State v. Norton

Decision Date13 July 2020
Docket NumberNo. 20180514,20180514
CourtUtah Supreme Court
Parties STATE of Utah, Respondent, v. Lonnie NORTON, Petitioner.
AMENDED OPINION*

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 A jury convicted Lonnie Norton of breaking into the home where his estranged wife was staying, kidnapping her, assaulting her, and then raping her—all while she had a protective order against him. He appealed his convictions and the court of appeals affirmed. He petitions this court for a review of each claim he raised before the court of appeals. We affirm on all but one issue.

BACKGROUND1

¶2 Norton and H.N. had been married for twenty-one years when H.N. moved out of the marital home with their four children. She stayed in a domestic violence shelter, then moved into her parents’ home. She obtained a protective order against Norton, which prohibited him from contacting her except to discuss marriage counseling and their children. The protective order permitted Norton to visit his three younger children, but only if a supervisor was present.

¶3 One evening, H.N.’s three youngest children went to the marital home for a weekend visitation with Norton. The events of that night led to Norton's arrest.

¶4 At the trial on the resulting charges, both H.N. and Norton testified. They gave vastly different accounts of what happened that night.

The Two Conflicting Accounts
H.N.’s Account

¶5 At trial, H.N. testified that before going to bed that night, she put chairs under the doorknobs of the front and back doors of her parents’ home, as she did each night. She had previously placed a dryer in front of the basement door, which remained there. After H.N. went to bed, she was awakened by a "loud bang." She grabbed the phone and dialed 911 before noticing Norton standing at the end of her bed. He grabbed the phone and punched her in the face. Norton also wound duct tape around H.N.’s head, covering her mouth.

¶6 The next thing H.N. remembered was sitting in Norton's car at an intersection. Although it was snowing, she did not have any shoes on. H.N. noticed that Norton had a gun in his lap, which he picked up and pointed at her. H.N. thought Norton was driving to his office at the University of Utah, but instead he drove to a building in Fort Douglas. When they arrived, Norton was still holding the gun and told H.N. that she "needed to be quiet or he would shoot [her]."

¶7 H.N. and Norton went into the building, up some stairs, and into a bathroom. Norton ripped the duct tape off H.N.’s head and talked to her about reconciling their marriage. After he finished talking, Norton told H.N. to take off her shirt. When H.N. said "no," Norton pointed the gun at her and again told her to take off her shirt. She finally acquiesced, and Norton squeezed her breasts.

¶8 Next, Norton led H.N. into an office and told her to take off her pants. She again said "no," and he again pointed the gun at her, forcing her to comply. While she did so, Norton undressed, removed the magazine from the gun, and put the magazine and gun in a filing cabinet. Then, he told H.N. that they were going to have sex. She said "no," but Norton responded that "yes" they were. "So you're going to rape me?" she asked. Norton replied, "You can't rape somebody that you're married to."

¶9 He then lay on the ground and pulled H.N. on top of him. He grabbed H.N.’s hands, flipped her so that she was underneath him, and raped her. While Norton was on top of her, H.N. grabbed his penis as hard as she could, but was unsure how hard that was because she has rheumatoid arthritis

. In response, Norton again grabbed her hands and held them over her head.

¶10 After raping H.N., Norton took her into the bathroom. He told her to rinse off, but she struggled because her hands were shaking. Norton complained that she "wasn't doing a good enough job," and inserted his fingers into H.N.’s vagina to try to "rinse himself out" of her. Afterwards, H.N. dried herself off with paper towels and dressed. She then noticed that Norton was dressed with the gun in his hand.

¶11 Back in the office, Norton set up two chairs so that they were facing each other and told H.N. to sit. She sat, and Norton put the gun to his head and threatened to kill himself. H.N. tried to dissuade him, but Norton pointed the gun at H.N. and threatened to shoot her, too. Eventually H.N. got mad and told Norton to "go ahead and shoot himself," at which point he got up and took her back to the car.

¶12 Norton drove to the marital home. There, H.N. checked on the children and then convinced Norton to take her back to her parents’ home. When they arrived, Norton entered the house, leaving only after H.N. told him she would not tell anyone what had happened.

