State v. Newton

Citation466 P.3d 135
Decision Date14 May 2020
Docket NumberNo. 20180915,20180915
CourtUtah Supreme Court
Parties STATE of Utah, Respondent, v. Brian NEWTON, Petitioner.

466 P.3d 135

STATE of Utah, Respondent,
Brian NEWTON, Petitioner.

No. 20180915

Supreme Court of Utah.

Heard December 9, 2019
Filed May 14, 2020


¶1 Brian Newton had sexual intercourse with M.F., a woman he met at a party some hours earlier. He said that M.F. consented to—and even initiated—the intercourse. M.F., in contrast, said that Newton raped her. In the aftermath, Newton was convicted of aggravated sexual assault and aggravated assault. He then obtained new counsel, moved for a new trial, and claimed (1) that his trial counsel was ineffective for not having objected to the jury instruction for rape and (2) that the State had violated the disclosure requirements of Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by refusing to conduct a forensic exam of M.F.'s cell phone. The district court denied the motion and the court of appeals affirmed. Because Newton was not prejudiced by any alleged error in the jury instruction, 1

466 P.3d 138

because the State had no duty under Brady to conduct a forensic examination on the cell phone before trial, and because the evidence ultimately retrieved from a posttrial forensic examination of the cell phone was not material, we affirm.


¶2 M.F. accused Newton of raping her in his car. He was charged with two counts of aggravated sexual assault, one count of aggravated kidnapping, and one count of aggravated assault. At trial, M.F. and Newton each testified, giving their conflicting accounts of what happened.

M.F.'s and Newton's Conflicting Accounts

¶3 M.F. testified at trial that Newton was at a party that she attended on May 29, 2012. M.F. said that she drank alcohol at the party and that she "told [Newton] that [she] hated him" because "he was weird and creepy." She explained at trial that she had felt that way because of "the vib[e]s he gave off but then he was nice after that." Eventually, the two left the party together at around 3:00 a.m. to get a bite to eat. Newton drove her to a Subway, where he bought a sandwich, and then to a parking lot, where the attack occurred.

¶4 M.F. described how it unfolded. Newton got out of the car, walked to the passenger side, and got on top of her, leaning her chair back. Newton then unzipped her dress and "forcibly" removed her underwear and bra. Meanwhile, M.F. was "fighting back," "screaming and crying and pushing him." Newton then put his hand around M.F.'s throat, choking her to the point that she felt as though she would lose consciousness. At that point, Newton raped M.F. vaginally. When he tried to rape her anally, she "freaked out even more," and he reacted by grabbing a gun from the floor of the driver's side of the car and pointing it at her head, saying that if she was quiet and let him finish, he would take her back to the party. He then flipped her back over and again raped her vaginally.

¶5 M.F. also described how she fled from the car after Newton drove away from the parking lot and slowed down for a red light. In doing so, she said, she left her cell phone in his car. M.F. began walking home. She ended up, however, at a Chevron from which a stranger gave her a ride to her friend's house. Some of her friends were there—having been concerned about what had happened to her and having had called the police. M.F. told them about the attack. A police officer told M.F. that she should go to the hospital, and she did. There, a sexual assault nurse examiner performed a rape exam on M.F.2

¶6 Newton told a story at trial very different than that of M.F. He testified that his encounter with M.F. was entirely consensual. He even said that M.F. initiated the encounter as they left the Subway by stroking his penis and then—after Newton parked—climbing on top of him to have intercourse. He also testified that M.F. performed oral sex on him. Afterwards, he said, he dropped her off at a place he thought to be her home. He said that the only time M.F. would have seen a gun was when he got into his vehicle and checked to make sure it was not stolen, as he always did.

M.F.'s Injuries

¶7 At trial, the sexual assault nurse examiner—who had performed a rape exam on M.F.—also testified. The nurse observed that M.F.'s dress was on inside out and photographed several injuries. Among the injuries were multiple genital injuries. Specifically, M.F. had abrasions, bruising, and a "little chunk of skin missing."3 The nurse testified

466 P.3d 139

that anybody who sustained this last genital injury during consensual sex would stop the intercourse since it would "be very painful." The genital injuries, the nurse agreed, could be "consistent with non-consensual intercourse."

¶8 Besides the genital injuries, M.F.'s trachea was tender and slightly red. She also had a petechia ("redness of the skin that is caused by pressure," either sucking or pushing) on the neck, which the nurse testified is "the type of injury that is consistent with strangulation." M.F. had other symptoms that indicated strangulation too, including neck pain, difficulty swallowing, voice changes, and memory loss.

