State v. Norton , 2020 UT 46 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 46IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
LONNIE NORTON,
Petitioner.
No. 20180514
Heard May 13, 2019
Filed July 13, 2020
On Certiorari to the Utah Court of Appeals
Third District, West Jordan
The Honorable Bruce C. Lubeck
No. 131400015
Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard,
Asst. Solic. Gen., Salt Lake City, for respondent
Lori J. Seppi, Salt Lake City, for petitioner
JUSTICE PETERSEN authored the opinion of the Court with respect
to Parts I–IV in which CHIEF JUSTICE DURRANT,
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, and
JUSTICE PEARCE joined, and wrote separately in Part V in which
ASSOCIATE CHIEF JUSTICE LEE joined.
CHIEF JUSTICE DURRANT filed an opinion concurring in part and
concurring in the judgment, in which JUSTICE HIMONAS and
JUSTICE PEARCE joined.
STATE v. NORTON
Opinion of the Court
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
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1 “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation omitted).
“We present conflicting evidence only as necessary to understand
issues raised on appeal.” Id.2
Cite as: 2020 UT 46Opinion of the Court
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
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Opinion of the Court
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
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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
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Opinion of the Court
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 sexual abuse. So he reasoned
the district court could sentence him only to six years to life, the
sentencing range corresponding to aggravated sexual assault
based on attempted forcible sexual abuse. UTAH CODE § 76-5-
405(2)(c)(i). The court rejected this argument and concluded the
presumptive range for the two counts of aggravated sexual
assault should be fifteen years to life, the tier corresponding to
aggravated sexual assault based on completed acts of rape and
forcible sexual abuse. Id. §§ 76-5-405(2)(a)(i), -405(2)(b)(i).
¶24 Second, Norton argued that the district court should
depart from the higher sentencing tier in the “interests of justice”
due to his history, distressed state at the time of the crime, and
commitment to improving. The State countered that fifteen years
to life was an appropriate sentence because Norton committed “a
terrible crime” and had never accepted responsibility for his
actions. The court acknowledged that this was a “very difficult
case” and that Norton had a “good past” and might be “entitled
to some mercy.” However, the court noted Norton’s “inability and
unwillingness to follow the truth” and that his actions were the
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2 The statutory sentencing range for aggravated sexual assault
varies based on the type of sexual assault involved in the offense.
If the underlying offense is rape or forcible sexual abuse, the
presumptive sentence is fifteen years to life. UTAH CODE
§ 76-5-405(2)(a)(i). If the underlying offense is attempted rape, the
presumptive sentence is ten years to life. Id. § 76-5-405(2)(b)(i).
And if the underlying offense is attempted forcible sexual abuse,
the presumptive sentence is six years to life. Id. § 76-5-405(2)(c)(i).
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“kind of conduct that simply cannot be accepted in our society.”
The court sentenced Norton to fifteen years to life in prison on
both counts of aggravated sexual assault, to run concurrently.
¶25 In total, the district court sentenced Norton to fifteen
years to life in prison on both aggravated sexual assault
convictions, one to fifteen years in prison for kidnapping, one to
fifteen years in prison for burglary, 180 days for assault, and 365
days for violation of a protective order. The court ran each prison
term concurrently.
Court of Appeals’ Decision
¶26 Norton appealed, making five claims. Two of Norton’s
claims centered on the district court’s jury instructions. He argued
that the instructions on aggravated sexual assault and the
underlying offenses of rape and forcible sexual abuse misstated
the law because they did not make clear that Norton had to act
intentionally or knowingly with regard to H.N.’s nonconsent.
State v. Norton, 2018 UT App 82, ¶¶ 25, 28, 427 P.3d 312. He also
argued that the district court erred in rejecting some of his
requests for instructions on lesser included offenses. Id. ¶ 26.
¶27 Norton also challenged his sentence. He argued that the
district court’s decision to apply the fifteen-to-life sentencing tier
for his aggravated sexual assault convictions “violated his rights
to due process and a jury trial” because the jury had not been
given a special verdict form to indicate the type of sexual assault
forming the basis of these convictions. Id. ¶ 57. He reasoned that
this “impermissibly increased the penalty he would have received
had he been sentenced according to the facts that he claims were
reflected in the jury’s verdict.” Id. ¶ 59. He also argued that the
court abused its discretion when it failed to properly conduct the
interests of justice analysis required by LeBeau v. State, 2014 UT 39,
337 P.3d 254. Norton, 2018 UT App 82, ¶ 67.
¶28 Finally, Norton argued that the court of appeals should
reverse his convictions under the cumulative error doctrine. Id.
¶ 87.
¶29 The court of appeals rejected each argument. First, the
court concluded that even if the jury instructions regarding
aggravated sexual assault, rape, and forcible sexual abuse were
erroneous as to the required mental state for H.N.’s nonconsent,
any such error did not prejudice Norton. Id. ¶ 40. Second, the
court of appeals determined that the district court did not err in
refusing to give certain lesser included offense instructions that
Norton had requested. Id. ¶¶ 49, 53, 56. It further concluded that
at sentencing, the district court correctly determined the
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Opinion of the Court
presumptive sentencing tier for the aggravated sexual assault
convictions and properly considered all the evidence and
argument presented by the parties. Id. ¶ 86. It also declined to
reverse on cumulative error grounds. Id. ¶ 87.
¶30 We granted Norton’s petition for certiorari on each of
these claims. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(a).
STANDARD OF REVIEW
¶31 “On certiorari, we review for correctness the decision of
the court of appeals . . . .” State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d
1096.
ANALYSIS
¶32 We granted certiorari to consider whether the court of
appeals erred in (1) concluding that any error in the jury
instructions on aggravated sexual assault, rape, and forcible
sexual abuse did not prejudice Norton; (2) affirming the district
court’s refusal to instruct the jury on additional lesser included
offenses of aggravated sexual assault, aggravated burglary, and
aggravated kidnapping; (3) affirming the district court’s sentence
of fifteen years to life on both convictions of aggravated sexual
assault; (4) concluding that the district court conducted a proper
interests of justice analysis at sentencing; and (5) rejecting
Norton’s claim of cumulative error. We address each issue in turn.
I. JURY INSTRUCTIONS
¶33 Norton contends that the jury instructions on aggravated
sexual assault and the underlying offenses of rape and forcible
sexual abuse were incorrect. He argues that the instructions did
not adequately explain that to convict, the jury must find that he
acted knowingly and intentionally with regard to H.N.’s
nonconsent. He further contends that if the jury had been
properly instructed, there was a reasonable probability it would
have acquitted him on these charges. Norton did not object to
these instructions at trial, so he asks us to review this claim for
plain error,3 manifest injustice,4 and ineffective assistance of
counsel.
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3 The State argues that we should not conduct a plain error
review because Norton invited any error in these instructions. At
trial, the district court told counsel that if they did not object to an
instruction, the court would assume they approved of it. Norton’s
counsel did not object to these instructions, and the State argues
(continued . . .)
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¶34 The court of appeals assumed without deciding that the
jury instructions were incorrect, and it disposed of this issue
based on lack of prejudice. State v. Norton, 2018 UT App 82, ¶¶ 30–
40, 427 P.3d 312. We agree with the court of appeals that even
assuming Norton’s criticism of these instructions is right, he has
not shown prejudice.
¶35 To show plain error or ineffective assistance of counsel,
Norton must prove he was prejudiced by the alleged error. See
State v. Jimenez, 2012 UT 41, ¶ 20, 284 P.3d 640. The prejudice
standards for plain error and ineffective assistance are the same.
State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699. Prejudicial error
occurs when “there is a reasonable probability” that but for the
alleged errors, “the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).
