he thought he would be able
to 	elicit 	the 	same 	information 	through 	M.C.’s 	and 	Miles’s
testimony. He also did not want to introduce a “printed log” that
could have made Miles “look more . . . reprehensible” to the
jury, and although the district court found Trial Counsel was
“inconsistent on this point,” Trial Counsel also said “[h]e did not
think the ad was exculpatory or relevant to consent.” Trial
Counsel also expressed the opinion “[t]hat a Utah jury would
have difficulty accepting that anybody would consent to anal
sex.” Under the circumstances of this case, it was objectively
reasonable for Trial Counsel to choose to rely on testimony to
introduce evidence of the contents of the Craigslist ad instead of
the ad itself.
¶42 	Because “[w]e may not evaluate counsel’s conduct from
the hindsight-biased vantage point of the appeal,” and instead
“must 	consider 	whether 	[Trial 	Counsel’s] 	decision 	to 	[not
introduce the contents of the Craigslist ad] was reasonable at the
time he made this decision,” see Barela, 2015 UT 22, ¶ 22, we

State v. Miles
20150809-CA 	18 	2020 UT App 120
conclude Trial Counsel’s decision was objectively reasonable
trial strategy, see Gallegos, 2020 UT 19, ¶ 47 (“The Strickland
inquiry is objective, not subjective.”). And although the ultimate
determination 	of 	deficient 	performance 	does 	not 	require 	a
finding of reasonable trial strategy, “[i]f an attorney’s decisions
can be explained by a reasonable trial strategy, the defendant has
necessarily failed to show deficient performance.” Id. ¶ 56; see
also State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350; State v. Ray,
2020 UT 12, ¶ 34.
¶43 	Because there are several objectively reasonable strategies
behind Trial Counsel’s choice to not introduce the contents of the
Craigslist ad into evidence, Miles “has necessarily failed to show
deficient 	performance.” 	See 	Gallegos, 	2020 	UT 	19, 	¶ 	56.
Accordingly, his ineffective assistance of counsel claim fails.
CONCLUSION
¶44 	Miles 	has 	not 	shown 	that 	he 	received 	ineffective
assistance of counsel because he was not prejudiced by the
erroneous jury instruction and he has not demonstrated Trial
Counsel’s failure to introduce the contents of the Craigslist ad
was objectively deficient performance.
¶45 	Affirmed.