State v. Newton

• Decision Date: 12 October 2018
• Docket Number: No. 20170205-CA,20170205-CA
• Citation: 437 P.3d 429
• Parties: STATE of Utah, Appellee, v. Brian NEWTON, Appellant.
• Court: Utah Court of Appeals

437 P.3d 429

STATE of Utah, Appellee,

v.Brian NEWTON, Appellant.

No. 20170205-CA

Court of Appeals of Utah.

Filed October 12, 2018

Ronald J. Yengich, Salt Lake City, Attorney for Appellant.

Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee.

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

Opinion

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 Brady¹ 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.

BACKGROUND

¶2 Victim attended a party at a friend's house where she met 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."

¶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.

¶4 Newton and Victim listened to music for a while, and 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."

¶5 At one point, Victim said she needed to throw up. After 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.

¶6 Victim eventually arrived at a gas station where a man 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.

¶7 During the examination, the sexual assault nurse 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."

¶8 Newton testified in his defense at trial. He said that, at the 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 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.

¶9 According to Newton, while engaging in sexual 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.

¶10 The jury convicted Newton of one count of first-degree 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.

¶11 Following the convictions, Newton hired new counsel 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 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.

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."

¶13 Newton argued that State v. Barela , 2015 UT 22, 349 P.3d 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.

¶14 The court also considered Newton's Brady claim. In 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...