State v. Blackwing, 050720 UTCA, 20170851-CA

Docket Nº:20170851-CA
Opinion Judge:APPLEBY, JUDGE
Party Name:State of Utah, Appellee, v. Kain Blackwing, Appellant.
Attorney:Andrew G. Deiss, John Robinson Jr., and Corey D. Riley, Attorneys for Appellant Sean D. Reyes, and Kris C. Leonard, Attorneys for Appellee
Judge Panel:Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.
Case Date:May 07, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 72

State of Utah, Appellee,

v.

Kain Blackwing, Appellant.

No. 20170851-CA

Court of Appeals of Utah

May 7, 2020

Third District Court, West Jordan Department The Honorable Bruce C. Lubeck No. 151401859

Andrew G. Deiss, John Robinson Jr., and Corey D. Riley, Attorneys for Appellant

Sean D. Reyes, and Kris C. Leonard, Attorneys for Appellee

Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.

OPINION

APPLEBY, JUDGE

¶1 Kain Blackwing was convicted of, among other things, seven counts of rape. He appeals, contending there was insufficient evidence to sustain his convictions on three of the counts. He also claims the district court erred when it did not grant a new trial after the jury was given allegedly prejudicial evidence in its deliberations. Because we conclude the State did not establish one of the rape offenses occurred in Utah, we reverse and vacate that conviction but affirm Blackwing's remaining convictions.

BACKGROUND1

¶2 Seventeen-year-old T.S. began martial arts and survival training in early October 2013 under the tutelage of Blackwing, a man in his forties. Most of the training took place at Blackwing's house. The training began in a small group, but gradually it became one-on-one and increased in frequency. As T.S. began spending more time with Blackwing, he taught her about "Shen living," telling her that he was "a Shen lord" and that "Shen can have multiple women." In fact, Blackwing had two putative wives, who called him "My Lord." After a few months of training, Blackwing told T.S. he knew she had feelings for him, and he reciprocated those feelings. They kissed.

¶3 Approximately one week after the kiss, in March 2014, T.S. moved into the house that Blackwing shared with his two putative wives. T.S. was given an office room as a bedroom, but on her first night living in the house, she stayed in Blackwing's bedroom and they had sexual intercourse for the first time. They had intercourse in March at least three more times.

¶4 One day in April 2014, while T.S. was at school, Blackwing called to tell her that the police raided his house and to warn her that an officer was going to the school to talk to her. Blackwing warned T.S. not to "betray" him and "reminded [her] that there was nothing going on," that they "weren't doing anything wrong," and that she "had to watch what [she] said." The officer came to the school and T.S. agreed to follow him to the Division of Child and Family Services (DCFS) for an interview. At DCFS, a detective asked T.S. if she and Blackwing "were engaging in any sexual activity," to which she responded, "No." Later that month, Blackwing took T.S. to Texas "to spend more time with [her] as his new wife."

¶5 Several months later, as part of an unrelated case, T.S. revealed her relationship with Blackwing to law enforcement. As a result, Blackwing was charged with, among other things, four counts of rape (counts 1, 2, 3, and 4) alleged to have occurred from March 9, 2014 through March 31, 2014 and three counts of rape (counts 5, 6, and 7) alleged to have occurred from April 1, 2014 through May 13, 2014. The State's theory was that T.S., because of her age and Blackwing's position of special trust or his enticement of her, was incapable of consenting to sexual intercourse.[2]

¶6 The case proceeded to a jury trial, and T.S. testified about the sexual intercourse she and Blackwing had during the month of...

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