¶9 M.F. also had several bruises on her arms and legs, two scratches (one on the leg and one on the ankle), a blister on the right heel,4 areas of redness and a petechia on her breasts, and redness on both shoulders and a scratch on one of them.

The Rape Jury Instruction and the Verdict

¶10 At the conclusion of the trial, the district court gave the following jury instruction: " ‘Rape’ as defined in the law means the actor knowingly, intentionally, or recklessly has sexual intercourse with another without that person's consent."5 Newton's counsel did not object to that instruction.

The Verdict, Posttrial Motions, and Appeal

¶11 The jury convicted Newton of one count of aggravated sexual assault and aggravated assault and acquitted on the other charges. After trial but before sentencing, Newton obtained new counsel and moved for a new trial. Among the arguments raised in the motion was the claim that his trial counsel had provided ineffective assistance by failing to object to the rape jury instruction.

¶12 Besides arguing for ineffective assistance of counsel, Newton also contended that the State's failure to conduct a forensic examination of M.F.'s cell phone violated the disclosure requirements of Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). M.F.'s cell phone had been found about a year and a half after the assault and had been given to the police. The State never did a forensic examination of the cell phone, but had previously provided Newton with a copy of the call and text logs of M.F.'s cell phone.6 In response to Newton's posttrial motion, the district court ordered a forensic examination of the cell phone, the findings of which were to be sent to the court for in camera review. The examination revealed that Newton's name and cell-phone number had been entered in M.F.'s cell phone at 3:09 a.m. on the date of the assault (while or near the time Newton and M.F. were at the Subway). It also showed multiple text messages and phone calls that had been received in the early morning hours that day, which "were consistent with the testimonies of friends and family trying to reach [M.F.] without response." The last sent text was at 2:10 a.m.; it "did not contain any reference to where [M.F.] was or what she was doing."

¶13 After the in camera review of the cell-phone evidence, the district court denied Newton's motion for a new trial. It concluded that Newton's ineffective-assistance-of-counsel claim failed because the jury instruction correctly required mens rea as to both the act of sexual intercourse and M.F.'s nonconsent. The district court likewise rejected Newton's Brady claim, determining that "[t]he evidence found on [M.F.]'s phone post-trial was unlikely to have affected the verdict."

466 P.3d 140

That was because, upon learning of the contact entry that took place at the Subway, the jury could have concluded that M.F. "had no bias" against Newton before the rape and because "[t]he [other] information found on the phone also corroborated [her] testimony that friends were trying to reach [M.F.] for hours without success."

¶14 Newton appealed. He raised several issues, including his arguments about the rape jury instruction and the alleged Brady violation. The court of appeals affirmed. State v. Newton , 2018 UT App 194, ¶ 38, 437 P.3d 429.

¶15 Newton filed a petition for certiorari, which we granted. We have jurisdiction under Utah Code section 78A-3-102(3)(a).


¶16 "On certiorari, we review the court of appeals' decision for correctness." State v. Martinez-Castellanos , 2018 UT 46, ¶ 32, 428 P.3d 1038 (citation omitted) (internal quotation marks omitted). The issues of ineffective assistance of counsel and due process are both mixed questions of law and fact. State v. Mohamud , 2017 UT 23, ¶ 10, 395 P.3d 133 ; Jacobs v. State , 2001 UT 17, ¶ 20, 20 P.3d 382. We review the legal questions involved for correctness and the factual findings for...

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    ...and (2) "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. 2052 ; see also State v. Newton , 2020 UT 24, ¶ 20, 466 P.3d 135.¶52 Drommond contends that his trial counsel was ineffective in two ways: first, by not investigating and presenting evidence on how Effexor inf......
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    ...the trial would have been different.¶51 While the jury instruction here could have been clearer, see State v. Newton , 2020 UT 24, ¶ 29, 466 P.3d 135 (identifying Model Utah Jury Instruction CR1605 as an example of a clear jury instruction for the offense of rape), we conclude that Norton d......
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    ...did not consent and that Defendant was at least reckless in determining whether Victim consented. See State v. Newton , 2020 UT 24, ¶ 34, 466 P.3d 135 ("In convicting [the defendant], the jury must have found that [the victim] did not consent and, by extension, must have concluded that [the......
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