State v. Norton

2018 UT App 82THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LONNIE NORTON,
Appellant.
Opinion
No. 20150302-CA
Filed May 3, 2018
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 131400015
Lori J. Seppi, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1 Lonnie Norton appeals his convictions arising from
events that occurred over one night in November 2012 when he
broke into his parents-in-law’s house, kidnapped his estranged
wife (Wife), and sexually assaulted her. Norton alleges several
errors related to the jury instructions and sentencing. We affirm.
BACKGROUND
¶2 In October 2012, Wife left Norton, her husband of over
twenty years, taking their children with her. After staying in a
women’s shelter for several days and after a protective order
against Norton went into effect, Wife and the children moved
State v. Norton
into her parents’ then-vacant house. The protective order
permitted Norton to have supervised visits with the children
and to communicate with Wife via email regarding “parent time,
counseling, and school attendance.”
¶3 On the date when the events leading to Norton’s
convictions occurred, Norton had overnight supervised parent
time with the children in the marital home. Wife claimed that, on
that night, Norton left the children and broke into her parents’
house, after which he, among other things, kidnapped and raped
her at gunpoint. The State charged Norton with aggravated
kidnapping, a first degree felony; three counts of aggravated
sexual assault, all first degree felonies; aggravated burglary, a
first degree felony; aggravated assault, a third degree felony;
violation of a protective order, a class A misdemeanor; and
damage to or interruption of a communication device, a class B
misdemeanor.
¶4 The case proceeded to a jury trial. Norton and Wife each
testified about the events of that night and agreed on the
following basic facts. It was snowing. After the children went to
sleep, Norton retrieved Wife from her parents’ house and drove
the two to Fort Douglas on the University of Utah campus.
Norton, who worked for the University, accessed a vacant office
building with a key he had by virtue of his employment. Once
inside the building, the parties had sexual intercourse in an
office, after which Wife rinsed off in a bathroom across the hall.
Norton then drove Wife first to the marital home to check on the
children and then back to her parents’ house. Aside from these
facts, the parties’ accounts differed significantly.
Wife’s Account
¶5 Wife testified that, on the night in question, she awoke in
the middle of the night to “a loud bang” downstairs in her
parents’ house, which she “figured . . . was [from] the dryer”
that she had previously moved in front of a door to block entry
from the basement’s outside entrance. Wife grabbed her phone
20150302-CA 2 2018 UT App 82State v. Norton
and dialed 911 when Norton appeared “at the end of [her] bed.”
He punched her face with a closed fist, grabbed the phone, and
duct-taped her head. She passed out, and when she regained
consciousness, she was riding in Norton’s car with him. She
claimed that Norton “had a gun in his lap” and pointed it at her
as she tried to open the car door. She realized that they were
driving “up to the Fort Douglas area” near Norton’s office at the
University of Utah. After arriving at a building in the Fort
Douglas area, Norton parked the car and told Wife that they
were going to enter the building and that she “needed to be
quiet or he would shoot [her].” Because she did not have any
shoes on, Norton gave her a pair of his shoes and then led Wife
toward the building and unlocked the entrance door.
¶6 Wife testified that Norton initially took her to a bathroom,
where he “ripped the duct tape off [her] head” and began
talking to her about their marriage, going to counseling, and
getting back together. Wife rejected Norton’s suggestions, and
after talking for approximately twenty minutes, Norton told
Wife “to take [her] shirt off.” When she initially refused, he
“pointed the gun at [her]” and again ordered her to take off her
shirt. She complied. He then “squeezed [her] breasts” and led
her to an office across the hall. Once there, he told her to “take
off [her] pants.” Again, she refused, and again he “pointed the
gun at [her],” and she complied.
¶7 While Wife was undressing, Norton also undressed.
Norton then “popped the magazine out of the gun” and put the
gun pieces in a drawer. He “told [her] that [they] were going [to]
have sex.” She again told him, “no,” which Norton dismissed,
and Wife asked if he was “going to rape [her].” Norton replied,
“You can’t rape somebody that you’re married to,” and he laid
down on the floor and pulled Wife on top of him. He then
vaginally raped her. Wife testified that she made no effort to
participate. She testified that at one point she grabbed his penis
“really hard,” but that because she has rheumatoid arthritis, she
did not “know how hard” the squeeze was. Norton responded
20150302-CA 3 2018 UT App 82State v. Norton
by grabbing “both of [her] hands and . . . put[ting] them over
[her] head in one of his hands.”
¶8 Wife testified that afterward Norton took her back to the
bathroom and ordered her “to get in the bathtub and rinse
[herself] off.” She stated that her “hands were shaking really
bad” and that Norton told her that she was not “doing a good
enough job,” at which point he “shoved his fingers up in [her
vagina] and tried to rinse himself out.” Wife dried herself off
with some paper towels, and they both got dressed.
¶9 Norton, having retrieved the gun, then told Wife to sit
down on a chair. While he initially suggested the two reconcile,
the conversation took a turn when he told her that “he was going
[to] kill himself,” and he put the gun to his head. He then
pointed the gun at Wife and said, “[M]aybe I’ll kill you and then
I’ll kill myself.” Norton “went back and forth” about shooting
himself and Wife for a few minutes, after which Wife “got really
mad” and “[t]old him to go ahead and shoot himself.” At that
point, “it just ended,” and Norton “took [Wife] back out into the
car.” Norton then drove them to their marital home and, after
insisting that Wife “couldn’t tell anybody” what had happened
and that she needed to “make up some sort of story” to tell the
children about how she hurt herself, he drove her back to her
parents’ house. Once there, Norton attempted to fix both a
locked gate and the basement door through which he had
entered earlier. He again told her not to tell anybody what had
happened, and she told him she would not tell. After Norton
left, Wife called the police, and an officer took her to the hospital.
Norton’s Account
¶10 Norton testified at trial that Wife willingly accompanied
him to the Fort Douglas office building and that she initiated the
sexual conduct that occurred. He claimed that Wife had “told
[him] to come over” to her parents’ house after their children
had gone to sleep and that, after missing her call at
approximately two o’clock in the morning, he drove to the house
20150302-CA 4 2018 UT App 82State v. Norton
and parked in front. Though it was snowing, Norton testified
that, “[a]fter a couple of minutes,” Wife came outside “in
stocking feet” and got into the car with him. He gave her some
Reeboks to wear. He claimed that as they drove, Wife suggested
going to his office to talk. Norton thought that rather than his
office, “it might not be a bad idea to . . . go up to one of the
buildings that’s part of [his] college up in the Fort Douglas area.”
Accordingly, he parked behind a building there and unlocked
the entrance to a unit that used to be an officer’s quarters and
was recently vacated by its tenant.
¶11 Norton testified that, once inside, the parties went into an
office, sat down, and began talking about marriage counseling
and possible reconciliation. Norton claimed that as they were
reminiscing about when they first married, Wife went over “and
sat on [his] lap and put her arms around [him]” and they began
kissing. He testified that they eventually moved to the floor,
undressed, and that Wife “climbed on top of [him]” and had sex
with him.
¶12 Norton testified that afterward they went into the
bathroom and that Wife got in the bathtub. Norton said that
normally they would shower, but that because the water in the
building was cold, he told Wife that he was not going to shower.
Instead, he suggested to Wife that she “just rinse off,” and he
turned on the knob for her. He claimed that after Wife rinsed
and dried herself off with paper towels he provided, they then
went back into the office and dressed.
¶13 Norton testified that, at this point, the parties resumed
their conversation about reconciliation. He stated that Wife
indicated that she “didn’t really want to reconcile,” which
prompted him to say that he thought it would be fair for him to
have joint custody of their children. Wife responded that she did
not want joint custody, and she became angry—calling him
names—when he said his attorney told him that he would be
able to get joint custody. At one point during the exchange, Wife
20150302-CA 5 2018 UT App 82State v. Norton
slapped Norton, and he claimed that he backhanded her “pretty
hard” in response. He testified that Wife then tried to hit him
again, and so he “grabbed her hands and [they] rastled for a
minute,” which caused Wife to start crying. Norton stated that
Wife then went into the bathroom, shut the door, and refused to
come out for about ten minutes.
¶14 When Wife came out, Norton and Wife left the building
and got back into the car. Norton testified that Wife asked to
check on their children at the marital home, which they did.
Norton then drove Wife to her parents’ house. When they
arrived, they discovered the front door was locked. Norton
testified that he then went around to the back door, and along
the way opened a locked gate by pushing it “real hard.” He then
went and “pushed” the laundry room back door open and
walked through the house to let Wife in around front.
¶15 Norton testified that, once inside, he again tried to talk to
Wife about joint custody, which angered Wife. Wife then
threatened to call the police and accuse him of breaking into the
house and beating her up. Norton “got scared” and left.
The Jury Instructions
¶16 The State charged Norton with eight offenses of varying
severity related to the events described above, specifically one
count each of aggravated burglary, aggravated kidnapping,
aggravated assault, violation of a protective order, and damage
to or interruption of a communication device. The State also
charged him with three counts of aggravated sexual assault, and
the court specified which episode of abuse each count referred to
in its instructions, referring to them as Count 2, Count 3, and
Count 4. Count 2 concerned the “allegation of the touching of
[Wife’s] breast”; Count 3 concerned “the allegation of sexual
intercourse”; and Count 4 concerned “the penetration of [Wife’s]
vagina by [Norton’s] fingers.”
20150302-CA 6 2018 UT App 82State v. Norton
¶17 Defense counsel requested lesser included offense
instructions for the aggravated burglary charge, the aggravated
kidnapping charge, and all counts of the aggravated sexual
assault charges. The court permitted only one lesser included
offense instruction for each count. For aggravated burglary, the
court instructed on the lesser included offense of burglary, but it
declined to instruct on both aggravated assault and assault. For
the aggravated kidnapping charge, the court instructed on the
lesser included offense of kidnapping, but it declined to instruct
on unlawful detention. And for the aggravated sexual assault
charges, the court permitted lesser included offense instructions
related to each particular act. For Counts 2 and 4, it permitted
the lesser included offense instruction of forcible sexual abuse.
