State v. Newton

TOOMEY, Judge

Opinion Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 121905738 Ronald J. Yengich, Attorney for Appellant Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred. TOOMEY, Judge: ¶1 A jury convicted Brian Newton of one count of first-degree aggravated sexual assault and one count of third-degree aggravated assault. After trial, Newton obtained new counsel and filed a motion to arrest judgment and for a new trial (the Motion for New Trial), claiming a jury instruction error, a Brady violation related to Victim's cell phone, and four instances of ineffective assistance of trial counsel. The district court denied the Motion for New Trial. We agree with the district court that there was no error in the jury instruction, that the State did not commit a Brady violation, and that the evidence on Victim's phone was neither material nor exculpatory. Because Newton fails to address the district court's ruling on the remaining ineffective assistance of counsel claims, we decline to address them on appeal. Accordingly, we affirm.

Brady v. Maryland, 373 U.S. 83, 86-87 (1963) ("[T]he suppression by the prosecution of evidence favorable to an accused upon request violates [the Due Process Clause of the Fourteenth Amendment] where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.").

BACKGROUND

¶2 Victim attended a party at a friend's house where she met Newton and his girlfriend. Everyone at the party had been consuming alcohol. Victim spoke with Newton at the party but felt uncomfortable around him, at first, and told him that she thought "he was weird and creepy." But he was "nice after that." ¶3 The party continued through the early morning hours of the following day. At around 3:00 a.m., Newton asked Victim if she wanted to leave and get something to eat. Victim agreed, stating that she "didn't want to fall asleep" because she was waiting for her boyfriend. Newton first drove Victim to a fast food restaurant where Newton ordered food. He then drove Victim to a truck stop and parked in a dark part of the parking lot, away from other vehicles. the State committed a Brady violation when it did not conduct a forensic examination of Victim's cell phone. ¶12 The court first addressed the jury instruction claim. The jury was instructed that to convict Newton of aggravated sexual assault, the jury was required to find:

1. The defendant, BRIAN NEWTON,
2. In the course of committing rape,
3. Did any one of the following:

a. Used, or threated [Victim] with the use of, a dangerous weapon, or
b. Compelled, or attempted to compel, [Victim] to submit to rape, by threat of kidnapping, death, or serious bodily injury to be inflicted imminently on any person; and

4. The defendant acted intentionally, knowingly, or recklessly.

exculpatory evidence contained within it.'" (Quoting Utah R. Crim. P. 16(a)(5).) The police did not conduct a forensic examination of Victim's cell phone, but the State provided trial counsel with the "call and text records" obtained from it. Following the Motion for New Trial, the court determined that the content of the phone and its condition when found were relevant to Newton's post-trial claims and ordered a "full forensic examination of the cell phone." ¶15 The forensic analysis revealed that Victim entered Newton's name and cell phone number into her phone at around 3:09 a.m., shortly after they left the party and prior to the rape. It also revealed a "series of phone calls and text messages that were received" during the period between their departure from the party and the rape. Following an evidentiary hearing, the court determined that the cell phone evidence was neither material nor exculpatory, because the jury could have interpreted it to mean that Victim had "no bias" against Newton prior to the rape, and because the "information found on the phone also corroborated the testimony that friends were trying to reach [Victim] for hours without success." The court concluded that the "evidence found on [Victim's] phone post-trial was unlikely to have affected the verdict" given that "the evidence against [Newton] was substantial" and that the forensic examination of the cell phone corroborated Victim's testimony. ¶16 The court therefore denied the Motion for New Trial. Newton appeals.

"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 (quotation simplified).

During the examination, Victim stated that one of the bruises on her right thigh existed before the assault.

Newton raised numerous other ineffective assistance of counsel claims in the Motion for New Trial, but as we discuss in greater detail below, see infra ¶¶ 19-20 & n.8, we are precluded from reaching those arguments and therefore do not articulate the factual circumstances relevant to them. We note, however, that any remedy Newton might have for his argument that he did not receive a fair trial because he was not represented by the specific attorney his father hired on his behalf does not lie with this court. Especially considering the district court's conclusions that the attorney who represented Newton at trial was not constitutionally ineffective on any claim Newton raised and the court did not find credible the testimony of Newton's father.

A surveillance video of the fast food restaurant showed that Newton and Victim entered the restaurant around 3:00 a.m., that Victim was seen using her cell phone, and that Victim and Newton left together at around 3:09 a.m.