¶36 Norton argues that the jury instructions did not clearly
explain the requisite mens rea regarding H.N.’s nonconsent. At
trial, the district court instructed the jury that the State had to
“prove a mental state as to each of the . . . counts charged.” It then
defined the mental states “intentionally”5 and “knowingly.”6
this is tantamount to invited error. We decline to address the
State’s argument because we must still analyze prejudice to
determine Norton’s ineffective assistance of counsel claim. And
because we agree with the court of appeals that, even assuming
these jury instructions were erroneous, they did not prejudice
Norton, his claim fails whether we review it for ineffective
assistance, manifest injustice, or plain error.
4 Our precedent holds that in many instances “’manifest
injustice’ and ‘plain error’ are operationally synonymous.” State v.
Bullock, 791 P.2d 155, 159 (Utah 1989); see also State v. Johnson, 2017
UT 76, ¶ 57 n.16, 416 P.3d 443; State v. Maestas, 2012 UT 46, ¶ 37,
299 P.3d 892. Norton has not argued otherwise; therefore, we
review his argument under the plain error standard.
5 The district court instructed the jury that a “person acts
intentionally . . . when his conscious objective is to cause a certain
result or to engage in certain conduct.” See UTAH CODE § 76-2-
103(1).
6The district court instructed the jury that a “person acts
knowingly . . . when the person is aware of the nature of his
conduct or is aware of the particular circumstances surrounding
(continued . . .)
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Opinion of the Court
¶37 Regarding aggravated sexual assault, the district court
instructed the jury that it could find Norton guilty if it found
beyond a reasonable doubt that:
1. [Norton] raped or attempted to rape or committed
forcible sexual abuse or attempted forcible sexual
abuse against [H.N.]; and
2. That in the course of that rape or attempted rape
or forcible sexual abuse or attempted forcible sexual
abuse [Norton]
(a) used or threatened [H.N.] with the use of a
dangerous weapon; or
(b) compelled, or attempted to compel, [H.N.]
to submit to rape or forcible sexual abuse by
threat of kidnap[p]ing, death, or serious
bodily injury to be inflicted imminently; and
3. That [Norton] did such acts knowingly or
intentionally.
¶38 The district court then instructed the jury on rape and
forcible sexual abuse. Regarding rape, it instructed the jury that it
could convict Norton if it found beyond a reasonable doubt that:
1. [Norton] had sexual intercourse with [H.N.]; and
2. That such conduct was without the consent of
[H.N.]; and
3. That said conduct was done intentionally or
knowingly.
¶39 With regard to forcible sexual abuse, the district court
instructed the jury that it could convict Norton if it found beyond
a reasonable doubt that:
1. [Norton] touched the anus, buttocks, breasts, or
any part of the genitals of H.N.; and
2. That such conduct was done with the intent to
either
(a) cause substantial emotional or bodily pain
to [H.N.], or
his conduct,” and when the person is “aware that his conduct is
reasonably certain to cause the result.” See id. § 76-2-103(2).
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(b) arouse or gratify the sexual desires of any
person; and without the consent of [H.N.];
and
3. That said conduct was done intentionally or
knowingly.
¶40 Norton relies on State v. Barela to argue that the rape and
forcible sexual abuse instructions are incorrect because they
“implied that the mens rea requirement . . . applied only to the act
of sexual intercourse and not to the alleged victim’s nonconsent.”
2015 UT 22, ¶ 26, 349 P.3d 676. If these instructions are incorrect,
so too is the aggravated sexual assault instruction because it
incorporates the instructions for these associated offenses.
¶41 The court of appeals declined to decide whether these
instructions were erroneous, instead holding that even if they
were, it was not prejudicial error. To determine whether the
omission of an element from a jury instruction is prejudicial, we
analyze “whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted
element.” Neder v. United States, 527 U.S. 1, 19 (1999). Here, we ask
specifically whether a reasonable jury could have found, based on
the “totality of the evidence in the record,” that the defendant did
not have the required mental state as to the victim’s nonconsent.
Barela, 2015 UT 22, ¶ 31.
¶42 We agree with the court of appeals that a reasonable jury
could not have found that Norton mistook H.N.’s conduct for
consent based on the totality of the evidence. Norton, 2018 UT App
82, ¶¶ 37–40. Because the jury acquitted Norton of the charge of
aggravated sexual assault related to squeezing H.N.’s breasts,
only the counts based on the nonconsensual intercourse (rape)
and digital penetration (forcible sexual abuse) are at issue.
¶43 The trial evidence with respect to these two incidents
could not support a finding that Norton may have mistakenly
interpreted H.N.’s behavior to indicate consent. With regard to
the intercourse, Norton’s testimony did not describe ambiguous
behavior that he could have believed was consent. Rather, he
testified that H.N. initiated sexual activity by sitting on his lap
and later climbing on top of him. And in his version of events, the
digital penetration never happened. He claimed she fabricated her
claims against him. Specifically, he testified that after he returned
her to her parents’ home he again tried to discuss custody of the
children and she threatened to call the police and accuse him of
breaking into the house and beating her up.
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Opinion of the Court
¶44 And H.N.’s testimony similarly left no room for a finding
that Norton mistook her conduct for consent. H.N. had a
protective order against Norton. She testified that she had pulled
a dryer in front of the basement door when she first moved into
her parents’ home. And each night she secured the front and back
doors by positioning chairs under the doorknobs. Despite her
efforts to create a barricade, H.N. testified that Norton broke into
the house, punched her in the face, wrapped duct tape around her
head and over her mouth, took her into the snowy night with no
shoes on, took her to an empty building, and forced her inside at
gun point. Once inside, he commanded her to undress at gun
point and then raped her. He then tried to get rid of the evidence
by directing her to clean up and inserting his fingers into her
vagina to ”rinse himself out.” H.N. testified that she told him “no”
multiple times.
¶45 Other evidence corroborated her version of events. The
police found strands of hair that resembled H.N.’s in a bathtub in
the Fort Douglas building they searched, a wad of duct tape with
hair in it in the dumpster behind the building, a mark on H.N.’s
lower back, swelling and the beginning of bruising on H.N.’s face,
and bruising on her inner thighs and labia.
¶46 Norton points to H.N.’s testimony that she squeezed his
penis as evidence that could have persuaded a jury that Norton
believed she was consenting. But this incident was characterized
by both sides as an act of protest. H.N. testified that in response,
Norton grabbed both her hands and pinned them above her head.
And Norton did not say in his testimony that he believed the
squeeze indicated participation. Rather, he did not mention it.
And Norton’s counsel argued during closing that the squeeze
refuted H.N.’s claim that she was “totally terrified of him” and
indicated she was “not afraid to use force” and “not afraid to be
confrontational.” And even if somehow a reasonable jury could
have seen H.N.’s isolated act of squeezing Norton’s penis as
ambiguous, any ambiguity vanishes when this act is viewed along
with the rest of the trial evidence.
¶47 A comparison with the facts in Barela helps demonstrate
why the jury instructions here were not prejudicial. In Barela, a
woman claimed her massage therapist raped her. 2015 UT 22, ¶ 6.
The therapist claimed the sex was consensual. Id. ¶ 5. After a jury
convicted the therapist of rape, he challenged on appeal a jury
instruction that did not clearly state the required mens rea for the
victim’s nonconsent. Id. ¶¶ 15–16. We agreed and reversed the
defendant’s convictions. Id. ¶ 32.