For Count 3, it instructed on rape. It declined counsel’s request
to instruct on sexual battery for those counts.
The Verdict
¶18 The jury convicted Norton of two of the three charged
counts of aggravated sexual assault—the counts pertaining to
sexual intercourse and Norton inserting his fingers into Wife’s
vagina—and acquitted him of the aggravated sexual assault
charge related to touching Wife’s breasts. In addition, the jury
convicted Norton of the lesser offense of kidnapping, the lesser
offense of burglary, violation of a protective order, and a class B
misdemeanor assault. The jury acquitted Norton of the damage
to or interruption of a communication device count.
Sentencing: The Three Tiers
¶19 The court instructed the jury that “[a] person commits
aggravated sexual assault” if
in the course of a rape or attempted rape or forcible
sexual abuse, or attempted forcible sexual abuse, a
person uses, or threatens the victim with the use of
a dangerous weapon or compels, or attempts to
compel, the victim to submit by threat of
20150302-CA 7 2018 UT App 82State v. Norton
kidnaping, death, or serious bodily injury to be
inflicted imminently.
(Quotation simplified.) Thus, the jury was instructed that it
could convict Norton of aggravated sexual assault based upon
the underlying acts of a rape, an attempted rape, forcible sexual
abuse, or an attempted forcible sexual abuse. However, at trial,
no special verdict form was requested or given. As a result,
although the jury convicted Norton of two aggravated sexual
assault charges, it did not specify on which underlying offenses
it relied to convict Norton of those charges.
¶20 During sentencing, defense counsel requested that the
trial court sentence Norton under the lowest tier of the
aggravated sexual assault sentencing scheme—the six-years-to-
life tier.1 Counsel explained to the court that because there was
not a special verdict form, it was inappropriate to sentence
Norton according to the highest tier—the fifteen-years-to-life
tier. Counsel asserted that the jury instruction “allow[ed] for the
jury to find the defendant guilty . . . for the offense based on an
attempted forcible sexual abuse,” and contended that “there’s no
indication or evidence that the jury made a finding other than
that.” He also contended that, because there was no special
1. Unless otherwise indicated, we cite the version of the relevant
statutes in effect at the time of Norton’s offenses. The aggravated
sexual assault statute creates a three-tiered sentencing scheme,
which is dependent upon the underlying offense for which
conviction is entered. Utah Code Ann. § 76-5-405(2) (LexisNexis
2012). If the underlying sexual offense is rape or forcible sexual
abuse (as pertinent here), the presumptive prison sentence is
fifteen years to life. Id. § 76-5-405(2)(a)(i). If the underlying
offense is attempted rape, the presumptive prison 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 prison
sentence is six years to life. Id. § 76-5-405(2)(c)(i).
20150302-CA 8 2018 UT App 82State v. Norton
verdict form, it would violate Norton’s right to a jury trial to find
at sentencing that he committed a completed act under the
highest tier where the jury could find from the evidence that
Norton committed attempted forcible sexual abuse. In response,
the State argued that Norton should be sentenced under the
highest tier because “there was never any evidence that this was
an attempted forcible sex abuse or an attempted rape. It was all
evidence that it was an actual rape and actual forcible sex
abuse.”
¶21 Although the court determined that defense counsel’s
argument had some merit, the court ultimately agreed with the
State, taking a “common sense approach” and determining that
although the instructions included the offenses of attempted
rape and attempted forcible sexual abuse, “[t]he evidence
presented is that there was an actual act of sexual intercourse”
and “an actual . . . insertion [in her vagina] by his hand.”
Accordingly, the court ruled that it was proper to sentence him
at the highest tier because the “evidence as presented” related to
actual, not attempted, conduct and “there was never an
argument made that this was an attempted rape or attempted
forcible sexual abuse.”
Sentencing: The Interests of Justice Analysis
¶22 Once the court determined that it was proper to sentence
Norton at the highest tier for the aggravated sexual assault
convictions, defense counsel then requested that the court
impose terms of six-years-to-life on those counts and to run the
sentences concurrently.2 In requesting the lesser sentence,
2. In addition to providing three sentencing tiers, the aggravated
sexual assault statute provides that a court may impose less than
the presumptive sentence if the court “finds that a lesser term
than the term described” as presumptive “is in the interests of
justice and states the reasons for this finding on the record.” Id.(continued…)
20150302-CA 9 2018 UT App 82State v. Norton
defense counsel identified several facts which, in his opinion,
merited a lesser sentence. Norton also made a statement,
expressing his regret at having violated the protective order and
for having hurt Wife and his family and stating a desire to move
forward personally and professionally to “rebuild [his] life.” In
response, the State requested that the court impose the
presumptive sentences of fifteen years to life on both of the
aggravated sexual assault counts and that the sentences run
consecutively. The State contended that a lesser sentence on
those counts made “no sense,” particularly where Norton had
not accepted responsibility for what he had done and the crimes
were “terrible.” The court also had the benefit of the Presentence
Investigation Report (the PSI) prepared by Adult Probation &
Parole, which recommended imprisonment according to the
statutory terms and indicated that “there are not enough
mitigating circumstances to override the serious nature of the
current offense.”
¶23 The court sentenced Norton to the presumptive fifteen
years to life on each of the aggravated sexual assault counts. It
recognized that Norton had “a good past in many, many ways”
but that “one of the real difficulties” in the case was Norton’s
“inability and unwillingness to follow the truth,” stating that the
court and the jury did not believe the events happened “at all the
way [Norton said] they happened.” The court also stated that
Norton’s conduct “went[] way, way, way over the line” and was
of a kind “that simply cannot be accepted in our society,” and
that while it recognized a fifteen years to life sentence would be
lengthy, especially given Norton’s age, the extreme and harmful
(…continued)
§ 76-5-405(3)(a). For offenses falling under the highest tier of
sentencing—fifteen years to life—the court may find it is in the
interests of justice to impose a lesser prison sentence of either
“10 years and which may be for life,” or “six years and which
may be for life.” Id.
20150302-CA 10 2018 UT App 82State v. Norton
nature of Norton’s conduct merited the presumptive sentence.
Nonetheless, the court stated that Norton was “entitled to some
mercy” in that it did not believe that the sentences ought to be
consecutive. Accordingly, on the aggravated sexual assault
counts, the court sentenced him to two terms of fifteen years to
life, with the sentences to run concurrently.
¶24 Norton timely appealed from the court’s judgment,
sentence, and commitment.
ISSUES AND STANDARDS OF REVIEW
¶25 Norton first argues that the court erred by giving
instructions of aggravated sexual assault and its lesser included
offenses that did not properly inform the jury of the mens rea
that applies to the nonconsent element. “Generally, whether a
jury instruction correctly states the law presents a question of
law which we review for correctness,” and we “will affirm when
the instructions taken as a whole fairly instruct the jury on the
law applicable to the case.” State v. Moore, 2015 UT App 112, ¶ 4,
349 P.3d 797 (quotation simplified).
¶26 Norton next argues that the court erred by refusing to
give requested lesser included offense instructions on the
aggravated sexual assault, aggravated kidnapping, and
aggravated burglary counts. “A trial court’s refusal to grant a
lesser included offense instruction is a question of law, which we
review for correctness.” State v. Reece, 2015 UT 45, ¶ 16, 349 P.3d
712 (quotation simplified).
¶27 Finally, Norton asserts two claims of error concerning his
sentence. First, he argues that the court violated his right to due
process and his right to trial by jury when it sentenced him
under the highest sentencing tier on the aggravated sexual
assault counts for which he was convicted. “[C]onstitutional
questions present questions of law that we review for
correctness without deference to the lower court’s ruling.” State
20150302-CA 11 2018 UT App 82State v. Norton
v. Candedo, 2010 UT 32, ¶ 7, 232 P.3d 1008. Second, Norton
argues that the court abused its discretion when it imposed two
terms of fifteen years to life on the two aggravated sexual assault
convictions “without conducting the statutorily mandated
interests-of-justice analysis.” We review a trial court’s sentencing
decision for an abuse of discretion. See LeBeau v. State, 2014 UT
39, ¶ 16, 337 P.3d 254 (“An appellate court will . . . only set aside
a sentence if the sentence represents an abuse of discretion, if the
district court fails to consider all legally relevant factors, or if the
sentence imposed is clearly excessive.” (quotation simplified)).
ANALYSIS
I. Jury Instructions
¶28 Norton first argues that the instructions on the
aggravated sexual assault charges and the associated lesser
included offenses of rape and forcible sexual abuse misstated the
law. Norton asserts that under State v. Barela, 2015 UT 22, 349
P.3d 676, the instructions “failed to instruct the jury that it could
not convict unless it found that Norton acted with the requisite
mens rea as to [Wife’s] nonconsent” and that, had the jury been
properly instructed, there is a reasonable probability that it
would have acquitted him of those charges.
¶29 “A mens rea element is an essential element of an
offense,” and as a general rule, failure to accurately instruct on it
is error. See State v. Bird, 2015 UT 7, ¶ 14, 345 P.3d 1141(quotation simplified). The crime of rape requires that a
defendant has the “requisite mens rea as to the victim’s
nonconsent.”3 Barela, 2015 UT 22, ¶ 26.
3. The State does not contest that this principle also applies to
other sexual offenses requiring proof of a victim’s nonconsent.
