The Appellate Group

State v. Newton

State v. Newton, 2020 UT 24 (Himonas, J.)


A woman claimed the defendant raped her one night in his car; he claimed the sex was consensual. Both testified at trial. He was acquitted of most of the charges but convicted of one count of aggravated sexual assault and aggravated assault. After trial, the defendant obtained new counsel and moved for a new trial because, he argued, trial counsel was ineffective for not having objected to the rape jury instruction and the State had violated Maryland v. Brady when it failed to conduct a forensic examination of the victim’s phone before trial. The Utah Court of Appeals affirmed his convictions, holding:

  • The jury instruction on rape, although more ambiguous than acknowledged by the court of appeals, did not prejudice the defendant. While the record contains two competing versions of the event, the physical evidence corroborates the victim’s story, and the jury’s conviction shows that it believed her side of the story. Since the defendant’s story was not that he mistook her actions for consent but that she initiated the sexual contact and jumped on top of him, there is no chance the jury believed that the truth lay somewhere in-between both stories, as the defendant suggests on certiorari. Thus, even if the instruction were clearer as to the mens rea for nonconsent, the defendant has not shown a reasonable probability of a different outcome.
  • A correct jury instruction on rape should clearly convey that the jury must find the appropriate mental state as to both the sexual act and the victim’s nonconsent. The Model Utah Jury Instruction (MUJI) instruction adequately does the job. Here, the jury could have found that the instruction applied to either element or to both. 
  • The State had no duty under Maryland v. Brady, 373 U.S. 83, to conduct a forensic examination of the cell phone before trial. The prosecution did not suppress the evidence found on the cell phone. And a prosecutor generally has no duty “to search for exculpatory evidence, conduct tests, or exhaustively pursue every angle on a case.” No duty arises under Brady unless the exculpatory value of untested evidence is apparent. The cell phone was simply an avenue of investigation that might have led in any number of directions. 
  • The evidence retrieved from the cell phone was ultimately not material because there is not a reasonable probability that the evidence found on the cell phone, if presented to the jury, would have resulted in a different outcome for the defendant. The evidence on the phone adds nothing new to the case and would not have raised a reasonable doubt as to the defendant’s guilt.
  • The court refused to consider an argument not presented to the court of appeals and, therefore, not granted in the petition for certiorari.
  • Concurring (Petersen, J.): The fourth element of the MUJI offense of rape instruction contains an issue. The instruction provides that the jury must find that the defendant “acted with intent, knowledge, or recklessness that the victim did not consent.” While knowledge and recklessness make sense in the context of consent, intent does not: the meaning of intent does not correspond to a person’s awareness of a surrounding circumstance. MUJI committee has also flagged this issue.

Read the full court opinion