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¶48 This court found that the evidence was such that a jury
could have “thought that the truth fell somewhere in between the
two accounts.” Id. ¶ 30. While the victim in that case said the
defendant had suddenly instigated and perpetrated the
intercourse without her consent, she testified that she “froze,”
“neither actively participating in sex nor speaking any words,”
and otherwise expressed no reaction. Id. ¶ 29. This court
concluded that a jury could have believed that although the
victim did not consent, the defendant may have mistakenly
thought she did. See id. ¶¶ 30–32. Accordingly, we held that it was
“reasonably likely” that a proper jury instruction regarding the
requisite mental state as to the victim’s nonconsent could have
affected the outcome of the trial. Id. ¶¶ 31–32.
¶49 In contrast, a reasonable jury could not look at the totality
of the trial evidence here and find that, under either version of
events, Norton may have mistaken H.N.’s conduct for consent.
Norton claims H.N. initiated the sexual activity and then
manufactured and exaggerated her claims against him. H.N.
claims Norton kidnapped her and then raped her at gunpoint.
This case does not involve behavior that the jury could have
viewed as a close call in either direction.
¶50 Accordingly, this case does not turn on whether Norton
may have mistaken H.N.’s conduct for consent. Rather, H.N.’s
and Norton’s versions of the events in question were mutually
exclusive, and the jury had to decide who to believe. We agree
with the court of appeals that even assuming the jury instructions
were erroneous, it was not reasonably likely that absent the errors
the outcome of the trial would have been different.
¶51 While the jury instruction here could have been clearer,
see State v. Newton, 2020 UT 24, ¶ 29, --- P.3d --- (identifying Model
Utah Jury Instruction CR1605 as an example of a clear jury
instruction for the offense of rape), we conclude that Norton did
not show he was prejudiced by the instruction, and consequently
that he failed to establish manifest injustice, plain error, or
ineffective assistance of counsel.
II. LESSER INCLUDED OFFENSES
¶52 Norton argues that the court of appeals erred in affirming
the district court’s refusal to instruct on additional lesser included
offenses of aggravated kidnapping, aggravated burglary, and two
of the counts of aggravated sexual assault.
¶53 Relevant here, an offense constitutes a lesser included
offense when it is “established by proof of the same or less than
all the facts required to establish the commission of the offense
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Opinion of the Court
charged” or is “specifically designated by a statute as a lesser
included offense.” UTAH CODE § 76-1-402(3)(a), (c).
¶54 When a defendant requests an instruction on a lesser
included offense, we use the evidence-based standard codified in
Utah Code section 76-1-402(4) to determine whether such an
instruction is required. See State v. Powell, 2007 UT 9, ¶ 24, 154
P.3d 788. We first ask whether the charged offense and the lesser
included offense have “some overlap in the statutory elements.”
State v. Baker, 671 P.2d 152, 159 (Utah 1983). We then inquire
whether the trial evidence “provides a rational basis for a verdict
acquitting the defendant of the offense charged and convicting
him of the included offense.” Id. at 159 (citation omitted) (internal
quotation marks omitted); see also Powell, 2007 UT 9, ¶ 24; UTAH
CODE § 76-1-402(4). We must determine whether there is “a
sufficient quantum of evidence presented to justify sending the
question to the jury.” Baker, 671 P.2d at 159. And we view the
evidence “in the light most favorable to the defendant requesting
the instruction.” Powell, 2007 UT 9, ¶ 27.
¶55 The court of appeals carefully analyzed each of Norton’s
claims of entitlement to an instruction on a lesser included
offense. We affirm the court of appeals’ decision with regard to all
but one of those claims.
A. Aggravated Kidnapping
¶56 Norton argues that the court of appeals erred in affirming
the district court’s refusal to instruct on unlawful detention as a
lesser included offense of aggravated kidnapping. We agree with
the court of appeals’ decision.
¶57 At trial, both parties requested an instruction on
kidnapping as a lesser included offense of aggravated
kidnapping. Additionally, Norton requested an instruction on
unlawful detention. The district court instructed the jury on
kidnapping but not unlawful detention. Ultimately, the jury
acquitted Norton of aggravated kidnapping but convicted him of
kidnapping.
¶58 The State’s aggravated kidnapping charge was based on
Norton abducting H.N. from the home, duct-taping her head and
mouth, and taking her to Fort Douglas where he sexually
assaulted her and periodically held her at gunpoint. In contrast,
Norton testified that H.N. willingly left her home and
accompanied him to the Fort Douglas building. However, he
claimed that when they arrived at the empty building they
argued, H.N. hit Norton, and he responded by backhanding her.
He then restrained H.N.’s hands to prevent her from hitting him
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again. On appeal, Norton identifies his testimony that he
temporarily restrained H.N.’s hands as being sufficient to require
the district court to instruct on unlawful detention.
¶59 Unlawful detention is statutorily defined as a lesser
included offense of aggravated kidnapping.7 UTAH CODE
§ 76-5-306(2); see also id. § 76-1-402(3). But the conduct identified
by Norton is a separate act that is not included within the conduct
that constituted the greater offense of aggravated kidnapping
here. “Even if there is overlap in the statutory elements, if the
convictions rely on materially different acts, then one crime will
not be a lesser included offense of another.” State v. Garrido, 2013
UT App 245, ¶ 31, 314 P.3d 1014 (internal quotation marks
omitted).
¶60 Norton’s testimony that he restrained H.N.’s hands at
Fort Douglas is separate, uncharged conduct. As to the conduct
that is the basis for the aggravated kidnapping charge—abducting
H.N. from the home, taking her to the Fort Douglas building,
periodically holding her at gunpoint, and sexually assaulting
her—Norton claims it was all voluntary and consensual. Based on
the trial evidence, the choice for the jury was to either convict him
of aggravated kidnapping or kidnapping based on H.N.’s
testimony, or acquit him based on his testimony. If the jury
believed Norton’s version of events, it could not convict him of
restraining H.N.’s hands—a separate act for which he was not
charged.
¶61 We also note that Norton’s testimony does not appear to
even establish the offense of unlawful detention. Unlawful
detention requires restraint or detention “without authority of
__________________________________________________________
7 To prove aggravated kidnapping, the State must show in
relevant part that “in the course of committing unlawful detention
or kidnapping,” a person “(a) possesses, uses, or threatens to use a
dangerous weapon,” or (b) acts with intent “(vi) to commit a
sexual offense.” UTAH CODE § 76-5-302(1)(a), (1)(b)(vi) (2012). (We
cite to the version of the statute in effect at the time of the events
in question for this and other statutory provisions that have been
substantively amended since that time.) To prove unlawful
detention, the State must prove only that an actor “intentionally
or knowingly, without authority of law, and against the will of the
victim, detains or restrains the victim under circumstances not
constituting a violation of: (a) kidnapping . . . or (c) aggravated
kidnapping.” Id. § 76-5-304(1) (2012).
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STATE v. NORTON
Opinion of the Court
law.” UTAH CODE § 76-5-304(1) (2012). But Norton claimed he
restrained H.N.’s hands in self-defense to stop her from hitting
him, and we must look at the evidence in the light most favorable
to him without weighing credibility. See Powell, 2007 UT 9, ¶ 27.
Restraining another’s hands in self-defense is not unlawful. See
UTAH CODE § 76-2-402(1)(a) (2012) (providing that a “person is
justified in threatening or using force against another when and to
the extent that the person reasonably believes that force or a threat
of force is necessary to defend the person or a third person against
another person’s imminent use of unlawful force”). So Norton’s
evidence does not amount to unlawful detention.