Given the State’s position and our conclusion that Norton was
(continued…)
20150302-CA 12 2018 UT App 82State v. Norton
¶30 Norton concedes that this issue is unpreserved and
requests that we review it under the doctrines of manifest
injustice, plain error, or ineffective assistance of counsel. To
establish ineffective assistance of counsel, Norton must show
both that his trial counsel’s performance was objectively
deficient and that counsel’s deficient performance prejudiced
him. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984). To
establish manifest injustice4 and plain error, Norton must
demonstrate the existence of an “obvious, prejudicial error.”
State v. Bell, 2016 UT App 157, ¶ 8, 380 P.3d 11. The prejudice
standards for ineffective assistance and plain error are the same.
State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699. Norton must
demonstrate that, but for the errors, “there is a reasonable
probability that . . . the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” See Strickland, 466 U.S. at
694. And because Norton must meet all the elements of each test
to prevail, we may dispose of both claims on prejudice alone
without analyzing the other elements. See Archuleta v. Galetka,
2011 UT 73, ¶ 41, 267 P.3d 232.
¶31 The court instructed the jury that it could not find Norton
guilty unless the State proved “a mental state as to each of
the . . . counts charged.” The court also instructed the jury as to
(…continued)
not prejudiced by the instructions, “we assume without deciding
that the principle applies more broadly” to all of the sexual
offenses at issue here. See State v. Reigelsperger, 2017 UT App 101,
¶ 73 n.8, 400 P.3d 1127.
4. Manifest injustice is generally synonymous with the plain
error standard. See State v. Pullman, 2013 UT App 168, ¶ 5, 306
P.3d 827. Norton has not argued in this case that it is not.
Therefore, we review his challenges under the same standard.
20150302-CA 13 2018 UT App 82State v. Norton
the meaning of applicable mental states.5 As to the aggravated
sexual assault charges, the court instructed that the jury could
find Norton guilty of aggravated sexual assault if it found
beyond a reasonable doubt that
1. On or about the date charged in the Information
[Norton] raped or attempted to rape or committed
forcible sexual abuse or attempted forcible sexual
abuse against [Wife]; 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 [Wife] with the use of
a dangerous weapon; or
(b) compelled, or attempted to compel,
[Wife] to submit to rape or forcible sexual
abuse by threat of kidnaping, death, or
serious bodily injury to be inflicted
imminently; and
3. That [Norton] did such acts knowingly or
intentionally.
¶32 The court then provided separate instructions for rape
and forcible sexual abuse. As to rape, it instructed that the jury
5. The court instructed that “intentionally” meant “[a] person
acts . . . [with a] conscious objective . . . to cause a certain result
or to engage in certain conduct,” and it instructed that a person
acts “knowingly” when the person “is aware of the nature of his
conduct,” “is aware of the particular circumstances surrounding
his conduct,” or “is aware that his conduct is reasonably certain
to cause the result.” See generally Utah Code Ann. § 76-2-103(LexisNexis 2012).
20150302-CA 14 2018 UT App 82State v. Norton
could convict Norton if it found beyond a reasonable doubt that,
“[Norton] had sexual intercourse with [Wife]”; that “such
conduct was without the consent of [Wife]”; and that “said
conduct was done intentionally or knowingly.” For forcible
sexual abuse, it instructed that the jury could convict Norton if it
found beyond a reasonable doubt that
1. On or about the date charged [Norton] touched
the anus, buttocks, breasts, or any part of the
genitals of [Wife]; and
2. That such conduct was done with the intent to
either
(a) cause substantial emotional or bodily
pain to [Wife], or
(b) arouse or gratify the sexual desires of
any person; and without the consent of
[Wife]; and
3. That said conduct was done intentionally or
knowingly.
¶33 Assuming, without deciding, that these instructions were
erroneous under Barela and that counsel performed deficiently
by not objecting to them, we conclude that Norton has not
demonstrated that he suffered prejudice.
¶34 “A reviewing court attempting to determine whether the
omission of an element from a jury instruction is harmless error
‘asks whether the record contains evidence that could rationally
lead to a contrary finding with respect to the omitted element.’”
State v. Ochoa, 2014 UT App 296, ¶ 5, 341 P.3d 942 (quoting Neder
v. United States, 527 U.S. 1, 19 (1999)). For example, in State v.
Barela, the defendant, who was convicted of rape, argued that
the jury instruction improperly omitted the mens rea as to the
issue of nonconsent. 2015 UT 22, ¶¶ 20, 26, 349 P.3d 676. After
agreeing with the defendant that the jury instruction was
20150302-CA 15 2018 UT App 82State v. Norton
incorrect, id. ¶ 26, our supreme court proceeded to determine
whether the omission was harmful, id. ¶¶ 28–32. The supreme
court analyzed the issue by reviewing the record evidence and
asking 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.
See id. The court determined that there was such a basis. The
defendant had contended during trial that the sexual conduct
had been consensual and initiated by the victim, id. ¶¶ 10, 29,
while the victim claimed that the defendant had abruptly
instigated and perpetrated the intercourse without her consent,
id. ¶¶ 6–7, 29. Nonetheless, the victim’s account contained some
ambiguity surrounding the issue of her consent—she recounted
that she “froze” during the intercourse, “neither actively
participating in sex nor speaking any words,” and otherwise
expressed no other reaction. Id. ¶ 29 (quotation simplified). The
supreme court determined that, had the jury been properly
instructed, this evidence could have supported a reasonable
determination that the defendant had mistaken the victim’s
reaction for consent. Id. ¶ 28. On that basis, the court reversed.
Id. ¶ 32.
¶35 Here, the jury convicted Norton of two counts of
aggravated sexual assault based upon vaginal intercourse and
the sexual touching that occurred afterward in the bathroom.
During trial, the parties presented the jury with two vastly
differing versions of the events as to the element of consent. See
supra ¶¶ 5–15. Wife testified that Norton forced her to submit to
the sexual contact that occurred by threatening her with a gun
when she refused to comply. Norton, on the other hand, testified
that the intercourse was entirely consensual—that Wife, in fact,
had initiated it—and, by his account, that the sexual touching in
the bathroom did not occur at all.
¶36 While we cannot know precisely how the jury processed
the two accounts, what we do know from the jury’s decision is
that it concluded that Norton sexually assaulted Wife at
20150302-CA 16 2018 UT App 82State v. Norton
gunpoint after breaking into her parents’ house and kidnapping
her, and despite her repeated expressions of nonconsent. See
Barela, 2015 UT 22, ¶ 30 (using the jury’s verdict to explain what
elements the jury must have found). Norton must therefore
demonstrate that, had the trial court properly instructed the jury,
there is a reasonable likelihood that the verdict would have been
different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). To
meet this burden, he must at least show that there is some
rational basis in the evidence from which the jury could have
concluded that, despite Wife’s nonconsent and Norton’s threats
in the face of her protests, Norton nevertheless did not have the
instructed mental state—intentional or knowing—as to her
nonconsent. See Barela, 2015 UT 22, ¶¶ 26, 28–32; Ochoa, 2014 UT
App 296, ¶¶ 6–7.
¶37 There is no such rational basis in the evidence. Norton
provided no evidence to suggest that, despite threatening Wife
under aggravating circumstances to force her compliance, he
might have been mistaken about Wife’s consent as to either
instance of sexual assault; his testimony was that one incident
was consensual, that the other did not occur, and that he did not
use a gun or threaten Wife. Likewise, Wife provided no evidence
from which a jury could reasonably find that Norton was
mistaken as to her nonconsent. She testified that when she
verbally expressed her nonconsent, he threatened her with a gun
and thereafter ordered and physically forced her to comply with
his demands, including the sexual touching that occurred in the
bathroom.
¶38 Norton points to Wife’s testimony that during intercourse
she squeezed his penis, arguing it as a “scenario in which [he]
may have mistakenly believed she consented,” and one
sufficient to provide the jury a rational basis from which to
determine he did not have the requisite mental state. But as we
recently observed in State v. Reigelsperger, 2017 UT App 101, 400
P.3d 1127, any actions on the part of the victim of alleged
“cooperation cannot be viewed in a vacuum” but must instead
20150302-CA 17 2018 UT App 82State v. Norton
be viewed within the larger context in which they occur. Id. ¶ 85;
see Barela, 2015 UT 22, ¶ 39 (explaining that “[t]o determine
whether a victim has truly consented, the factfinder must pay
close attention to the verbal and nonverbal cues given by the
victim and to a wide range of other elements of context”).
Indeed, “[w]hen refusals, rejections, or resistance are met with
disregard, hostility, and commands to submit, any limited
cooperation that immediately follows cannot be said, without
more, to constitute consent.” Reigelsperger, 2017 UT App 101,
¶ 85.
¶39 Even if squeezing Norton’s penis could have somehow in
isolation been interpreted by Norton as indicative of Wife’s
willing participation, the action occurred within the larger
context of Norton breaking into his parents-in-law’s house in the
middle of the night, kidnapping Wife, threatening her,
informing her that they were going to have intercourse after she
asked him if he was going to rape her, and disregarding her
repeated verbal refusals. See id. Furthermore, Wife also testified
that after she squeezed his penis, Norton “grabbed both of [her]
hands and just put them over [her] head in one of his hands,”
and even defense counsel during trial characterized Wife’s
action as one of protest, not participation.
¶40 Thus, there is no rational basis in the evidence to support
a jury finding that Norton could have been mistaken about
Wife’s nonconsent. See State v. Barela, 2015 UT 22, ¶¶ 29–32, 349
P.3d 676. Accordingly, even if the instructions regarding the
mens rea applicable to the element of nonconsent were
erroneous, Norton has not demonstrated that he was harmed by
the mistake. His claims of ineffective assistance of counsel,
manifest injustice, and plain error on the basis of the mens rea
instructions therefore fail. See Archuleta v. Galetka, 2011 UT 73,
¶ 41, 267 P.3d 232.
20150302-CA 18 2018 UT App 82State v. Norton
II. Lesser Included Offense Instructions
¶41 Norton next argues that the trial court erred when it
refused to instruct on his requested lesser included offenses.
