State v. Newton

2018 UT App 194
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BRIAN NEWTON ,
Appellant.
Opinion
No. 20170205-CA
Filed October 12, 2018
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 K ATE A. TOOMEY authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and JILL M. POHLMAN
concurred.
TOOMEY, Judge:
A 	jury 	convicted 	Brian 	Newton 	of 	one 	count 	of	¶1
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 	Brady1 violation 	related 	to 	Victim’s 	cell 	phone, 	and 	four
1. 	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
(continued…)

State v. Newton
20170205-CA 	2 	2018 UT App 194
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.
BACKGROUND
Victim attended a party at a friend’s house where she met	¶2
Newton and his girlfriend.2 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.”
The party continued through the early morning hours of	¶3
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.
(…continued)
guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.”).
2. “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).

State v. Newton
20170205-CA 	3 	2018 UT App 194
Newton and Victim listened to music for a while, and	¶4
then he exited the vehicle, opened Victim’s door, leaned her seat
back, and got on top of her. Victim testified that she did not say
anything at first but thought to herself, “What’s going on.”
Newton 	“[f]orcibly” 	removed 	all 	of 	Victim’s 	clothing 	and
undergarments 	while 	she 	was 	“screaming 	and 	crying 	and
pushing him.” Newton put his hand around her neck and
choked her to the point that she felt she was “going to lose
consciousness” and then raped her. He first penetrated his penis
into her vagina and then attempted to penetrate his penis into
her anus but was unsuccessful because she “freaked out even
more.” Newton then grabbed a gun, held it to her head, and
continued to rape her vaginally while she “cr[ied] quietly.”
At one point, Victim said she needed to throw up. After	¶5
Newton rolled down the window, she attempted to make loud
retching noises to get the attention of anyone who might be
nearby. She did not try to scream or call for help while the
window was rolled down, because she feared that Newton
would shoot her. Victim’s efforts to summon assistance were
unsuccessful. After ejaculating, Newton returned to the driver’s
side of the vehicle and Victim dressed. Newton drove away from
the truck stop and told Victim that “he had to make a phone call
to a friend to see if he had to kill [her] or not.” When he slowed
down at a red light, Victim jumped out and ran barefoot to the
nearest neighborhood she could find, leaving her cell phone in
the vehicle.
Victim eventually arrived at a gas station where a man	¶6
offered to help by giving her a ride. Although Victim did not
know the man, Victim felt “scatterbrained” and “needed help,”
so she accepted his offer, and he drove her to her friend’s house.
When Victim arrived at the friend’s house the police were
already there. Victim explained to an officer that Newton raped
her and threatened her with a gun. The officer told her to go to
the hospital for a sexual assault examination.

State v. Newton
20170205-CA 	4 	2018 UT App 194
During 	the 	examination, 	the 	sexual 	assault 	nurse	¶7
examiner (Nurse) swabbed Victim’s vagina, mouth, and belly
button to collect DNA, which matched Newton’s DNA. Nurse
also 	took 	photographs 	of 	Victim’s 	body. 	One 	photograph
revealed a petechia—redness of the skin caused by pressure,
either sucking or pushing—on Victim’s trachea, which is an
injury “consistent with strangulation.” The other photographs
included: three injuries on Victim’s breasts and one on the front
of a shoulder, marked by redness and a petechia; a bruise on the
inside of an elbow and one on a forearm; numerous bruises and
a petechia on her thighs; bruises on her knees and an ankle; and
a blister on her heel “from walking barefoot after the assault.”3
Nurse also examined Victim’s genital injuries and noted bruises
and an open abrasion in and around her labia. At trial, Nurse
testified that there was also a “little chunk of skin” missing in a
location where “[a]nybody who had [sustained] an injury like
that consensually would be [the result of] an accident and . . .
[i]ntercourse would be stopped by the woman because it would
be very painful.” Nurse also testified that the injuries could be
“consistent 	with 	non-consensual 	intercourse,” 	but 	she 	also
conceded that “regardless of how careful you are, there can be
some sort of injuries sometimes during consensual intercourse.”
Newton testified in his defense at trial. He said that, at the	¶8
party, Victim “asked [him] if [he] wanted to go get something to
eat.” He agreed and escorted her to his car where he “checked
for [his] concealed carry [gun] because [he] wouldn’t want it to
be missing and be used in a possible crime.” Newton kept his
gun in a safe under his seat that requires a “four to six entry
combination” to open. He then drove Victim to a fast food
restaurant. After picking up his order, they returned to his car
and he started to drive away. He testified that when he “reached
3. During the examination, Victim stated that one of the bruises
on her right thigh existed before the assault.

