State v. Blackwing
State v. Blackwing, 2020 UT App 72 (Appleby, J.)
The defendant, a martial arts and survival training “Shen lord,” entered into a sexual relationship with his seventeen-year-old student. The student eventually became the defendant’s third putative wife. The two engaged in multiple acts of sexual intercourse, including in Texas. At one point, DCFS caught wind of the relationship and the two stopped having intercourse until the student turned eighteen. Months later, the defendant was charged with and convicted of seven counts of rape on the theory that the student could not consent because of her age and because of the special relationship of trust the defendant held. The defendant appealed because, among other things, the State could not prove that one of the sexual acts took place in Utah. The Utah Court of Appeals reversed one of the rape charges and affirmed the rest, holding:
- The State did not meet its evidentiary burden that the defendant and the student engaged in seven sex acts in Utah before the student turned eighteen. The student testified that the two engaged in seven distinct sexual acts before her eighteenth birthday, none of which occurred after the two returned from Texas—a visit that occurred in April. Considering the evidentiary picture, the jury would have to find that three sex acts occurred in April before the visit to Texas. Testimony that the two engaged in sexual intercourse “more than one time” in April lends a reasonable inference that sexual intercourse occurred at least two times in April. But without more information, speculation is required in order to find that sexual intercourse occurred at least three times in April based upon the testimony that it occurred “more than one time.” Taking the other evidence into account, the testimony of the seven sex acts therefore includes the act in Texas, which the Utah court does not have jurisdiction over.
- The issue of criminal jurisdiction need not be raised at trial. An appellate court may dismiss a charge for lack of criminal jurisdiction at any time, regardless of when the issue is raised. The charge based upon that act must be reversed.
- The Court of Appeals did not have jurisdiction over the defendant’s remaining claims arising from his motion for a new trial. The defendant filed a motion for a new trial on October 3, 2017, and on October 16, 2017, he filed his notice of appeal. The Court of Appeals remanded the defendant’s case to the district court to resolve the new trial motion. The motion was denied. The defendant did not thereafter file a new or amended notice of appeal under rule 4 of the Utah Rules of Appellate Procedure. The Court of Appeals, therefore, lacked jurisdiction to consider whether the district court erred in denying his motion for a new trial.