Specifically, he argues that the court erred when it refused to
instruct the jury on (A) sexual battery as the lesser included
offense of aggravated sexual assault, (B) unlawful detention as
the lesser included offense of aggravated kidnapping, and
(C) aggravated assault and assault as the lesser included offenses
of aggravated burglary.
¶42 “A defendant’s request for a lesser included offense
instruction is evaluated under the evidence-based standard”
found in Utah Code section 76-1-402. See State v. Campbell, 2013
UT App 23, ¶ 5, 295 P.3d 722 (quotation simplified). We apply a
two-part test to determine whether a trial court must give a
requested instruction. First, we determine under section 76-1-
402(3) whether the lesser offense is included in the greater
offense. Most often, this will require analyzing whether “some of
their statutory elements overlap” and whether “the evidence at
the trial of the greater offense includes proof of some or all of
those overlapping elements.” State v. Baker, 671 P.2d 152, 158–59
(Utah 1983); see also Utah Code Ann. § 76-1-402(3)(a) (LexisNexis
2012); State v. Powell, 2007 UT 9, ¶¶ 24–25, 154 P.3d 788(explaining that a defendant’s entitlement to a lesser included
offense instruction “depend[s] on whether there exists some
overlap in the statutory elements of allegedly included offenses
and whether the same facts tend to prove elements of more than
one statutory offense” (quotation simplified)).
¶43 Second, we determine under section 76-1-402(4) whether
the evidence provides “a rational basis for a verdict acquitting
the defendant of the offense charged and convicting him of the
included offense.” Utah Code Ann. § 76-1-402(4). In so doing, 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
20150302-CA 19 2018 UT App 82State v. Norton
most favorable to the defendant requesting the instruction,”
Powell, 2007 UT 9, ¶ 27. Both parts of the test must be met
“before the trial court must instruct the jury” regarding the
lesser included offense. Baker, 671 P.2d at 159.
¶44 We address each requested lesser included offense
instruction below.
A. Sexual Battery
¶45 Norton requested lesser included offense instructions on
rape, forcible sexual abuse, and sexual battery for Counts 3 and
4—the aggravated sexual assault charges. The court instructed
only rape as the lesser included offense for Count 3, and it
instructed only forcible sexual abuse as the lesser included
offense for Count 4. The court declined to instruct the jury on
sexual battery for either count.
¶46 Norton contends that the failure to instruct on sexual
battery for both counts was error because there is overlap in the
elements of aggravated sexual assault 6 and sexual battery,7 and
6. For aggravated sexual assaults based on the underlying
offenses of rape and forcible sexual abuse, “[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 kidnaping, death, or serious bodily
injury to be inflicted imminently on any person.” Utah Code
Ann. § 76-5-405(1)(a) (LexisNexis 2012).
7. A person commits sexual battery “if the person, under
circumstances not amounting to,” among other offenses, a rape
or forcible sexual abuse or 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
(continued…)
20150302-CA 20 2018 UT App 82State v. Norton
there is a rational basis in the evidence from which the jury
could have acquitted him of aggravated sexual assault on both
counts and instead convicted him of sexual battery. He
essentially contends that there was a sufficient quantum of
evidence developed at trial to create questions about his mental
state as to Counts 3 and 4.
¶47 We disagree. Without deciding whether sexual battery is
an included offense of aggravated sexual assault, we conclude
that there was no rational basis in the evidence to acquit Norton
of aggravated sexual assault and convict him instead of sexual
battery. As we concluded above, supra ¶¶ 37–40, contrary to
Norton’s assertions, neither party presented evidence at trial to
create a dispute about his mental state as to either the sexual
intercourse or the sexual touching that occurred in the bathroom.
See State v. Oldroyd, 685 P.2d 551, 555–56 (Utah 1984) (explaining
that a defendant is entitled to a lesser included offense
instruction where the evidence offered in the case places an
element in dispute such that, based on that dispute, the jury
could find a defendant guilty of a lesser offense and not of the
greater); State v. Baker, 671 P.2d 152, 157 (Utah 1983) (“Thus,
where proof of an element of the crime is in dispute, the availability of
the ‘third option’ . . . gives the defendant the benefit of the
reasonable doubt standard.” (emphasis added)); see also Keeble v.
United States, 412 U.S. 205, 213 (1973) (suggesting that where “the
nature of petitioner’s intent was very much in dispute at trial,”
the jury could have rationally convicted the petitioner of a
requested lesser included offense with a lower intent “if that
option had been presented”). Indeed, Norton’s primary defense
(…continued)
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.” Utah Code
Ann. § 76-9-702.1(1) (LexisNexis 2012). Sexual battery is “a class
A misdemeanor.” Id. § 76-9-702.1(3).
20150302-CA 21 2018 UT App 82State v. Norton
at trial was that Wife lied about the instances of sexual abuse to
gain primary custody of their children. Norton made no
assertion that, for example, despite Wife’s alleged initiation of
sexual intercourse, circumstances arose such that he might have
been mistaken about Wife’s consent or that he knew or should
have known the continued sexual contact would cause affront or
alarm to Wife. Nor did he make any statement or suggest any
circumstances that might have created some ambiguity about his
intent as to the sexual touching in the bathroom; by his account,
Wife fabricated that touch.8
¶48 Therefore, the evidence about Norton’s mental state on
either count was not ambiguous, subject to any alternative
interpretation, or quantifiably sufficient to entitle him to lesser
included instructions on sexual battery. See Baker, 671 P.2d at 159
(explaining that a lesser included offense instruction must be
given when “there is a sufficient quantum of evidence to raise a
jury question regarding a lesser offense” or “the evidence is
ambiguous and therefore susceptible to alternative
interpretations, and one alternative would permit acquittal of the
8. On appeal, Norton also challenges the trial court’s refusal to
instruct on sexual battery for Count 4 by questioning the
sufficiency of the evidence to establish his intent. He argues that
“there was little if any evidence that Norton touched [Wife’s]
vagina” with the required intent, where Wife’s testimony was
that Norton inserted his fingers in her vagina for the purpose of
“wip[ing] away his DNA.” But Norton conceded a sufficiency of
the evidence argument below; indeed, at the close of the State’s
case, defense counsel stated that he recognized that “there’s
sufficient evidence with regard to each of the elements in this
case” and thereby declined to “make a motion for a judgment as
a matter of law.” And, apart from his sufficiency argument,
Norton has not shown that, based on the evidence at trial, he
was entitled to a lesser included offense instruction for sexual
battery on this count.
20150302-CA 22 2018 UT App 82State v. Norton
greater offense and conviction of the lesser”). As a result, the
jury would have had to impermissibly speculate about Norton’s
mental state to acquit him of aggravated sexual assault and
convict of sexual battery on both counts. See State v. Reece, 2015
UT 45, ¶ 30, 349 P.3d 712 (explaining that “a defendant’s request
for a lesser included offense instruction cannot be based on sheer
speculation” (quotation simplified)); State v. Garcia-Vargas, 2012
UT App 270, ¶¶ 17–18 & n.5, 287 P.3d 474 (indicating that, to
create a dispute about mental state sufficient to entitle the
defendant to lesser included offense instructions, there must be
actual evidence presented to the jury to suggest a dispute about
mental state); see also Baker, 671 P.2d at 157.
¶49 Accordingly, we conclude that the trial court did not err
in declining to instruct the jury on sexual battery as to Counts 3
and 4.
B. Unlawful Detention
¶50 Next, Norton argues that the court erred when it refused
to instruct the jury on unlawful detention9 as a lesser included
offense of aggravated kidnapping. He contends that such an
instruction was warranted because the statutory elements of
aggravated kidnapping and unlawful detention overlap10 and
9. A person commits the crime of unlawful detention when that
person “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.” Utah Code Ann.
§ 76-5-304(1) (LexisNexis 2012).
10. Norton argues that unlawful detention qualifies as a lesser
included offense of aggravated kidnapping because it is
statutorily defined as such. However, even if unlawful detention
could qualify as an included offense under statute, as we discuss
(continued…)
20150302-CA 23 2018 UT App 82State v. Norton
because there was a basis in the evidence to justify the
instruction. Specifically, Norton refers to his testimony where he
described restraining Wife’s hands at the Fort Douglas office
building. According to Norton, after he and Wife engaged in
consensual sexual intercourse, they argued over custody and the
argument “became physical.” He testified that Wife hit him, he
backhanded her, and then, for about “a minute,” he grabbed
Wife’s hands to stop her from hitting him again. He contends
that if the jury believed this testimony, it would have been
rational for it to find that he “merely detained or restrained”
Wife and to convict him of unlawful detention instead of
aggravated kidnapping or kidnapping.
¶51 Norton’s argument is misplaced. To determine that a
defendant was entitled to a lesser included offense instruction,
we must determine, among other things, that the “same facts tend
to prove elements of more than one statutory offense.” State v.
Powell, 2007 UT 9, ¶¶ 24–25, 154 P.3d 788 (emphasis added)
(quotation simplified); see also Utah Code Ann. § 76-1-402(3)(a)
(LexisNexis 2012) (identifying a lesser included offense as one
“established by proof of the same or less than all the facts
required to establish the commission of the offense charged”).
But Norton has not demonstrated that the “same facts” relied on
by the State to establish the offense of aggravated kidnapping
also tend to prove the elements of unlawful detention. Instead,
Norton wrongly claims entitlement to a lesser included offense
instruction by pointing to evidence that is distinct from the
evidence developed at trial to establish the greater offense.
(…continued)
below, an included offense cannot be based upon different facts
than the greater offense. And here, the facts the State proffered
to establish aggravated kidnapping and the facts Norton proffers
on appeal to establish unlawful detention are not the same.