¶62 Fundamentally, the evidence before the jury provided no
rational basis for a verdict acquitting Norton of aggravated
kidnapping and instead convicting him of unlawful detention. See
id. § 76-1-402(4). Accordingly, we agree with the court of appeals
that the district court was not obligated to instruct the jury on
unlawful detention.8
B. Aggravated Burglary
¶63 Norton argues that he was entitled to instructions on
aggravated assault, assault, and criminal trespass as lesser
included offenses of aggravated burglary. We agree with the court
of appeals that these “are not lesser included offenses of
aggravated burglary under the facts of this case.” Norton, 2018 UT
App 82, ¶ 55.
¶64 At trial, the district court instructed on burglary as a
lesser included offense of aggravated burglary. But the court did
not instruct on aggravated assault, assault, or criminal trespass.
__________________________________________________________
8 The State agrees with the court of appeals that an instruction
on unlawful detention was not required here but disagrees with
that court’s analysis. The State reasons that because the
kidnapping was an ongoing crime that continued at Fort Douglas,
the evidence of Norton restraining H.N.’s hands was not a
separate act. We appreciate the State’s point, but we ultimately
agree with the court of appeals’ analysis for the reasons explained
above, supra ¶¶ 56–62. The evidence Norton identifies provides a
rational basis for a verdict acquitting him of aggravated
kidnapping, but not for one convicting him of unlawful detention
because the restraint was a separate uncharged act. See UTAH
CODE § 76-1-402(4).
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¶65 Aggravated burglary, aggravated assault, and assault do
have overlapping statutory elements.9 But again, Norton relies on
evidence of a materially separate, uncharged act to argue that the
district court should have instructed on these offenses.
¶66 The State’s aggravated burglary charge was based on the
events surrounding Norton breaking into H.N.’s parents’ home at
the beginning of the night in question. These events included
H.N. waking to a “loud bang”—presumably caused by one of the
objects she had used to barricade the doors—and finding Norton
standing at the end of her bed. He then punched her in the face.
¶67 At trial, Norton denied all of this. He claimed that he did
not break into H.N.’s parents’ home at the beginning of the night,
but that he waited in his car outside of the home for her to
willingly join him. However, he points to his testimony that he
backhanded H.N. and injured her face at Fort Douglas as
supporting instructions on aggravated assault and assault as
lesser included offenses of aggravated burglary.
¶68 This is an uncharged act that is separate from the conduct
forming the basis of the aggravated burglary charge—Norton
breaking into H.N.’s parents’ home and punching her in the face.
As the court of appeals aptly concluded, “Because the facts and
evidence developed to establish the greater offense of aggravated
burglary were different from the facts and evidence relied upon
__________________________________________________________
9 At the time of the conduct at issue, aggravated burglary
occurred when a person “in attempting, committing, or fleeing
from a burglary . . . (a) cause[d] bodily injury to any person who
[was] not a participant in the crime; (b) use[d] or threaten[ed] the
immediate use of a dangerous weapon against any person who
[was] not a participant in the crime; or (c) possesse[d] or
attempt[ed] to use any explosive or dangerous weapon.” Id. § 76-
6-203(1).
An aggravated assault occurred if a person “commit[ed]
assault” and used “(a) a dangerous weapon . . . or (b) other means
or force likely to produce death or serious bodily injury.” Id. § 76-
5-103(1).
And an assault was “(a) an attempt, with unlawful force or
violence, to do bodily injury to another; (b) a threat, accompanied
by a show of immediate force or violence, to do bodily injury to
another; or (c) an act, committed with unlawful force or violence,
that cause[d] bodily injury to another or create[d] a substantial
risk of bodily injury to another.” Id. § 76-5-102(1) (2012).
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Opinion of the Court
by Norton to claim entitlement to the lesser included offense
instructions of aggravated assault and assault, those lesser
offenses were not included within the greater offenses.” Id. ¶ 56.
¶69 Norton’s testimony about this uncharged conduct
provides a basis for an additional offense but not a lesser offense
included within the conduct for which he was actually charged.
Accordingly, the evidence at trial did not provide a rational basis
for a verdict acquitting Norton of aggravated burglary or burglary
and instead convicting him of aggravated assault or assault. So
the district court was not required to give the lesser included
offense instructions he requested.
¶70 Norton also argued to the court of appeals that he was
entitled to an instruction on criminal trespass because he went to
H.N.’s residence at the end of the night, which the protective
order prohibited. See id. ¶ 56 n.13. Because Norton’s trial counsel
did not request a criminal trespass instruction, Norton raises this
argument based on ineffective assistance of counsel. See id.
¶71 The court of appeals concluded again that because of the
different underlying conduct that Norton relied on to make his
argument, “criminal trespass was not an included offense of
aggravated burglary under the circumstances of this case, and
Norton’s counsel was therefore not ineffective for failing to
request criminal trespass as a lesser included instruction.” Id.
¶72 The court of appeals was correct. Norton’s testimony
about going to H.N.’s parents’ home at the end of the night is
separate from his breaking into the house at the beginning of the
night. It is uncharged conduct. If it did support a conviction for
criminal trespass, that conviction would not be in lieu of burglary
but in addition to it. Accordingly, the district court was not
required to instruct on criminal trespass and Norton’s counsel
was not ineffective for not requesting such an instruction.
C. Aggravated Sexual Assault Based on Rape
¶73 Norton argues that the district court erred in declining to
instruct the jury on sexual battery as a lesser included offense of
aggravated sexual assault based on rape. But we agree with the
court of appeals that the district court did not err in refusing to
give such an instruction.
¶74 At trial, Norton and the State requested instructions on
rape, forcible sexual abuse, and sexual battery as lesser included
offenses of aggravated sexual assault based on rape. The district
court did instruct the jury on rape and forcible sexual abuse, but
not on sexual battery. Although the jury was instructed on two
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lesser included offenses, it convicted Norton of aggravated sexual
assault as charged.
¶75 The offenses of aggravated sexual assault based on the
underlying offense of rape and sexual battery have overlapping
elements.10 Norton argues that he was entitled to a sexual battery
instruction because the jury could have disbelieved H.N. or found
that she exaggerated her allegations to gain an advantage in the
custody battle. Norton also asserts that her testimony about the
rape was ambiguous because she did not struggle after he
initiated sex, except to squeeze his penis. And he argues that in
light of his testimony that the sex was consensual, the jury could
have found that no rape occurred, but when Norton held her
hands above her head, that particular sexual position might have
caused her momentary affront or alarm.
¶76 This is pure speculation. Norton has not identified a
quantum of evidence presented at trial that would support
instructing the jury on sexual battery. Norton testified that the
sexual intercourse was entirely consensual and that H.N. was an
active participant. The only testimony about him pinning H.N.’s
hands above her head came from her. And she testified that she
did not consent to any sexual activity, and that when he held her
hands above her head it was in response to her squeezing his
penis. There was no evidence to support a finding that the
__________________________________________________________
10 The relevant statutory language provides, “A person
commits aggravated sexual assault if: (a) in the course of a rape
. . . or forcible sexual abuse, the actor: (i) uses, or threatens the
victim with the use of, a dangerous weapon” or “(ii) compels, or
attempts to compel, the victim to submit to rape . . . or forcible
sexual abuse[] by threat of kidnap[p]ing, death, or serious bodily
injury to be inflicted imminently on any person.” UTAH CODE
§ 76-5-405(1).
“A person commits rape when the actor has sexual intercourse
with another person without the victim’s consent.” Id. § 76-5-
402(1).
“A person is guilty of sexual battery if the person, under
circumstances not amounting to” rape, forcible sexual abuse,
attempted rape, or attempted forcible sexual abuse, “intentionally
touches, whether or not through clothing, the anus, buttocks, or
any part of the genitals of another person, or the breast of a female
person, and the actor’s conduct is under circumstances the actor
knows or should know will likely cause affront or alarm to the
person touched.” Id. § 76-9-702.1(1).