State v. Newton
20170205-CA 	5 	2018 UT App 194
back to put [his] hand on [her] headrest,” she put her hand on
his leg and “proceeded to move her hand up . . . [and] started to
undo [his] pants.” Newton decided to pull over into a parking
lot. Victim began to stroke his penis and then they started to kiss.
According to Newton, Victim “climbed over on top of [him] in
the driver’s seat” and they removed their clothes.
According 	to 	Newton, 	while 	engaging 	in 	sexual	¶9
intercourse, Victim bumped the horn on the steering wheel, and
they 	both 	agreed 	to 	move 	to 	the 	passenger 	seat. 	Newton
described different sexual positions they used, including being
on top of and behind Victim. At one point, Victim said she
needed to throw up. Newton rolled down the window and
heard some retching noises after which Victim said she felt fine.
He testified they both put their clothes back on after having sex
and he drove Victim to her house. Newton testified that Victim
“passed out” during the drive. When he got to her house, he left
Victim sitting on a wooden bench on the porch. He also testified
that he never removed the gun from the safe and the only time
Victim could have seen it was when he “opened the safe to
check” that it was still there.
The jury convicted Newton of one count of first-degree	¶10
aggravated 	sexual 	assault 	and 	one 	count 	of 	third-degree
aggravated assault. He was acquitted of a second count of
first-degree 	aggravated 	sexual 	assault 	and 	one 	count 	of
first-degree aggravated kidnapping.
Following the convictions, Newton hired new counsel	¶11
who filed the Motion for New Trial. Newton argued that his
original trial counsel rendered ineffective assistance by failing to
object to the jury instruction defining rape.4 He also argued that
4. 	Newton 	raised 	numerous 	other 	ineffective 	assistance 	of
counsel claims in the Motion for New Trial, but as we discuss in
(continued…)

State v. Newton
20170205-CA 	6 	2018 UT App 194
the State committed a Brady violation when it did not conduct a
forensic examination of Victim’s cell phone.
The court first addressed the jury instruction claim. The	¶12
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.
(…continued)
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.

State v. Newton
20170205-CA 	7 	2018 UT App 194
The next 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.”
Newton argued that State v. Barela, 2015 UT 22, 349 P.3d	¶13
676, “compel[led the] court to find [his] trial counsel ineffective
for failing to object to the jury instruction given on the elements
of the crime of Rape because [it] did not clearly establish the
requirement of mens rea as to [Victim’s] non consent.” But the
court disagreed, distinguishing the rape instruction in Barela
from the instruction given at Newton’s trial. It explained that,
because the instruction was one sentence long and the terms
“knowingly, 	intentionally 	or 	recklessly 	. 	. 	. 	immediately
precede[d] 	words 	describing 	the 	prohibited 	conduct, 	sexual
intercourse with another person without that person’s consent,”
“[t]here [was] no room for the jury to imply a difference between
the 	act 	of 	intercourse 	and 	the 	non-consent 	of 	[Victim].”
Accordingly, the court concluded that trial counsel was not
constitutionally ineffective for failing to object to the instruction
and that the district court did not commit plain error when it
gave the rape instruction to the jury.
The 	court 	also 	considered 	Newton’s 	Brady 	claim. 	In	¶14
support 	of 	his argument 	that 	the 	State committed 	a 	Brady
violation, Newton directed the court to his pretrial motion for
access to Victim’s cell phone “for the purpose of a forensic
examination,” 	asserting 	that 	the 	cell 	phone 	“may 	have
exculpatory evidence contained within it” and may undermine
the jury’s verdict. The State opposed the motion, arguing that
“the State is not aware of evidence contained on the phone that
‘tends to negate the guilt of the accused, mitigate the guilt of the
defendant, or mitigate the degree of the offense for reduced
punishment.’” (Quoting Utah R. Crim. P. 16(a)(4).) The State
further 	noted 	that 	Newton 	did 	not 	show 	“good 	cause” 	to
authorize the search of Victim’s cell phone because the motion
was based on Newton’s “naked belief that the phone ‘may have

State v. Newton
20170205-CA 	8 	2018 UT App 194
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.”
The 	forensic 	analysis 	revealed 	that 	Victim	¶15
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.5 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.
The court therefore denied the Motion for New Trial.	¶16
Newton appeals.
5. 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.

State v. Newton
20170205-CA 	9 	2018 UT App 194
ISSUES AND STANDARDS OF REVIEW
Newton contends the “jury was improperly instructed	¶17
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. 6 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.
6. 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.