20150302-CA 24 2018 UT App 82State v. Norton
¶52 To prove the charge of aggravated kidnapping, the State
presented evidence that Norton duct-taped Wife’s head and
mouth, took her from her parents’ house, and, while threatening
her with a gun, drove her to the Fort Douglas office building
where he sexually assaulted her. Norton does not contend that
these facts—or a subset of these facts—justifies an unlawful
detention instruction. Instead, Norton describes an entirely
separate event at the Fort Douglas office building where he
allegedly restrained Wife by holding her hands for about “a
minute.” But the State did not rely on this event to prove the
greater offense of aggravated kidnapping, nor did the State
charge Norton for this act.
¶53 Thus, Norton cannot demonstrate that the lesser offense
of unlawful detention is established by proof of the same or less
than all the facts required to prove the offense for which he was
charged. See Powell, 2007 UT 9, ¶¶ 24–25 & n.21. If anything, the
event Norton describes could more appropriately labeled a
possible separate offense, not a lesser included offense that
would warrant a lesser included offense instruction. Cf. State v.
Branch, 743 P.2d 1187, 1191 (Utah 1987) (explaining that an
offense is not lesser included if it is a separate offense
“committed within the same criminal episode” that is based on
“proof [of] different evidence”); State v. Garrido, 2013 UT App
245, ¶ 31, 314 P.3d 1014 (stating that “[e]ven 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” (quotation simplified)); State v. Smith, 2003
UT App 179, ¶ 16, 72 P.3d 692 (concluding that one offense was
not the lesser included of another where the State relied on
“materially different acts” to prove two separate offenses); State
v. Mane, 783 P.2d 61, 63, 65–66 (Utah Ct. App. 1989) (concluding
separate acts that were part of a single criminal episode were
separate offenses requiring proof of different evidence and
therefore did not stand in the relationship of greater and lesser
offenses). Accordingly, the court did not err in declining to give
the requested unlawful detention instruction.
20150302-CA 25 2018 UT App 82State v. Norton
C. Aggravated Assault and Assault
¶54 Finally, Norton argues that the court erred by not
instructing the jury on aggravated assault and assault 11 as lesser
included offenses of aggravated burglary.12 He contends that
elements of aggravated assault and assault overlap with those of
aggravated burglary and that there was a rational basis in the
evidence to support giving those instructions. Specifically, he
contends that it would have been rational for the jury to acquit
him of aggravated burglary but convict him of aggravated
assault or assault on the basis of his entry of the Fort Douglas
office building. He alleges that the jury could have determined
11. At the time of Norton’s conduct, the aggravated assault
statute provided that an aggravated assault occurs “if the person
commits assault . . . and uses: (a) a dangerous weapon . . . ; or (b)
other means or force likely to produce death or serious bodily
injury.” Utah Code Ann. § 76-5-103(1) (LexisNexis 2012).
Similarly, at the time of Norton’s conduct, 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 causes
bodily injury to another or creates a substantial risk of bodily
injury to another.” Id. § 76-5-102(1).
12. Aggravated burglary occurs when a person “in attempting,
committing, or fleeing from a burglary . . . (a) causes bodily
injury to any person who is not a participant in the crime; (b)
uses or threatens the immediate use of a dangerous weapon
against any person who is not a participant in the crime; or (c)
possesses or attempts to use any explosive or dangerous
weapon.” Id. § 76-6-203(1) (2012). Burglary occurs when an actor
“enters or remains unlawfully in a building or any portion of a
building with intent to commit,” among other things, a felony or
“an assault on any person.” Id. § 76-6-202(1).
20150302-CA 26 2018 UT App 82State v. Norton
that backhanding Wife during the mutual argument over
custody he contends occurred in that building constituted
aggravated assault or assault. Further, he claims that the jury
could have acquitted him of aggravated burglary by finding that
he “did not enter [the building] unlawfully.” Either way, Norton
claims, if the jury believed that he backhanded Wife in the Fort
Douglas office building with the requisite intent, aggravated
assault or assault would have been the “appropriate verdict.”
¶55 Like we concluded about Norton’s unlawful detention
argument, we conclude that aggravated assault and assault are
not lesser included offenses of aggravated burglary under the
facts of this case. The evidence developed by the State to
establish the greater offense of aggravated burglary and the
evidence Norton relies upon to claim entitlement to lesser
included offense instructions are materially different. See Powell,
2007 UT 9, ¶¶ 24–25. The State’s entire case related to the
aggravated burglary charge centered only on Norton’s entry of
his parents-in-law’s house at the beginning of the night. The
State made no allegation and presented no facts or evidence at
trial that Norton’s entry of the Fort Douglas office building was
unlawful or formed the basis of the aggravated burglary charge;
indeed, the State specifically argued that Norton “entered or
remained unlawfully in the building—the building being the
house.”
¶56 Norton cannot prove entitlement to lesser included
offense instructions by pointing to facts and evidence that are
factually distinct from and center upon entirely different alleged
incidents than those offered to establish the greater offense. See
id.; cf. Garrido, 2013 UT App 245, ¶ 31; Smith, 2003 UT App 179,
¶ 16. Because the facts and evidence developed to establish the
greater offense of aggravated burglary were different from the
facts and evidence relied upon by Norton to claim entitlement to
the lesser included offense instructions of aggravated assault
and assault, those lesser offenses were not included within the
20150302-CA 27 2018 UT App 82State v. Norton
greater offenses. Powell, 2007 UT 9, ¶¶ 24–25. Accordingly, the
court did not err in declining to give the requested instructions.13
III. Sentencing
¶57 Finally, Norton argues that his sentence was erroneous
for two reasons. First, he argues that sentencing him for the
13. In a footnote, Norton also contends that his counsel was
ineffective for “failing to request criminal trespass as an
additional lesser-included offense of aggravated burglary”
because the jury could have believed his testimony that he did
not break into his parents-in-law’s house at the beginning of the
night, but that he was guilty of criminal trespass because he was
“not justified in breaking into [Wife’s parents’] house after
[Wife] locked herself out or that he remained at the house
unlawfully after he and [Wife] resumed arguing and [Wife]
ordered him to leave.”
For similar reasons that we concluded Norton was not
entitled to the requested aggravated assault and assault
instructions, we conclude that based on Strickland v. Washington,
466 U.S. 668 (1984), his counsel was not ineffective for failing to
request that the jury be instructed on criminal trespass as a lesser
included offense of aggravated burglary. Here, the evidence
Norton relies upon is different—in time and in substance—from
the evidence developed to establish the greater offense. The
State’s entire case for aggravated burglary was based on events
that occurred when Norton retrieved Wife from her parents’
house at the beginning of the night. Accordingly, 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. See State v. Calvert, 2017 UT App
212, ¶ 22, 407 P.3d 1098 (explaining that “counsel’s failure to
make a motion that would be futile if raised does not constitute
deficient performance”).
20150302-CA 28 2018 UT App 82State v. Norton
aggravated sexual assault convictions under the highest
sentencing tier violated his rights to due process and a jury trial.
Second, he argues that the court abused its discretion in
imposing two fifteen-years-to-life terms for the aggravated
sexual assault convictions because the court did not conduct the
“statutorily mandated interests-of-justice analysis.” We address
each argument below.
A. Sentencing Tier
¶58 The jury convicted Norton of two counts of aggravated
sexual assault based upon Wife’s testimony describing
nonconsensual intercourse and Norton inserting his fingers into
her vagina. During sentencing, Norton contended that, because
there was no special verdict form and the instructions allowed
the jury to convict him if it found that he had committed
attempted rather than completed acts of rape or forcible sexual
abuse, the court should sentence him as though the jury had
found him guilty of committing the lowest culpable underlying
offense in the aggravated sexual assault statute—attempted
forcible sexual abuse. The court disagreed and instead sentenced
Norton on those counts each to the presumptive fifteen years to
life sentences for completed acts of rape and forcible sexual
abuse—the highest tier of sentencing available under the statute.
See Utah Code Ann. § 76-5-405(2) (LexisNexis 2012). In doing so,
the court determined that sentencing in that way achieved
“fundamental fairness” with no “denial of any due process or
right” because there was no evidence in the record to support a
conclusion that Norton’s actions constituted mere attempts.
¶59 On appeal, Norton contends this was error. He frames his
challenges under his constitutional rights to a jury trial and due
process.14 As we understand it, his argument is that, because
14. Norton references both the United States and the Utah
Constitutions in making this claim. However, Norton “has not
(continued…)
20150302-CA 29 2018 UT App 82State v. Norton
there was no special verdict form and the trial court instructed
the jury that it could convict him for attempts as well as
completed acts, sentencing him under the highest tier violated
his “rights to due process and to a jury trial because it increased
[his] minimum mandatory sentence without a jury verdict on
each of the elements required to increase the sentence.” He
contends that attempted forcible sexual abuse was the only
“version of the offense for which the record showed that the jury
found [him] guilty of each element of the offense beyond a
reasonable doubt.”15 In essence, then, Norton seems to argue
that, in choosing to sentence him under the highest tier, the court
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. In this way, the sentence violated
his rights to due process and a jury trial because the court based
its sentence on facts that the jury did not find beyond a
reasonable doubt.
(…continued)
adequately set forth any separate legal analysis” under the due
process or the right to jury trial provisions of the Utah
Constitution. See State v. Marshall, 2003 UT App 381, ¶ 8 n.2, 81
P.3d 775 (quotation simplified). Accordingly, we do not
separately analyze Norton’s state constitutional claims. See id.
15. The State argues that Norton has not preserved his argument
for appeal. We disagree. Norton argues on appeal that the court
erred when it declined to sentence him according to the lowest
tier of the aggravated sexual assault sentencing hierarchy for
Counts 3 and 4 because doing so violated his rights to due
process and a jury trial. He made these same arguments to the
court below, and the court ultimately determined that, given the
evidence, there was no denial of due process or fundamental
fairness by sentencing Norton for committing the underlying
offenses of rape and forcible sexual abuse.