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STATE v. NORTON
Opinion of the Court
intercourse was consensual, but Norton should have known that
H.N. intermittently experienced affront or alarm. Accordingly, the
evidence did not provide a rational basis to acquit Norton of rape
and instead convict him of sexual battery. See UTAH CODE § 76-1-
402(4). So no such instruction was required.
D. Aggravated Sexual Assault Based on Forcible Sexual Abuse
¶77 Norton also argues that the court of appeals erred in
affirming the district court’s refusal to instruct on sexual battery
as a lesser included offense of aggravated sexual assault based on
forcible sexual abuse. We agree with Norton that an instruction on
sexual battery was required.
¶78 First, aggravated sexual assault based on forcible sexual
abuse and sexual battery have “some overlap in the statutory
elements.” Baker, 671 P.2d at 159. Both offenses require that the
actor touches the anus, buttocks, or any part of the genitals of
another. See UTAH CODE §§ 76-5-404(1), 76-5-405(1), and 76-9-
702.1(1) (2012). But they have different requisite mental states.
Forcible sexual abuse requires that the defendant act with the
intent to cause substantial emotional or bodily pain or to gratify
the sexual desire of any person. Id. § 76-5-404(1) (2012). But sexual
battery requires only that the defendant’s conduct be under
circumstances that the defendant knows or should know would
cause affront or alarm to the person touched. Id. § 76-9-702.1(1).
¶79 Second, we conclude that “the evidence offered provides
a rational basis for a verdict acquitting the defendant of the
offense charged and convicting him of the included offense.”
Baker, 671 P.2d at 159 (citation omitted) (internal quotation marks
omitted); see also UTAH CODE § 76-1-402(4). Here, both the State
and Norton rely on H.N.’s testimony that Norton inserted his
finger into her vagina to wipe away his DNA. Norton’s testimony
was that this touch did not happen. But relying on H.N.’s
testimony that the touch occurred, Norton argues that the
evidence, if believed, would support a finding that Norton
“touched [H.N.] under circumstances he knew or should have
known would likely cause affront or alarm” (the mental state
required for sexual battery), rather than with intent to cause
substantial emotional or bodily pain or to gratify his sexual desire
(the mental state required for forcible sexual abuse).
¶80 We agree. H.N.’s testimony indicates Norton was
attempting to conceal his crime. While a jury could infer that in
doing so he also intended to gratify his sexual desire or cause
H.N. emotional or bodily pain, a jury could also infer from the
same evidence that Norton touched H.N.’s vagina only under
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circumstances he knew or should have known would likely cause
her affront or alarm. The trial evidence therefore provides a
rational basis for a verdict acquitting Norton of aggravated sexual
assault based on forcible sexual abuse and convicting him of
sexual battery.
¶81 We must now determine whether this error prejudiced
Norton. An error is prejudicial if there is a “reasonable likelihood
that the error affected the outcome of the proceedings.” State v.
Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (citation omitted).
¶82 We conclude this error did prejudice Norton because had
the jury been instructed on sexual battery, the evidence supported
a conviction on the less serious charge and an acquittal on both
aggravated sexual assault and the lesser included offense on
which the district court instructed—forcible sexual abuse. Here,
although the district court instructed on the lesser included
offense of forcible sexual abuse, the jury convicted Norton on
aggravated sexual abuse as charged. Generally,
[w]here a jury is instructed on, and has the
opportunity to convict a defendant of, a lesser
included offense, but refuses to do so and instead
convicts the defendant of a greater offense, failure to
instruct the jury on another lesser included offense,
particularly an offense that constitutes a lesser
included offense of the lesser included offense that
the jury was instructed on, is harmless error.
State v. Daniels, 2002 UT 2, ¶ 28, 40 P.3d 611.
¶83 However, this is a distinct situation and causes us to
depart from our more general precedent. If the jury were to infer
from H.N.’s testimony that Norton acted under circumstances that
he knew would cause her affront or alarm, but did not intend to
gratify his sexual desire or cause her emotional or physical pain,
that would lead to acquittal of both aggravated sexual assault and
forcible sexual abuse and conviction of sexual battery. Thus, there
is a reasonable likelihood that the error affected the outcome of
the proceedings. Accordingly, we conclude that the district court’s
error prejudiced Norton and reverse the court of appeals’
affirmance of Norton’s conviction of aggravated sexual assault
based on digital penetration.
III. SENTENCING
¶84 The longest potential terms of imprisonment Norton
faced at sentencing were for his two aggravated sexual assault
convictions. The district court sentenced him to fifteen years to life
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STATE v. NORTON
Opinion of the Court
in prison on both of them. He argues that this was error and that
the court of appeals should have reversed for two reasons.11
A. Special Verdict Form
¶85 Norton argues that the district court should not have
applied the sentencing tier applicable to aggravated assault based
on a completed act of rape because the jury was not given a
special verdict form to indicate which underlying sexual assault
offense formed the basis of the conviction. In light of this, Norton
argues the district court should have sentenced him to the lowest
term of six years to life—the sentencing range corresponding to an
aggravated sexual assault conviction based on attempted forcible
sexual abuse. UTAH CODE § 76-5-405(2)(c)(i).
¶86 The court of appeals held that the district court did not
err because there was no factual basis “to support a conclusion
that the jury could have determined that the sexual acts
underlying [the charge] constituted only attempted forcible sexual
abuse.” State v. Norton, 2018 UT App 82, ¶ 61, 427 P.3d 312.
¶87 While we affirm the court of appeals’ conclusion that the
district court applied the correct sentencing tier, we do so on an
alternative basis. We conclude that Norton did not preserve this
issue in the district court.
¶88 At trial, the district court instructed the jury that
aggravated sexual assault occurs when a person commits a sexual
assault such as rape, forcible sexual abuse, attempted rape, or
attempted forcible sexual abuse, and does so under certain
aggravating circumstances. UTAH CODE § 76-5-405(1). The
presumptive sentence for aggravated sexual assault varies based
on the underlying offense from which it arises. Id. § 76-5-405(2). If
the underlying offense is rape or forcible sexual abuse, the
presumptive sentence is fifteen years to life. Id. § 76-5-405(2)(a)(i).
If the underlying offense is attempted rape, the presumptive
sentence is ten years to life. Id. § 76-5-405(2)(b)(i). And if the
underlying offense is attempted forcible sexual abuse, the
presumptive sentence is six years to life. Id. § 76-5-405(2)(c)(i). A
court may impose a lesser term if it finds that doing so is in the
__________________________________________________________
11 As we have reversed the conviction for aggravated sexual
assault based on forcible sexual abuse, only the conviction for
aggravated sexual assault based on rape remains. Consequently,
we analyze Norton’s argument only with respect to the remaining
count.
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interests of justice and states the reasons for that finding on the
record. Id. § 76-5-405(3)(a), (4)(a), (5)(a).
¶89 At trial, defense counsel and the State reviewed the jury
instructions and neither requested a special verdict form. So when
the jury rendered its verdict, it did not identify the offense
underlying the aggravated sexual assault conviction.
¶90 At sentencing, Norton argued that without a special
verdict form there was no indication the jury found him guilty of
aggravated sexual assault based on anything but the least serious
offense of attempted forcible sexual abuse. He asserted that
consequently he should be sentenced only under the
corresponding sentencing tier of six years to life.
¶91 In response, the State argued that all evidence presented
at trial was of completed, not attempted, sexual assaults. So
Norton should be sentenced in accordance with the tier
corresponding to aggravated sexual assault based on a completed
act of rape. The district court agreed that fifteen years to life was
the presumptive punishment tier, given the evidence presented at
trial.