ISSUES AND STANDARDS OF REVIEW

¶17 Newton contends the "jury was improperly instructed regarding the mens rea element of rape" and asks this court to review this issue for plain error, manifest injustice, and ineffective assistance of counsel. Newton raised this issue before the district court in the Motion for New Trial, based on the ineffective assistance of counsel. We therefore review Newton's argument only to the extent he challenges the district court's ruling. See Allen v. Friel, 2008 UT 56, ¶ 4, 194 P.3d 903 (affirming the district court's decision because the defendant "ignored one of the most fundamental principles of the appellate process when he did not identify any flaws in the district court's order that required reversal"); cf. Ellis v. State, 2014 UT App 50, ¶ 5, 321 P.3d 1174 (per curiam) ("Because an appellate court reviews the decision of a [district] court, an appellant must address the rationale of the [district] court's rulings and identify why the ruling should be overturned."). When the district court "has previously held an evidentiary hearing on a motion based on ineffective assistance of counsel, such a claim presents a mixed question of law and fact." State v. Burnside, 2016 UT App 224, ¶ 18, 387 P.3d 570 (quotation simplified). We therefore "review the district court's factual findings for clear error and its legal conclusions for correctness." Id. address (or even acknowledge) the [district] court's decision on the[se] issue[s]," see id. ¶ 42, he cannot meet his burden of persuasion on appeal and we therefore do not further address them, see Ellis, 2014 UT App 50, ¶ 5.

To the extent Newton argues that we should review this issue under the rubrics of plain error and manifest injustice, those arguments fail. "[I]n most circumstances manifest injustice is synonymous with plain error," and to succeed on a claim of plain error, Newton "must establish harmful error that should have been obvious to the [district] court." State v. Reigelsperger, 2017 UT App 101, ¶ 39, 400 P.3d 1127. Because we conclude that there was no error in the rape jury instruction, see infra ¶ 29, Newton cannot prevail under the rubric of plain error.

Newton also argues that the "cumulative errors require a new trial." "Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence that a fair trial was had." State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (quotation simplified). Because we conclude that no error occurred, see infra ¶¶ 29, 34, 37, the cumulative error doctrine does not apply.

A situation in which a defendant argues ineffective assistance of counsel in post-trial motions before the district court is similar to petitions for post-conviction relief based on ineffective assistance of counsel. These motions and petitions are filed with the district court and the district court generally rules on them with supportive findings of fact and conclusions of law. In appeals from the denial of a petition for post-conviction relief, the defendant must challenge the rationale for the district court's ruling to demonstrate error in that ruling. See Ellis v. State, 2014 UT App 50, ¶ 5, 321 P.3d 1174 (per curiam). We see no difference in a defendant's burden on appeal when the district court has adjudicated the same claim of ineffective assistance of counsel in a post-trial motion for a new trial. Compare Archuleta v. Galetka, 2011 UT 73, ¶ 25, 267 P.3d 232 (explaining that, in the context of post-conviction relief, "when confronted with ineffective assistance of counsel claims, we review a lower court's purely factual findings for clear error, but we review the application of the law to the facts for correctness" (quotation simplified)), with State v. Burnside, 2016 UT App 224, ¶ 18, 387 P.3d 570 ("In a situation . . . in which the [district] court has previously held an evidentiary hearing on a motion based on ineffective assistance of counsel . . . we review the district court's factual findings for clear error and its legal conclusions for correctness." (quotation simplified)). --------

ANALYSIS I. The Jury Instruction

¶21 Newton contends the district court erred in determining that trial counsel was not constitutionally ineffective for failing to object to the rape jury instruction and in denying the Motion for New Trial on that basis. He argues that the court erred in determining the rape instruction was correct because the instruction was one sentence that did not separate the mens rea from the acts required to commit rape. The instruction read: "'Rape' as defined in the law means the actor knowingly, intentionally, or recklessly has sexual intercourse with another without that person's consent." He asserts that the instruction did not provide that "knowingly, intentionally, or recklessly" applied to "the element of non-consent" and counsel should therefore have objected to it. We disagree. ¶22 To succeed on a claim of ineffective assistance of counsel, a defendant must demonstrate "(1) that counsel's performance was objectively deficient, and (2) a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial." State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162; see also Strickland v. Washington, 466 U.S. 668, 687 (1984). When the defendant fails to make a sufficient showing on one of the Strickland prongs, we need not address both of them. See State v. Veale, 2012 UT App 131, ¶ 5, 278 P.3d 153. Because Newton fails to demonstrate that trial counsel performed deficiently, we do not address the prejudice prong. ¶23 To demonstrate that trial counsel performed deficiently, Newton "must overcome the strong presumption that his trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsel's actions." Clark, 2004 UT 25, ¶ 6 (quotation simplified). "It is well settled that counsel's performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests." State v. Perez-Avila, 2006 UT App 71, ¶ 7, 131 P.3d 864. Newton therefore must demonstrate that counsel's objection to the rape instruction would not have been futile. ¶24 Here, the district court determined that the jury instruction defining the elements of rape was "not incorrect and therefore [did] not provide a basis for a claim of ineffective assistance of counsel." The court rejected Newton's argument that the jury instruction defining rape was similar to the erroneous instruction in State v. Barela, 2015 UT 22, 349 P.3d 676. We likewise conclude that the jury instruction in Barela is distinguishable from the instruction given at Newton's trial. ¶25 In Barela, the jury was instructed that to find Barela guilty of rape it would have to find:

1. The defendant, Robert K. Barela,
2. Intentionally or knowingly;
3. Had sexual intercourse with K.M.;
4. That said act of intercourse was without the consent of K.M.

refer to the jury instruction for rape given in State v. Marchet, 2009 UT App 262, 219 P.3d 75. In that case, the jury was instructed that it could convict the defendant of rape if it found:

1. . . . [the defendant] had sexual intercourse with [the victim]; and
2. That said act of intercourse was without the consent of [the victim]; and
3. That the defendant acted intentionally or knowingly or recklessly.

Id
. ¶ 21. The defendant challenged the instruction, arguing that it "[did] not adequately inform the jury that the State had the burden of proving his mental state with regard to each element of the crime of rape." Id. Specifically, he argued that the instruction "did not require the jury to find any mental state on [the defendant's] part with regard to [the victim's] consent or lack thereof." Id. (quotation simplified). This court disagreed, explaining that the Utah Code "defines the crime of rape as consisting of two elements: (1) the act of sexual intercourse (2) committed without the other person's consent." Id. ¶ 22. It further explained that, under the Utah Code, the defendant could not be convicted of rape unless he acted intentionally, knowingly, or recklessly. Id. The rape instruction therefore "accurately identified each element of the crime of rape and correctly stated the applicable mental state" because the jury was instructed that to convict the defendant of rape it "must find beyond a reasonable doubt that he intentionally, knowingly, or recklessly had nonconsensual sexual intercourse with [the victim]." Id. ¶28 The jury instruction in Newton's case is more similar to the instruction provided in Marchet than to the one provided in Barela. In addition, it is even less likely that the jury in Newton's case misinterpreted the elements necessary to find that he raped Victim than the jury in Marchet. Rather than providing the culpable mental state as a catch-all at the end of the instruction, see id. ¶ 21, Newton's instruction seamlessly provided that the applicable mens rea applied to both the act of sexual intercourse and Victim's non-consent. ¶29 We agree with the district court that there was no error in the jury instruction and therefore there was "no room for the jury to imply a difference between the act of intercourse and the non-consent of [Victim]." As a result, any objection on trial counsel's part would have been futile and Newton's claim of ineffective assistance of counsel with respect to the jury instruction fails.

II. The Brady Violation

¶30 Newton contends the district court erroneously denied the Motion for New Trial because (1) the State violated its "affirmative duty to seek out exculpatory evidence, and turn such evidence over to the defendant," and (2) the court erred in determining that the evidence collected from Victim's cell phone was not material and exculpatory. On his first point, he argues that Victim's cell phone was a critical piece of evidence that was alluded to throughout trial and that the State was "obligate[d]" to review the evidence that it may have contained. On his second point, he asserts that the evidence collected from Victim's cell phone was material and exculpatory because it "directly contradict[ed] [Victim's testimony] and undermine[d] her credibility." We address each argument in turn. ¶31 "[T]he suppression by the prosecution of evidence favorable to an accused upon request [by the defense] violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). Further, "regardless of request, favorable evidence is material, and constitutional error results from its suppression by the The court concluded this evidence was the information was not material and exculpatory and was "unlikely to have affected the verdict," because it could show only that Victim had "no bias" against Newton prior to the rape, and it corroborated Victim's account that her friends unsuccessfully attempted to contact her during the incident. ¶37 Newton challenges this conclusion. He relies on the assertion that the evidence that Victim entered his phone number into her cell phone just before the rape undermined her credibility because she testified that he was "weird and creepy." But Victim also testified on direct and cross-examination that after telling Newton that she thought he was "weird and creepy," "he was nice after that." In addition, Newton fails to explain how entering his phone number before the rape would have "provided circumstantial evidence of consent." We therefore conclude the district court did not err in denying the Motion for New Trial after determining that the evidence on Victim's cell phone was not material and exculpatory.

CONCLUSION

¶38 We conclude that because the jury instruction defining rape accurately articulated the elements of the crime, any objection to the instruction would have been futile and Newton therefore cannot show ineffective assistance of counsel. We further conclude the State did not commit a Brady violation, because it did not have knowledge that the cell phone may have contained exculpatory evidence. Finally, we conclude the district court did not err in determining that the forensic examination of the cell phone did not reveal material and exculpatory evidence. Accordingly, we affirm.