20150302-CA 30 2018 UT App 82State v. Norton
¶60 Norton is correct that he is entitled to a jury trial on all of
the elements of the crimes for which he is charged and that he
cannot be convicted for the charged crimes unless there is “proof
beyond a reasonable doubt of every fact necessary to constitute”
them. See State v. Palmer, 2009 UT 55, ¶ 11 & n.17, 220 P.3d 1198(quotation simplified); State v. Reyes, 2005 UT 33, ¶ 11, 116 P.3d
305; see also Apprendi v. New Jersey, 530 U.S. 466, 476–77 (2000)
(explaining that the rights to a jury trial and to due process,
“[t]aken together, . . . indisputably entitle a criminal defendant to
a jury determination that he is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt”
(quotation simplified)). Norton is also correct that these rights
are implicated in sentencing cases “whenever a judge seeks to
impose a sentence that is not solely based on facts reflected in
the jury verdict or admitted by the defendant.” Palmer, 2009 UT
55, ¶ 12 (quotation simplified). For example, a sentencing court
may not make additional factual findings that ultimately
“expose[] the criminal defendant to a penalty exceeding the
maximum he would receive if punished according to the facts
reflected in the jury verdict alone.” Apprendi, 530 U.S. at 483 &
n.10 (quotation simplified); see also id. at 490.
¶61 Here, although Norton argues that the jury’s verdict
reflected convictions beyond a reasonable doubt of two counts of
only attempted16 forcible sexual abuse and that the court erred in
not sentencing him accordingly, we conclude that the court did
not err in sentencing him under the highest tier of the
16. An attempt occurs if a person “engages in conduct
constituting a substantial step toward commission of the crime”
and “intends to commit the crime; or . . . when causing a
particular result is an element of the crime, he acts with an
awareness that his conduct is reasonably certain to cause that
result.” Utah Code Ann. § 76-4-101 (LexisNexis 2012).
20150302-CA 31 2018 UT App 82State v. Norton
aggravated sexual assault statute.17 We must assume that the
jury convicted Norton of the act or acts for which the evidence
was sufficient. See State v. Isom, 2015 UT App 160, ¶ 27, 354 P.3d
791 (stating that a jury must “decide the case on the evidence”
presented about the charged crime (quotation simplified)); see
also United States v. Self, 2 F.3d 1071, 1093 (10th Cir. 1993) (stating
that, in determining whether reversal is necessary when a
general verdict is returned where more than one theory is
advanced, “factual insufficiency” of one of the theories advanced
will not require reversal “as we will presume that the jury
rejected the factually inadequate theory and convicted on an
alternative ground for which the evidence was sufficient”);
17. In making his argument, Norton relies heavily on decisions
such as Apprendi v. New Jersey, 530 U.S. 466 (2000), and State v.
Lopes, 1999 UT 24, 980 P.2d 191, in which the respective courts
determined that due process and the right to a jury trial are
violated when a sentencing court finds facts distinct from those
of the convicted crime that increase the allowable penalty for
that crime but have not been proven by the State beyond a
reasonable doubt or submitted to a jury. See Apprendi, 530 U.S. at476–90; Lopes, 1999 UT 24, ¶¶ 13–17, 22. However, other than
citing those cases, Norton does not explain how or why that
jurisprudence applies in the circumstances of his case,
particularly where the trial court submitted the elements and the
evidence proffered to support conviction for completed acts of
rape and forcible sexual abuse to the jury for determination.
And, as we discuss below, he does not identify the record
evidence that supports his contention that the jury’s verdict
could reflect only convictions of attempted forcible sexual abuse
for those counts. In any event, we ultimately conclude that the
sentencing court did not err when it sentenced Norton under the
highest tier of the aggravated sexual assault sentencing
hierarchy. But in doing so, we express no opinion on whether
the Apprendi and the Lopes lines of cases apply to the
circumstances present here.
20150302-CA 32 2018 UT App 82State v. Norton
cf. State v. Fedorowicz, 2002 UT 67, ¶ 40, 52 P.3d 1194 (noting that,
in reviewing an evidentiary challenge to a verdict, we “assume
that the jury believed the evidence that supports the verdict”);
Madsen v. Brown, 701 P.2d 1086, 1092 (Utah 1985) (explaining that
a jury’s verdict must have “foundation in the evidence” and may
not be “based on evidence so fragmentary that no reasonable
minds could have so concluded”). And we cannot discern from
our review of the record any factual basis—and Norton does not
identify such a factual basis—to support a conclusion that the
jury could have determined that the sexual acts underlying
Counts 3 and 4 constituted only attempted forcible sexual abuse.
See United States v. Barnes, 158 F.3d 662, 667–68 (2d Cir. 1998)
(noting that the evidence of conspiracy to possess marijuana was
legally insufficient and that it was “inconceivable that the jury
could have convicted” on that basis, but assuming that “the jury
convicted the defendant of conspiring to possess at least one of
those controlled substances as to which the evidence was
sufficient”); cf. State v. Peterson, 881 P.2d 965, 968–70 & n.3 (Utah
Ct. App. 1994) (concluding that the defendant was not entitled to
lesser included offense instructions for, among other things,
attempted aggravated burglary, burglary, and criminal trespass,
where the trial court determined that “there was no credible
testimony” contradicting the fact that the defendant actually
entered the residence at issue in the case, and noting that “[i]f
entry occurred, the attempt offenses would logically be
excluded” as appropriate lesser included offenses).
¶62 For the conviction pertaining to Count 3, the sexual
intercourse count, there is no evidence in the record to support a
conclusion that the jury’s guilty verdict reflected a finding
beyond a reasonable doubt of an underlying aggravated sexual
assault offense other than rape. The trial court instructed the jury
that this count pertained to the “allegation of sexual
intercourse,” and it was undisputed at trial that the sexual
intercourse occurred. Both Norton and Wife unequivocally
testified that it did; thus, at trial, the only question for the jury
was whether the intercourse amounted to rape or consensual
20150302-CA 33 2018 UT App 82State v. Norton
intercourse, not whether Norton attempted but failed to engage
in intercourse with Wife.
¶63 Other evidence presented during trial also demonstrated
that this count pertained to a completed act of sexual intercourse
as opposed to an act of attempted sexual touching or an
attempted taking of “indecent liberties.” See Utah Code Ann.
§ 76-5-404(1) (LexisNexis 2012) (providing that forcible sexual
abuse involves touching “the anus, buttocks, or any part of the
genitals of another, or touch[ing] the breast of a female, or
otherwise tak[ing] indecent liberties with another” in
circumstances “not amounting to rape . . . or attempted rape”
(emphasis added)); id. § 76-5-402(1) (providing that “[a] person
commits rape when the actor has sexual intercourse with
another person without the victim’s consent”). For example,
both parties stipulated that the vaginal swabs performed on
Wife after the incident tested positively for semen and that
Norton’s DNA was found in that semen. And Norton has not
pointed to any evidence that potentially created any ambiguity
as to the factual question of whether the sexual assault was an
attempted forcible sexual abuse as opposed to a completed rape.
Cf. State v. Barela, 2015 UT 22, ¶¶ 28–32, 349 P.3d 676 (explaining
that reversal on the basis of erroneous jury instructions was
appropriate where the evidence in the record created some
ambiguity as to whether the defendant might have been
mistaken about the victim’s nonconsent); Peterson, 881 P.2d at968–70 & n.3. As a result, under the circumstances of this case,
“we refuse to indulge the assumption” that the jury’s verdict
could have been based on a finding of an underlying aggravated
sexual assault offense other than a completed rape. See Barnes,
158 F.3d at 668. Thus, the sentencing court did not err in
concluding that the jury’s verdict on this count reflected a
finding of guilt that Norton completed the act of rape and in
sentencing him accordingly.
¶64 Likewise, for Count 4, the allegation pertaining to
Norton’s penetration of Wife’s vagina with his fingers, there is
20150302-CA 34 2018 UT App 82State v. Norton
no evidence in the record to suggest that the jury’s guilty verdict
reflected conviction of an attempted rather than a completed
forcible sexual abuse. The dispute at trial centered on whether
the incident occurred at all, not whether the touching was
completed rather than attempted. Wife testified that it did
occur—she claimed that Norton inserted his fingers when he
ordered her to shower and rinse herself off after raping her.
Norton denied it by testifying that Wife voluntarily showered
after the sexual intercourse and that his participation was limited
to turning on the faucet and handing her paper towels with
which to dry off. And other than his denial, there was no
evidence creating ambiguity about the factual question of
whether Norton merely attempted, as opposed to completed, the
alleged abuse. Cf. Barela, 2015 UT 22, ¶¶ 28–32; Peterson, 881 P.2d
at 968–70 & n.3.
¶65 As a result, there was no room in the narratives for the
jury to have concluded the truth lay somewhere between the two
accounts. Cf. Barela, 2015 UT 22, ¶¶ 28–32 (reversing based on an
erroneous jury instruction where there was evidence in the
record that could have permitted the jury to conclude that “the
truth fell somewhere in between the two accounts” provided by
the defendant and the victim during trial). Thus, even though
the jury was free to believe or disbelieve either Wife’s or
Norton’s account, neither narrative gave the jury a basis from
which to conclude that the sexual abuse on this count was only
an attempt. See Madsen, 701 P.2d at 1092 (explaining that a jury’s
verdict must have its “foundation in the evidence”). In these
circumstances, we can conclude only that, by convicting instead
of acquitting Norton on this count, the jury’s verdict reflected a
finding of guilt beyond a reasonable doubt on the basis of a
completed act of forcible sexual abuse.18 See Isom, 2015 UT App
160, ¶ 27.