¶92 Norton argues that this deprived him of the due process
guarantee of “the right to a jury trial on every element of the
offense.” But Norton did not raise this argument until sentencing,
and that was too late.
¶93 “As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346. During trial, the parties met with the district court to
finalize the jury instructions. This was the appropriate time for
Norton to request that a special verdict form be included. But he
made no mention of a special verdict form. Rather, Norton raised
the issue at sentencing when it was too late for the district court to
remedy the issue.
¶94 This conclusion is contrary to that of our court of appeals,
which held the issue was preserved because Norton “made these
same arguments to the court below.” Norton, 2018 UT App 82,
¶ 59 n.15. It is correct that Norton made this argument at
sentencing. However, our preservation rules ensure that issues
are addressed and, if appropriate, corrected when they arise.
Holgate, 2000 UT 74, ¶ 11. Had Norton requested a special verdict
form at trial, the district court could have included a form or
denied his request. But at sentencing, it was too late for the district
court to do either. Accordingly, Norton’s claim is unpreserved. See
State v. Cram, 2002 UT 37, ¶ 11, 46 P.3d 230 (concluding that an
objection was not preserved because it could have been raised at
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STATE v. NORTON
Opinion of the Court
trial but was instead raised at a scheduling conference where the
error could no longer be corrected). Because Norton has not
argued any exception to the preservation requirement here, his
claim fails.12
B. Interests of Justice
¶95 Norton also argues that the district court erred in not
sentencing him to a lesser sentence “in the interests of justice.”
UTAH CODE § 76-5-405(3)(a). Specifically, Norton claims that in
sentencing him to the presumptive sentence of fifteen years to life
on his aggravated assault sexual conviction, see id. § 76-5-
405(2)(a)(i), the district court did not conduct the interests of
justice analysis or make the explicit findings required by LeBeau v.
State, 2014 UT 39, 337 P.3d 254. He argues this was an abuse of
discretion.
¶96 “We traditionally afford the trial court wide latitude and
discretion in sentencing.” State v. Woodland, 945 P.2d 665, 671
(Utah 1997). We will not set aside a sentence unless the district
court abused its discretion by “fail[ing] to consider all legally
relevant factors or if the sentence imposed is clearly excessive.”
State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (abrogated on
other grounds by State v. Smith, 2005 UT 57, 122 P.3d 615) (footnote
omitted) (internal quotation marks omitted).
¶97 But relying on our holding in LeBeau, Norton argues the
district court should have sua sponte analyzed the proportionality
__________________________________________________________
12 In any event, Norton’s argument does not persuade us that
the absence of a special verdict form was plain error. Norton relies
on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United
States, 570 U.S. 99 (2013) to argue that in the instance of a tiered
sentencing structure, where the jury is instructed on versions of
the offense that qualify for more than one tier, a special verdict
form is required. But this is an extension of Apprendi and Alleyne.
In Apprendi, the United States Supreme Court held that “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530
U.S. at 490 (emphasis added). In Alleyne, the Supreme Court
extended the same holding to any fact that increases the
mandatory minimum sentence. 570 U.S. at 108. And Norton does
not explain why Apprendi and Alleyne require a special verdict
form under the circumstances here.
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of his sentence and his potential for rehabilitation. In determining
proportionality, Norton argues that the court should have
considered both the gravity of his conduct in relation to the
severity of the sentence imposed on him, and the severity of his
sentence relative to sentences imposed for other crimes in Utah.
And he argues that in analyzing his rehabilitative potential, the
district court should have considered the Board of Pardons’ role
in monitoring his behavior and progress toward rehabilitation, his
age, any ties between the crime and alcohol or drug addiction and
his treatment prospects, the existence of a criminal history of
violence, and the “Sentencing Commission’s guidelines.” (Citing
LeBeau, 2014 UT 39, ¶¶ 52, 54.)
¶98 However, as we made clear in State v. Martin, the
district court does not have an obligation to consider anything the
defendant does not raise. 2017 UT 63, ¶ 62, 423 P.3d 1254(“[W]hen a sentencing court commits an error that was not
objected to below, an appellant must . . . show the existence of
plain error or exceptional circumstances that would justify the
exercise of our review.”). Rather, the district court need only
consider the arguments and issues the defendant raises at
sentencing.
¶99 And as the court of appeals correctly observed, the
district court considered all of the evidence and arguments
Norton presented at sentencing. The district court acknowledged
letters describing Norton as a good person, as well as letters
describing Norton as a violent person. The court also
acknowledged Norton was going through a devastating divorce
but determined Norton’s behavior was still “way, way, way over
the line.” Further, the court noted that a factor of the sentence was
Norton’s “inability and unwillingness to follow the truth.”
Ultimately, the district court decided Norton was “entitled to
some mercy, but not what [his] lawyer [was] asking for.”
¶100 But Norton argues that the district court failed to
consider whether his sentence was proportional to sentences for
other similar crimes. And he contends that he raised this at
sentencing when he argued his conduct did not “rise to the level
of the kinds of egregious cases where we have individuals who
suffered significant loss of life or impairment.” But this is not
enough. In Martin, we held a similar sentencing issue was
unpreserved because counsel did not object to the analysis the
district court used or identify the other offenses the court should
take into consideration. Id. ¶¶ 64–66. Comparing sentences is
“daunting” and “certainly not a task that we can require our
district courts to perform without prompting or guidance from
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Opinion of the Court
counsel.” Id. ¶ 66. Norton did not ask the district court to compare
his sentence to sentences imposed for other offenses or identify
what those other offenses might be. Accordingly, this issue is
unpreserved.
¶101 The district court adequately addressed the arguments
Norton raised at sentencing. We affirm the court of appeals’
decision that the district court did not abuse its discretion by
declining to reduce the presumptive sentence on the basis of the
“interests of justice.”
IV. CUMULATIVE ERROR
¶102 Norton argues that the court of appeals erroneously
rejected his cumulative error argument. An appellate court will
reverse if “the cumulative effect of the several errors undermines
[the court’s] confidence . . . that a fair trial was had.” State v. Kohl,
2000 UT 35, ¶ 25, 999 P.2d 7 (second alteration in original)
(citation omitted). However, we have identified only one error in
Norton’s trial. A “single accumulable error cannot warrant
reversal under the cumulative error doctrine.” State v. Martinez-
Castellanos, 2018 UT 46, ¶ 48, 428 P.3d 1038. We thus reject his
cumulative error argument.
V. LEBEAU SHOULD BE OVERRULED
¶103 Although LeBeau v. State, 2014 UT 39, 337 P.3d 254 does
not determine the outcome in this case, I write this section
separately because I conclude LeBeau should be explicitly
overturned. The holding in LeBeau contradicts the applicable
statute’s plain language. And in so doing it takes the legislature’s
policy choice to give judges discretion to sentence below the
presumptive statutory tier and replaces it with a rigid, mandatory
framework that applies even when a judge imposes the
presumptive sentence.
¶104 I agree with Justice Lee’s dissent in LeBeau, but I will not
duplicate his analysis here. Instead, I add my own observations
and apply the law outlined in Eldridge v. Johndrow, 2015 UT 21, 345
P.3d 553, to argue that LeBeau should be overruled.
¶105 When considering whether precedent should be
overturned, we evaluate: “(1) the persuasiveness of the authority
and reasoning on which the precedent was originally based, and
(2) how firmly the precedent has become established in the law
since it was handed down.” Id. ¶ 22.
¶106 The first consideration—the persuasiveness of the
authority and reasoning on which LeBeau is based—counsels in
favor of overturning it. The opinion did not derive from prior
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authority. It was a fresh interpretation of a provision of Utah’s
aggravated kidnapping statute, which I conclude is incorrect.