State v. Newton
20170205-CA 	10 	2018 UT App 194
Newton also contends the State “failed to pursue and	¶18
disclose material evidence from [Victim’s] cell phone,” which he
argues amounted to a Brady violation. Because this issue was
raised before the district court, we review the district court’s
“factual findings for clear error and its legal conclusions for
correctness.” Id. Relatedly, Newton contends the district court
erroneously determined the evidence located on Victim’s cell
phone was not material and exculpatory and therefore erred in
denying the Motion for New Trial on that basis.7 When the
district court denies a motion to arrest judgment and for a new
trial, we review that decision for an abuse of discretion, but “we
review the legal standards applied by the [district] court in
denying such a motion for correctness.” State v. Montoya, 2017
UT App 110, ¶ 11, 400 P.3d 1193 (quotation simplified).
Finally, Newton contends his trial counsel was ineffective	¶19
for failing to (1) “object to inadmissible prejudicial testimony,”
(2) “investigate,” and (3) “adequately prepare for trial.” Newton
raised these claims of ineffective assistance of counsel before the
district court. The court held evidentiary hearings on these
allegations 	and 	issued 	an 	order 	denying 	Newton’s 	motion,
supported with findings of fact and conclusions of law.
On appeal, Newton makes the same three arguments,	¶20
without challenging the court’s findings of fact or conclusions of
law. “When a claim of ineffective assistance of counsel is raised
for the first time on appeal, there is no lower court ruling to
7. 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.

State v. Newton
20170205-CA 	11 	2018 UT App 194
review 	and 	we 	must 	decide 	whether 	the 	defendant 	was
deprived of the effective assistance of counsel as a matter of
law.” 	State 	v. 	Craft, 	2017 	UT 	App 	87, 	¶ 	15, 	397 	P.3d 	889
(quotation simplified). But Newton does not raise these issues
for 	the 	first 	time 	on 	appeal. 	Instead, 	he 	asserts 	the 	same
arguments that the district court ruled on. The issues before us
are therefore mixed questions of law and fact, and “we review
the district court’s factual findings for clear error and its legal
conclusions for correctness.” Burnside, 2016 UT App 224, ¶ 18
(quotation 	simplified). 	To 	succeed 	on 	appeal, 	Newton
necessarily must challenge the district court’s factual findings
and conclusions of law, and he cannot make the same arguments
anew while ignoring the proceedings below that adjudicated the
same issues.8 See id. ¶¶ 42–43. Because Newton “has failed to
8. 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
(continued…)

State v. Newton
20170205-CA 	12 	2018 UT App 194
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.
ANALYSIS
I. The Jury Instruction
Newton contends the district court erred in determining	¶21
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.
To succeed on a claim of ineffective assistance of counsel,	¶22
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.
(…continued)
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)).

State v. Newton
20170205-CA 	13 	2018 UT App 194
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.
To demonstrate that trial counsel performed deficiently,	¶23
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.
Here, 	the 	district 	court 	determined 	that 	the 	jury	¶24
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.
In Barela, the jury was instructed that to find Barela guilty	¶25
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.

State v. Newton
20170205-CA 	14 	2018 UT App 194
Id. ¶ 13. The Barela court held that the “instruction was in error”
because it “implied that the mens rea requirement . . . applied
only to the act of sexual intercourse, and not to [the victim’s]
nonconsent . . . by coupling the mens rea requirement directly
with the element of sexual intercourse, and by articulating the
element 	of 	[the 	victim’s] 	nonconsent 	without 	any 	apparent
counterpart requirement of mens rea.” Id. ¶ 26. Further, the
erroneous instruction “was reasonably likely to have affected the
verdict” because “even in [the victim’s] 	account, she never
explicitly (in words) or openly (in physical resistance) rebuffed
Barela’s advances.” Id. ¶¶ 28–29. The victim’s account of the
alleged rape was also inconsistent over time. See id. ¶ 11.
Here, the jury instruction provided: “‘Rape’ as defined in	¶26
the law means the actor knowingly, intentionally, or recklessly
has 	sexual 	intercourse 	with 	another 	without 	that 	person’s
consent.” Unlike in Barela, the instruction did not separate the
mens rea from the act or the element of non-consent. In addition,
the Utah Code provides that “[a] person commits rape when the
actor has sexual intercourse with another person without the
victim’s consent.” Utah Code Ann. § 76-5-402(1) (LexisNexis
2017). Our legislature has provided that “when the definition of
[a criminal] 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.” Id.
§ 76-2-102. The application of the required culpable mental state
of “intent, knowledge, or recklessness” to section 76-5-402’s
definition of rape results in the rape instruction provided to the
jury. We are therefore unpersuaded by Newton’s argument that,
because “the jury was not law-trained,” “it [was] unrealistic for
counsel, or the court, to assume that the jury would know based
on the one sentence instruction, that mens rea was also required
for the element of non-consent.”
To further support our conclusion that the jury instruction	¶27
properly informed the jury of the necessary elements of rape, we