18. Norton also suggests that the lack of a special verdict form
somehow played into the deprivation of his rights. Our supreme
(continued…)
20150302-CA 35 2018 UT App 82State v. Norton
¶66 For these reasons, we conclude that the sentencing court
did not err when it determined that the facts reflected in the
jury’s verdict amounted to convictions for a completed rape and
completed forcible sexual abuse and thereafter sentenced him
under the highest tier of the aggravated sexual assault
sentencing hierarchy.
B. Interests of Justice
¶67 Norton contends that the trial court abused its discretion
by declining to reduce in the interests of justice the presumptive
fifteen years to life sentences for the two counts of aggravated
sexual assault, as permitted by Utah Code section 76-5-405.
Norton argues that the court exceeded its discretion by not
conducting the required interests of justice analysis set out by
our supreme court in LeBeau v. State, 2014 UT 39, 337 P.3d 254.
He asks that we remand the case for a new sentencing hearing,
“with an order that the court conduct a complete interests-of-
justice analysis.”
(…continued)
court has recently reiterated that a special verdict form, while
permitted, is not required. State v. Hummel, 2017 UT 19, ¶ 50, 393
P.3d 314. But even if we assume a special verdict form should
have been employed in this case, for the same reasons explained
above, we cannot conclude that Norton was harmed by its
absence. Because there was no basis in the evidence for the jury
to have determined as a factual matter that Norton committed
only attempted forcible sexual abuse on Counts 3 and 4,
employing a special verdict form could not have provided
Norton the relief he now seeks—being sentenced as though he
committed only attempted forcible sexual abuse. See State v.
Isom, 2015 UT App 160, ¶ 27, 354 P.3d 791 (stating that the jury’s
duty is to “decide the case on the evidence” through a
“disinterested, impartial and fair assessment of the testimony
that has been presented” (quotation simplified)).
20150302-CA 36 2018 UT App 82State v. Norton
¶68 Generally, “a trial court’s sentencing decision will not be
overturned unless it exceeds statutory or constitutional limits,
the judge failed to consider all the legally relevant factors, or the
actions of the judge were so inherently unfair as to constitute
abuse of discretion.” State v. Jaramillo, 2016 UT App 70, ¶ 32, 372
P.3d 34 (quotation simplified). In reviewing the sentence
imposed, we will “presume that the sentencing court made all
the necessary considerations,” State v. Alvarez, 2017 UT App 145,
¶ 4, 402 P.3d 191 (quotation simplified), unless the appellant
successfully demonstrates the presence of circumstances to
overcome that presumption, State v. Helms, 2002 UT 12, ¶ 11, 40
P.3d 626 (noting that situations in which this presumption
should not apply “are normally limited to [those] where (1) an
ambiguity of facts makes the assumption unreasonable, (2) a
statute explicitly provides that written findings must be made,
or (3) a prior case states that findings on an issue must be
made”). “Absent these circumstances, we will not assume that
the trial court’s silence, by itself, presupposes that the court did
not consider the proper factors as required by law. To do so
would trample on the deference this court usually gives to the
sentencing decisions of a trial court.” Id.¶69 Utah Code section 76-5-405 provides that the presumptive
prison sentence for a person convicted for aggravated sexual
assault on the basis of a completed act is fifteen years to life. See
Utah Code Ann. § 76-5-405(2)(a)(i) (LexisNexis 2012). However,
a sentencing court may reduce the presumptive prison term to
either ten years to life or six years to life if it determines that a
“lesser term . . . is in the interests of justice.” See id. § 76-5-
405(3)(a). In LeBeau, our supreme court held that the sentencing
court must conduct an interests of justice analysis for offenses
that permit a reduction on that basis before imposing the
presumptive sentence for convictions of certain offenses, like
aggravated sexual assault. 2014 UT 39, ¶¶ 21, 24; see also id. ¶ 29
(observing that the legislature added the interests of justice
analysis in 2007 “as part of a sweeping revision of the penalties
associated with sexual offenses and kidnapping,” including the
20150302-CA 37 2018 UT App 82State v. Norton
offense of aggravated sexual assault, and that in each offense, the
legislature “instructed sentencing courts to consider whether the
interests of justice warranted a lesser sentence” than the
presumptive sentence). The interests of justice analysis requires a
sentencing court to consider the proportionality of the sentence
to the offense and the defendant’s rehabilitative potential. Id.
¶ 37.
¶70 First, the court must consider “the proportionality of the
defendant’s sentence in relation to the severity of his offense.” Id.
¶¶ 36–37. In this regard, the court must consider the “gravity of
the offense and the harshness of the penalty.” Id. ¶ 42 (quotation
simplified). The supreme court has identified the Utah
Sentencing Commission’s list of aggravating and mitigating
circumstances as “a good starting point,” while instructing that
courts should also “consider all relevant facts raised by the
parties about the defendant’s crime in relation to the harshness
of the penalty,” such as the nature and magnitude of the crime,
the “culpability of the offender,” and the offender’s motivation.
Id. ¶¶ 42–46. Proportionality also requires the court to “compare
the sentence being imposed to the sentences imposed for other
crimes in Utah” so as to avoid arbitrary sentencing disparities.
Id. ¶¶ 41, 47; see also State v. Martin, 2017 UT 63, ¶ 61 (stating that
the “ultimate question at this stage . . . should be whether the
overall sentence that the court plans to impose will be unusually
high or low compared with the typical sentences for
approximately similar offenses”). But see Martin, 2017 UT 63,
¶¶ 64–66 (explaining that, because this “is a daunting task,” it is
not one “that we can require our district courts to perform
without prompting or guidance from counsel”).
¶71 The court must also “appropriately weigh a defendant’s
potential for rehabilitation,” which includes considering “all of
the factors relevant to a defendant’s rehabilitative potential” and
taking into consideration the Board of Pardons and Parole’s (the
Board) role in our indeterminate sentencing scheme to monitor a
defendant’s behavior and accordingly adjust the maximum
20150302-CA 38 2018 UT App 82State v. Norton
sentence. LeBeau, 2014 UT 39, ¶¶ 37, 52, 54. Some factors that
have bearing on a defendant’s rehabilitation potential are the
defendant’s age, “the extent to which a defendant’s crime was
tied to alcohol or drug addiction,” “the defendant’s prospects for
treatment,” “[t]he extent to which a defendant’s criminal history
evidences continual violence,” and the Sentencing Commission’s
guidelines as related to the defendant’s “capacity for
rehabilitation.” Id. ¶ 54.
¶72 Norton asserts that the court failed to consider both the
proportionality of his sentence and his potential for
rehabilitation. With the above principles in mind, we address
each below.
1. Proportionality
¶73 Norton argues that although the court considered the
severity of his conduct, it did not consider whether the
presumptive sentence was a proportional penalty for both
convictions of aggravated sexual assault. He contends that the
court did not conduct the proportionality analysis required by
LeBeau and instead merely “assumed that [his] conduct merited
a 15-years-to-life sentence and imposed sentence based on its
assessment of whether [he] was entitled to ‘mercy.’” He also
contends that, under the circumstances of this case, his
aggravated sexual assault convictions are comparatively less
serious than other crimes, such as murder, which also carry
presumptive prison sentences of fifteen years to life.
¶74 We conclude that Norton’s contentions do not have merit.
To begin with, Norton is correct that the court did not expressly
explain its sentencing decision in terms of the proportionality
rubric set out in LeBeau. But although Norton asked the court to
reduce his sentence in the interests of justice, “he did not invoke
the proportionality rubric in making his argument” for a
reduced sentence. See State v. Alvarez, 2017 UT App 145, ¶ 5, 402
P.3d 191. Instead, Norton referred to subsection (3)(a) but then
proceeded to provide the court only with considerations relating
20150302-CA 39 2018 UT App 82State v. Norton
to his past and his rehabilitative potential that he claimed
justified a departure from the presumptive sentence. At no time
did Norton invoke the proportionality rubric set out in LeBeau or
object to the court’s analysis for failing to explain the sentence it
imposed in those terms. As a result, Norton cannot “now be
heard to argue that the sentencing court was remiss in not
articulating its views on proportionality.” See id. ¶¶ 4–5 & n.4.
¶75 Moreover, there is no evidence to support Norton’s
contention that the court imposed its sentence by merely
assuming that his conduct merited the presumptive sentence,
without taking into account the relevant proportionality
considerations presented by the parties. Rather, it is apparent
from the sentencing transcript that the court, based upon the
information provided to it, did consider whether the
presumptive sentence was a proportional penalty to Norton’s
crimes. See LeBeau v. State, 2014 UT 39, ¶¶ 42, 46, 337 P.3d 254(explaining that “courts should consider all relevant facts raised
by the parties about the defendant’s crime in relation to the
harshness of the penalty,” and reiterating that, even under an
interests of justice analysis, “sentencing remains a highly fact-
dependent endeavor” for which there is no “exhaustive list of
factors” (emphasis added)).
¶76 First, the court indicated it had reviewed the PSI and the
attached letters, which included extensive information regarding
the aggravating and mitigating circumstances in the case as well
as information regarding the violent nature of the aggravated
sexual assaults, Norton’s culpability in perpetrating them, and
an ultimate recommendation for the statutory prison sentence on
each count. The court also heard from both parties regarding
their recommended sentence and the reasons for the
recommendations. We presume that the court duly considered
all such information in rendering its sentencing decision. State v.
Helms, 2002 UT 12, ¶ 11, 40 P.3d 626; accord State v. Moa, 2012 UT
28, ¶ 35, 282 P.3d 985.