Lebeau, 2014 UT 39, ¶ 25.
¶107 The LeBeau court interpreted the sentencing scheme
within the aggravated kidnapping statute.13 Id. ¶¶ 20–22; see also
UTAH CODE § 76-5-302(3), (4) (2014). Subsection 302(3) of the
statute establishes presumptive sentencing tiers for variations of
aggravated kidnapping. Subsection 302(4) then states in relevant
part,
If, when imposing a sentence under Subsection
(3)(a) or (b), a court finds that a lesser term than the
term described in Subsection (3)(a) or (b) is in the
interests of justice and states the reasons for this
finding on the record, the court may impose a
[lesser] term of imprisonment . . . .
UTAH CODE § 76-5-302(4) (2014).
¶108 Reading subsections 302(3) and (4) together, the LeBeau
court held that the district court was required to conduct “the
interests-of-justice analysis laid out in subsection (4).”14 Lebeau,
2014 UT 39, ¶ 21. And the LeBeau court defined the phrase
“interests of justice” by looking to Eighth Amendment
jurisprudence, see id. ¶¶ 38–41, and another provision of the
criminal code setting forth “general goals of Utah’s criminal
code.” Id. ¶ 34 (quoting UTAH CODE § 76-1-104 (2014)). These
sources led the court to conclude that an “interests-of-justice
analysis” required the sentencing court to consider a checklist of
particulars: (1) proportionality, including “the gravity of the
offense and the harshness of the penalty,” and “the sentence being
imposed [compared to] sentences imposed for other crimes in
Utah” and (2) the defendant’s capacity for rehabilitation,
__________________________________________________________
13 To be consistent with LeBeau v. State, 2014 UT 39, 337 P.3d
254, I cite the 2014 version of the statute.
14 The LeBeau court reasoned that because the provisions
within subsection 302(3) (establishing the presumptive sentencing
tiers for aggravated kidnapping) state that they are to be imposed
“except as provided in Subsection . . . (4)” (the “interests of
justice” provision), then courts must always conduct an interests
of justice analysis to determine whether subsection (4) applies.
LeBeau, 2014 UT 39, ¶ 21. And the court concluded that an
“interests of justice analysis” required a judge to consider specific
factors as described above, supra ¶ 97.
27
STATE v. NORTON
Opinion of the Court
including deference to the role of the Board of Pardons and
Parole, the defendant’s age at the time of the crime, the extent that
alcohol or drug addiction caused the offense, the presence of
violence in the defendant’s criminal history, relevant Sentencing
Commission guidelines, and “all relevant factors” to the
defendant’s rehabilitative potential. Id. ¶¶ 42–55.
¶109 But I find it unnecessary to go beyond the language of
the statute to determine its meaning. Subsection 302(4) is
straightforward. It directs that if the sentencing court finds it is “in
the interests of justice” to sentence a defendant to a “lesser term”
rather than the presumptive term, the court may do so if it states
the reasons for this finding on the record.
¶110 Two things seem clear from the plain language of this
statute. First, it applies only if “a court finds that a lesser term” is
in the interests of justice. Where, as here and in LeBeau, a judge
sentences a defendant to the presumptive term, subsection 302(4)
should not come into play.
¶111 And second, this provision is permissive, not
mandatory, and it does not require judges to consider a list of
particulars. It states that judges “may” sentence below the
presumptive sentencing tier if they determine it is in the “interests
of justice.” The sole intent is to give judges discretion to impose a
lesser term of imprisonment rather than making the presumptive
tier mandatory.
¶112 “May” is, of course, a permissive term. In this context it
means to “be permitted to” or to “be a possibility.” May, BLACK’S
LAW DICTIONARY (11th ed. 2019).
¶113 And the phrase “interests of justice” is merely a
“general placeholder for a principle of broad judicial discretion.”
LeBeau, 2014 UT 39, ¶ 87 (Lee, J., dissenting). The LeBeau majority
observed the many times that the phrase “interests of justice” can
be found in the civil code, criminal code, rules of evidence, and
rules of procedure. Id. ¶ 28. This reinforces my point. Various
statutes and rules invoke the “interests of justice” to signal that
judges have the discretion to consider whatever information is
before them and do what is fair, proper, or just under the
circumstances. See id. ¶ 90 (Lee, J., dissenting); see, e.g., UTAH CODE
§ 75-7-204(2)(b) (providing that a court “may entertain a
proceeding regarding any matter involving a trust if . . . the
interests of justice would be seriously impaired”); id. § 77-8a-
1(2)(d) (“When two or more defendants are jointly charged with
any offense, they shall be tried jointly unless the court in its
discretion on motion or otherwise orders separate trials consistent
28
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with the interests of justice.”); id. § 78B-1-136 (“It is the right of a
witness to be protected from irrelevant, improper or insulting
questions, and from harsh or insulting demeanor, to be detained
only so long as the interests of justice require it . . . .”).
¶114 However, LeBeau turns this statutory language on its
head. It transforms the grant of discretion inherent in the phrase
“interests of justice” into a prescribed analysis that judges must
undertake. And it requires judges to perform this analysis even
when they have applied the presumptive sentence. LeBeau, 2014
UT 39, ¶ 55. These mandates are not found in the statute’s
language.
¶115 In determining whether precedent should be
overturned, we also ask how firmly the precedent has become
established in the law since it was handed down. To do so, we
look to both the age of the precedent and the “extent to which
people’s reliance on the precedent would create injustice or
hardship if it were overturned.” Eldridge, 2015 UT 21, ¶¶ 22, 35.
Other relevant considerations are how well the precedent has
worked in practice and “whether the precedent has become
inconsistent with other principles of law.” Id. ¶ 40.
¶116 LeBeau was decided in 2014 and was not based on “any
significant precursors in Utah law.” Id. ¶ 34. Since that time, it
“has not been necessary to the outcome of many cases.” Id. ¶ 36.
In its six years of existence, LeBeau has been cited approximately
twenty-five times by this court, the court of appeals, and Utah’s
federal courts.
¶117 Prior to this case, this court has conducted a LeBeau
interests of justice analysis only one time in State v. Martin, 2017
UT 63, 423 P.3d 1254. There, we declined to reverse a district court
that had not undertaken a formal proportionality analysis on the
record as required by LeBeau. Id. ¶ 66. We recognized the
“daunting task” involved in undertaking a proportionality
analysis: “[I]t is certainly not a task that we can require our
district courts to perform without prompting or guidance from
counsel.” Id.
¶118 Our court of appeals has handled most of the cases
involving a LeBeau claim. Eighteen court of appeals opinions cite
LeBeau. One is this case, and nine others cite LeBeau for other
propositions—not the interests of justice analysis. That means
there have been eight court of appeals cases involving a LeBeau
interests of justice claim. The court of appeals has only once
concluded that LeBeau warranted a holding that a district court
abused its discretion. See State v. Jaramillo, 2016 UT App 70, ¶ 44,
29
STATE v. NORTON
Opinion of the Court
372 P.3d 34. In every other case, the court of appeals either
declined to conduct the LeBeau interests of justice analysis or
decided there was no abuse of discretion. See, e.g., State v. Alvarez,
2017 UT App 145, ¶ 4, 402 P.3d 191 (assuming “that the
sentencing court duly considered the proportionality of [the
defendant’s] sentence” because the defendant did not
demonstrate “that [the court’s] presumption of appropriate
sentencing consideration is inapplicable”); State v. Scott, 2017 UT
App 103, ¶ 13, 400 P.3d 1172 (presuming “that the court fully
considered all the information presented to it” and took into
account “the relevant factors in determining [the defendant’s]
sentence”); State v. Beagles, 2017 UT App 95, ¶ 9, 400 P.3d 1096(holding that the district court “balanced the aggravating and
mitigating factors” and that its sentencing decision was within its
discretion).