State v. Newton
20170205-CA 	15 	2018 UT App 194
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.
The jury instruction in Newton’s case is more similar to	¶28
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

State v. Newton
20170205-CA 	16 	2018 UT App 194
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.
We agree with the district court that there was no error in	¶29
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
Newton contends the district court erroneously denied	¶30
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.
“[T]he 	suppression 	by 	the 	prosecution 	of 	evidence	¶31
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

State v. Newton
20170205-CA 	17 	2018 UT App 194
government, if there is a reasonable probability that, had the
evidence 	been 	disclosed 	to 	the 	defense, 	the 	result 	of 	the
proceeding would have been different.” Kyles v. Whitley, 514 U.S.
419, 433 (1995) (quotation simplified).
First, 	Newton 	argues 	the 	State 	committed 	a 	Brady	¶32
violation when it failed to conduct a forensic examination of
Victim’s cell phone once it had been turned over to the police.
He cites Kyles in support of this argument. But his reliance on
Kyles is misplaced. There, the United States Supreme Court
explained that the prosecution has “a degree of discretion” when
determining “materiality in terms of the cumulative effect of
suppression” of evidence. Id. at 437. But this discretion has “a
corresponding burden.” Id. Because the prosecution “alone can
know what is undisclosed, [it] must be assigned the consequent
responsibility to gauge the likely net effect of all such evidence
and make disclosure when the point of ‘reasonable probability’
is 	reached.” 	Id. 	“This 	in 	turn 	means 	that 	the 	individual
prosecutor has a duty to learn of any favorable evidence known
to the others acting on the government’s behalf in the case,
including the police.” Id. (emphasis added).
The evidence on Victim’s cell phone was unknown to the	¶33
prosecution or any other person “acting on the government’s
behalf in [this] case.” See id. Before trial, the State opposed
Newton’s 	motion 	to 	discover 	Victim’s 	cell 	phone 	“for 	the
purpose of a forensic examination,” arguing that “the State [was]
not aware of evidence contained on the phone that ‘tends to
negate 	the 	guilt 	of 	the 	accused, 	mitigate 	the 	guilt 	of 	the
defendant, or mitigate the degree of the offense for reduced
punishment.’” (Quoting Utah R. Crim. P. 16(a)(4).) The State
further argued that Newton did not show “good cause” to
authorize the search of Victim’s cell phone because the motion
was based on Newton’s “naked belief that the phone may have
exculpatory evidence contained within it.” See Utah R. Crim. P.
16(a)(5). And at a post-trial evidentiary hearing, the prosecutor

State v. Newton
20170205-CA 	18 	2018 UT App 194
testified that he “had no idea of anything that was on the
phone,” either inculpatory or exculpatory, and that he never
directed anyone to “look into what was on the phone.”
The prosecutor therefore did not have knowledge of the	¶34
forensic evidence of the cell phone, and the record does not
reflect that Newton elicited evidence that the prosecutor or any
other individual working for the State should have known there
was exculpatory evidence on the cell phone. See Kyles, 514 U.S. at
437 (explaining that prosecutors have “a duty to learn of any
favorable 	evidence 	known 	to 	the 	others 	acting 	on 	the
government’s behalf in the case, including the police” (emphasis
added)). 	And 	none 	of 	the 	cases 	Newton 	cites 	require 	the
prosecution to “seek out” exculpatory information unknown to
it or any others acting on its behalf. We therefore reject Newton’s
argument that, “once the police were in possession of [Victim’s]
cell phone, . . . the State had a constitutional obligation to seek
out any evidence that was on the phone, regardless of whether it
thought that the phone would contain anything of value.” We
conclude that the State did not commit a Brady violation when it
did 	not 	independently 	conduct 	a 	forensic 	examination 	of
Victim’s cell phone.
Second, Newton argues that the district court erred when	¶35
it determined that the evidence collected from Victim’s cell
phone was not material and exculpatory.
The 	district 	court 	determined 	that 	the 	evidence 	on	¶36
Victim’s cell phone was relevant to Newton’s claim of ineffective
assistance of counsel. It therefore granted Newton’s post-trial
motion to discover Victim’s cell phone and ordered a forensic
examination 	to 	determine 	whether 	it 	contained 	exculpatory
evidence. 	The 	examination 	revealed 	that 	Victim 	entered
Newton’s name and cell phone number into her phone after
leaving the party, but prior to the rape, and that her phone
received a series of unanswered phone calls and text messages.

State v. Newton
20170205-CA 	19 	2018 UT App 194
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.
Newton 	challenges 	this 	conclusion. 	He 	relies 	on 	the	¶37
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
We conclude that because the jury instruction defining	¶38
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.