¶13 After Norton left, H.N. called one of Norton's neighbors and asked the neighbor to get her children out of the marital home. H.N. also called 911, told a police officer what happened, and asked the officer to check on her children. The police arrived at H.N.’s parents’ home, spoke with her, and then drove her to the hospital.

Norton's Account

¶14 Norton testified at trial and gave a very different version of these events. He claimed that H.N. told him to visit her over the weekend so they could discuss their marriage. After their children were asleep, Norton drove to H.N.’s parents’ house to see her. While driving over, he received a phone call from H.N., which he missed. He arrived at H.N.’s parents’ home and waited outside until she exited the house and got in the car. Norton said he could not remember whether H.N. was wearing shoes, but that "she might have come running out in stocking feet" and he thought he "gave her a pair of Reeboks to wear."

¶15 H.N. suggested they go to Norton's office to talk. While driving, Norton decided it would be better to go to a building in the Fort Douglas area.

¶16 After arriving at the building, Norton unlocked the door and proceeded upstairs with H.N. where they sat down and talked about reconciliation. H.N. said she needed time, and Norton started talking about when they first met and when they were first married. H.N. then came over, sat on Norton's lap, put her arms around him, and the two started kissing. They moved to the floor where they continued to kiss and touch each other. They took off their clothes, continued to kiss, and then H.N. "climbed on top" of Norton and they began "to have sex." Afterwards, they went into the bathroom where H.N. "rinsed" and "dried herself off."

¶17 After dressing, Norton and H.N. sat down and continued to discuss reconciliation. H.N. told Norton she did not want to live with him anymore. He replied that if they were not going to reconcile he thought it "would be fair" if they had joint custody of their children. The two argued, and H.N. slapped Norton and then he backhanded her. H.N. tried to hit Norton more, but he grabbed her hands and the two "rastled." H.N. went into the bathroom, shut the door, and stayed there for about ten minutes. When H.N. left the bathroom, they went back to the car and she told Norton she wanted to look in on their children.

¶18 Norton drove to the marital home and they checked on the children. He then took H.N. back to her parents’ home. When they got there, H.N. told Norton that the door was locked, so he pushed through a locked gate and went to one of the back doors and pushed it open. He went inside and opened a different door to let H.N. into the home. Then, he again brought up having joint custody of their children. This started another argument. H.N. then claimed that he had broken into her parents’ home and beaten her up, and she threatened to call the police. Norton got scared and left. Later that morning, the police came and arrested him.

District Court Proceedings
Jury Instructions

¶19 The State charged Norton with aggravated kidnapping, aggravated burglary, aggravated assault, violation of a protective order, damage to or interruption of a communication device, and three counts of aggravated sexual assault. The three aggravated sexual assault charges were based on Norton squeezing H.N.’s breasts, raping her, and inserting his fingers into her vagina, respectively. The case proceeded to trial. When it came time to instruct the jury, Norton asked the court for instructions on a number of lesser included offenses. The court agreed to some of these instructions but denied others.

Verdict

¶20 On the charge of violation of a protective order and the two charges of aggravated sexual assault relating to rape and digital penetration, the jury found Norton guilty as charged. On the aggravated kidnapping, aggravated burglary, and aggravated assault charges, the jury found Norton guilty of the lesser included offenses of kidnapping, burglary, and assault. The jury acquitted him of interruption of a communication device and aggravated sexual assault related to squeezing H.N.’s breasts.

Sentencing

¶21 At sentencing, the most serious punishment Norton faced was for his two convictions of aggravated sexual assault. He made two arguments to persuade the district court to reject the presumptive punishment tier of fifteen years to life in favor of a lower punishment tier.2

¶22 First, Norton argued that the district court should not apply the higher sentencing tier applicable to aggravated sexual assault based on rape and forcible sexual abuse because the jury had not been given a special verdict form to indicate the type of sexual assault upon which they relied. Norton observed that the court had instructed the jury that sexual assault could be based on rape, attempted rape, forcible sexual abuse, or attempted forcible sexual abuse. But the court did not provide the jury with a special verdict form to indicate which underlying sexual assault offense formed the basis of either conviction.

¶23 In light of this, Norton argued there was no evidence these convictions were based on anything more than the least serious offense of attempted forcible...

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