¶119 And the court of appeals has sharply criticized LeBeau.
In State v. Coombs, where a defendant raised an ineffective
assistance of counsel claim because his counsel had not argued at
sentencing that the district court should conduct the interests of
justice analysis required by LeBeau, the court critiqued LeBeau: “In
our view, LeBeau constitutes blatant policy-based ad hoc review of
legislative action not typically undertaken by the judicial branch.
We would hope that, given the appropriate opportunity, our
supreme court will revisit whether LeBeau’s approach should
continue.” 2019 UT App 7, ¶ 22 n.4, 438 P.3d 967 (citation
omitted). The court of appeals concluded, “We cannot read LeBeau
and Martin as removing from defense counsel the discretion not to
make certain arguments at sentencing. Every case is different and
defense counsel must retain wide discretion in determining what
arguments will best benefit a client under the totality of the
circumstances.” Id. ¶ 21 n.3 (citation omitted).
¶120 It appears that in the time since LeBeau was decided,
appellate courts have responded to it by applying it narrowly.
This suggests LeBeau’s mandates are not workable as written.15
¶121 On balance, the trouble with LeBeau is not so much its
mandate that judges consider the interests of justice before
imposing a sentence. After all, this is what judges already do.
They receive and consider any testimony, evidence, or
information that either party desires to present. UTAH CODE § 77-
__________________________________________________________
15 Without published opinions, it is more difficult to determine
how district courts have responded to its requirements.
30
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18-1(7). They give the defendant an opportunity to make a
statement and present any mitigating information. And they give
the prosecution a similar opportunity to present any information
“material to the imposition of sentence.” UTAH R. CRIM. P. 22(a).
They receive information about any victims of the offense. See
UTAH CODE § 77-38-4(1); see also id. § 77-18-1(5)(b)(i). They read
any materials that have been submitted, such as a presentence
report or letters. Id. § 77-18-1(5)(a)–(b). And defense counsel and
the prosecutor use their professional judgment to choose which
arguments to make and which information to highlight in support
of their respective sentencing positions. Judges consider all of this,
along with any applicable statutes and the sentencing guidelines,
and impose the sentence they deem to be just under all the
circumstances. State v. Russell, 791 P.2d 188, 192 (Utah 1990).
¶122 Rather, the more serious problem with LeBeau is that
instead of reading the “interests of justice” as a grant of discretion,
the LeBeau court concluded this phrase requires judges to go
through a prescribed checklist of factors at sentencing, and that
judges must do so whether they impose a sentence less than the
presumptive range or within it.
¶123 This transforms a particular legislative policy decision
into something else entirely. Here and in similarly worded
statutes, the legislature has determined that Utah judges should
have the discretion to sentence below the presumptive statutory
term when they determine it is in the interests of justice—in other
words, fair and just—to do so. This is a significant policy choice,
which stands in contrast to other jurisdictions that have chosen to
enact statutory mandatory minimum sentencing schemes that are
binding upon judges in all but narrow circumstances. See, e.g., 18
U.S.C. § 3553(e) (granting federal sentencing court authority to
impose sentence below the statutory minimum only upon a
government motion stating that the defendant gave “substantial
assistance” in the investigation or prosecution of another person
who has committed an offense); id. § 3553(f) (requiring a court to
sentence without regard to a statutory minimum sentence when a
defendant meets specific criteria). Instead of observing this
fundamental aspect of the sentencing scheme enacted by the
legislature, LeBeau transforms this general grant of discretion into
something detailed and specific, which is not found in the text of
the relevant statutes.
¶124 Because I advocate for LeBeau to be overturned even
though it does not determine the result in this case, the
concurrence asserts that my analysis is an “act of judicial
overreach.” See infra ¶ 130. I agree with the concurrence that the
31
STATE v. NORTON
DURRANT, C.J., concurring in part and concurring in the judgment
doctrine of stare decisis is deeply rooted in our law. We should be
extremely reluctant to overturn precedent. And generally, that
means we will not revisit precedent when it does not dictate our
holding in a particular case.
¶125 But I conclude that the fact that LeBeau does not govern
here—indeed, the fact that it “has not been necessary to the
outcome of many cases,” Eldridge, 2015 UT 21, ¶ 36—indicates that
it has not become firmly “established in the law since it was
handed down,” id. ¶ 22. This, along with the court of appeals’
criticism of LeBeau and explicit request that this court “revisit
whether LeBeau’s approach should continue,” Coombs, 2019 UT
App 7, ¶ 22 n.4, suggests that LeBeau has not been workable in
practice and weighs in favor of overruling it.
¶126 For these reasons, I am persuaded that this is one of the
rare occasions when we should overturn precedent.
CONCLUSION
¶127 We affirm all but one of the court of appeals’
determinations in this case. We conclude that any error in the jury
instructions for aggravated sexual assault and the underlying
offenses of rape and forcible sexual abuse did not prejudice
Norton. Further, the district court was not required to instruct on
any of the lesser included offenses Norton requested, except for
sexual battery. And we determine that at sentencing, the district
court did not err in imposing a punishment of fifteen years to life
for aggravated sexual assault and properly considered all of the
arguments and evidence before it.
¶128 With regard to our holding that the district court erred
in not instructing the jury on sexual battery as a lesser included
offense of the aggravated sexual assault charge based on forcible
sexual abuse, we reverse the conviction and remand to the district
court for a new trial.
CHIEF JUSTICE DURRANT, concurring in part and concurring in
the judgment:
¶129 Writing for the majority, Justice Petersen does an able
and thorough job of addressing each of Mr. Norton’s challenges to
his conviction. And she appropriately dismisses his LeBeau
challenge to his sentence as unpreserved. So far so good. We are
therefore pleased to concur in the analysis and conclusions she
sets forth in parts I through IV of her opinion. But then, she takes
32
Cite as: 2020 UT 46DURRANT, C.J., concurring in part and concurring in the judgment
a surprising step. She goes on to address the question of whether
the rule established in LeBeau16 should be overturned. This,
despite the fact that the resolution of this question makes not one
wit of difference to Mr. Norton’s case. Justice Petersen explicitly
acknowledges as much, writing that LeBeau “does not determine
the outcome in this case.”17 But the fact that this is done in plain
sight makes it no less an act of judicial overreach.
¶130 And Justice Petersen further flouts judicial restraint by
not just reaching the issue unnecessarily, but then advocating to
overturn LeBeau, a significant case that, whether right or wrong, is
established precedent.18 The doctrine of stare decisis is deeply
rooted in our law. There are reasons why we respect precedent.
There are reasons why we are circumspect in overturning it.
Precedent promotes predictability and stability in the incremental
development of the law. It promotes faith in our judicial system. It
underpins and informs virtually every decision we make as
judges. This is not to say it is wholly inviolate. We, of course, do
on occasion overturn a case. But we do not do it lightly. We do it
reluctantly, cautiously, and with compelling reasons. And we
should never do it gratuitously as Justice Petersen suggests we do
here. For these reasons, we decline to join in part V of Justice
Petersen’s opinion.
__________________________________________________________
16 LeBeau v. State, 2014 UT 39, 337 P.3d 254.
17 Supra ¶ 105.
18 See State v. Rowan, 2017 UT 88, ¶ 24, 416 P.3d 566 (Himonas,
J., concurring) (explaining, in a concurrence joined by a majority
of the court, that “our court declines to revisit established
precedent unnecessarily”).
33