20150302-CA 40 2018 UT App 82State v. Norton
¶77 Further, the court explained its decision to impose the
presumptive sentence by highlighting the various factors it
recognized to be in play and explaining why it believed Norton’s
requested reduction was inappropriate in light of the
circumstances. The court stated that, in its view, the case was
“not a probation case.” The court noted that Norton had had a
“good past in many, many ways,” with “very little that’s
negative,” and that it recognized that “a marriage break up is
complicated and difficult.” It also recognized that the
convictions resulted from “a concrete discrete event that took
hours and not days.” Yet the court explained that it accepted the
jury’s verdict, which demonstrated the jury’s rejection of
Norton’s narrative of the events, and expressed its belief that the
events did not happen at all the way Norton contended. In this
regard, the court observed that Norton’s conduct was “way,
way, way over the line” and not of a kind that “our society can
tolerate.” The court explained that Norton was “entitled to some
mercy, but not what [his] lawyer is asking and not what [Norton
was] asking.” It concluded that in the balance, given the severity
of Norton’s conduct and the “great” harm he inflicted, “a 15 to
life term covers it.”
¶78 Norton has not demonstrated this analysis was improper
in light of the information presented to the court for sentencing.
See LeBeau, 2014 UT 39, ¶ 42 (explaining that a court must
consider all information related to proportionality that is “raised
by the parties”). And to the extent that Norton disagrees with
the court’s weighing of the various factors presented to it
regarding proportionality, Norton cannot demonstrate an abuse
of discretion merely by disagreeing with the court’s analysis or
arguing on appeal that the court ought to have weighed certain
factors more heavily.19 Alvarez, 2017 UT App 145, ¶ 5.
19. Norton also asserts that the presumptive sentence was
inappropriate because “the jury rejected [Wife’s] testimony that
Norton used a gun,” the sexual assaults “did not rise to the level
(continued…)
20150302-CA 41 2018 UT App 82State v. Norton
¶79 Norton also contends that the court failed to compare his
sentence with sentences imposed for other similar crimes. But
Norton did not provide the court with comparative information
regarding whether the presumptive sentence would “be
unusually high or low compared with the typical sentences for
approximately similar offenses.” State v. Martin, 2017 UT 63,
¶ 61. Norton contended during the sentencing hearing that the
“Court has seen some very serious and egregious offenses,” and
that “this case does not rise to the level of the kinds of egregious
cases where we have individuals who suffered significant loss of
life or impairment.” Other than this imprecise assertion, he did
not request that the court compare the presumptive sentence to
(…continued)
of murder or aggravated sexual abuse of a child,” and they did
not “result in serious bodily injury.” Contrary to Norton’s
assertions, the jury’s verdict of aggravated sexual assault
demonstrates that, at least as to the sexual assaults, the jury
found that Norton perpetrated them under aggravating
circumstances, and Norton has not challenged the sufficiency of
the evidence regarding the aggravating factor for either
aggravated sexual assault conviction on appeal. In light of the
presence of an aggravating factor, we also reject Norton’s
contention that the court could not impose the presumptive
sentence absent evidence of serious bodily injury. As the
supreme court observed in LeBeau v. State, 2014 UT 39, 337 P.3d
254, in establishing the sentencing scheme for sexual offenses,
the legislature “signaled its judgment that sexual crimes, which
intrude on the fundamental bodily integrity of the victim like no
others short of murder, are serious enough to warrant a sentence
of [life without parole]” and that sexual crimes “represent an
especially heinous form of bodily insult.” Id. ¶¶ 49–50. Certainly,
it is not beyond the pale for a sentencing court to conclude that
in certain cases a sexual assault perpetrated under aggravating
circumstances merits imposition of the presumptive fifteen years
to life sentence.
20150302-CA 42 2018 UT App 82State v. Norton
other sentences imposed for similar crimes or provide the court
with any actual comparisons of typical sentences for similar
offenses to assist the court. In these circumstances, we will not
fault the court for failing to conduct a sua sponte review of the
Utah Code to “identify similar offenses” and then “compare
their sentencing schemes to the sentence” it intended to impose
on Norton. See id. ¶ 66 (explaining that this is “not a task that we
can require our district courts to perform without prompting or
guidance from counsel”). Nor will we shoulder the burden on
appeal of “scouring the criminal code” in an effort to determine
other sentencing schemes the court “ought to have considered in
assessing the propriety of the sentence it imposed.” See id. ¶ 65.20
2. Rehabilitation
¶80 Norton also argues that the sentencing court failed to
consider his potential rehabilitation in imposing the presumptive
prison terms. In particular, he claims that the sentencing court
failed to consider all the relevant factors and the Board’s role in
determining his maximum sentence. He also contends that the
court wrongly rejected much of the mitigating evidence.
¶81 We disagree. Norton has not rebutted the presumption
that the court duly considered all of the information the parties
presented with bearing on his rehabilitative potential. See State v.
Jaramillo, 2016 UT App 70, ¶¶ 41–42, 372 P.3d 34 (presuming that
a court considers the factors presented to it regarding a
defendant’s potential for rehabilitation). As discussed above, the
20. Norton also contends that the court inappropriately applied
principles of deterrence to reach its sentencing decision. Norton
did not object on this basis below or suggest to the court that,
when conducting an interest of justice analysis, applying
principles of deterrence is inappropriate. As a result, we
consider this argument waived and do not address it further. See
State v. Johnson, 2017 UT 76, ¶ 16 n.4.
20150302-CA 43 2018 UT App 82State v. Norton
court “had the benefit of [the PSI] containing information about
[Norton’s] criminal and personal history.” See id. ¶ 42. During
sentencing, the court was also provided further information
regarding Norton’s potential for rehabilitation. Norton
contended that his lack of criminal history, his desire to move
forward productively in his life, his age, his acceptance that his
relationship with Wife had ended, his amenability to
supervision, and his desire to be released in “such a time that he
could support his children,” all justified a sentence reduction. He
also cited letters submitted in support, which he contended
showed that he had been a contributing community member
before the incident. In contrast, the State contended that
Norton’s crimes had been “terrible” and violent, and it
emphasized the fact that Norton had failed to take any
responsibility for his actions and that he continued to maintain
his “bogus” story. Wife’s attorney addressed the court and
expressed that, contrary to his contentions, Norton had shown
himself to be unamenable to court supervision by blatantly
defying the protective order that had been in place the night of
the events. Wife also made a statement, reiterating her concern
for her and her family’s safety if Norton were ever released and
stating that Norton blames her for his imprisonment and had
lied under oath regarding the events.
¶82 Further, it is clear from the court’s statements during
sentencing that it considered the information the parties
provided that had some bearing on Norton’s rehabilitative
potential. The court expressly acknowledged that Norton had a
“good past,” that he was well-liked by some people, that it
would be “a long time in prison for someone [Norton’s] age,”
and that Norton’s crimes all occurred in one “concrete discrete
event.” See LeBeau v. State, 2014 UT 39, ¶ 54, 337 P.3d 254 (noting
that a sentencing court should “consider all relevant factors
when evaluating the defendant’s rehabilitative potential,”
including a defendant’s age and criminal history). But the court
also expressed concern over Norton’s failure to take
responsibility for his actions. The court explained that “one of
20150302-CA 44 2018 UT App 82State v. Norton
the real difficulties here . . . is [Norton’s] inability and
unwillingness to follow the truth” related to the events. The
court stated that it accepted the jury’s verdict, and that in its
opinion, the events did not happen “at all the way [Norton said]
they happened.” Likewise, the court expressed concern over the
extreme nature of Norton’s crimes.
¶83 To the extent that Norton argues that the court did not
consider other relevant factors, such as the Board’s role in our
indeterminate sentencing scheme, Norton did not specifically
raise the factors cited by LeBeau as relevant to rehabilitative
potential, request the court to conduct a rehabilitative potential
analysis, or raise the Board’s role as a pertinent consideration.
Indeed, the only mention of the Board throughout the sentencing
hearing was made by the court, when it informed Norton that
the Board would give him credit for the time he had already
served and that it would handle collecting any restitution. As we
explained above, we will not require a court to sua sponte
consider factors on which Norton provided no information or
did not raise for consideration. See Martin, 2017 UT 63, ¶¶ 64–66;
State v. Alvarez, 2017 UT App 145, ¶¶ 4–5 & n.4, 402 P.3d 191.
¶84 Norton’s other contentions on this point amount to
disagreement with how the court weighed certain factors.
Norton contends that the court failed to consider the mitigating
evidence he offered and that the court ought to have weighed
more heavily his age, his lack of criminal history, his
employment skills, his desire to move forward with his life, the
emotional devastation his divorce caused him, his acceptance of
the divorce, and the fact that this amounted to one criminal
episode with one victim.
¶85 But merely re-arguing certain factors on appeal and
contending the court failed to appropriately weigh them is
insufficient to demonstrate an abuse of discretion. Alvarez, 2017
UT App 145, ¶ 6. Moreover, the sentencing court is entitled to
weigh some factors more heavily than others. State v. Cline, 2017
20150302-CA 45 2018 UT App 82State v. Norton
UT App 50, ¶ 7, 397 P.3d 652 (explaining that “not all
aggravating and mitigating factors are equally important”
because “one factor in mitigation or aggravation may weigh
more than several factors on the opposite scale” (quotation
simplified)). Here, the court was entitled to weigh the extreme
and violent nature of the sexual assaults as well as Norton’s
failure to take responsibility for them more heavily than other
factors offered in mitigation. See State v. Martin, 2017 UT 63,
¶¶ 70–71 (concluding that it was not an abuse of discretion for
the sentencing court to impose a sentence reflective of the fact
that the defendant failed “to take responsibility and express
remorse” post-conviction for the crimes of which he was
convicted, because this failure “cast serious doubt on [the
defendant’s] rehabilitative potential”); LeBeau, 2014 UT 39,
¶¶ 49–50 (suggesting that sexual crimes “intrude on the
fundamental bodily integrity of the victim like no others short of
murder” and that sexual crimes “represent an especially heinous
form of bodily insult”).
¶86 In sum, we conclude that the sentencing court did not
exceed its discretion by not reducing Norton’s sentence as
requested in the interests of justice.
IV. Cumulative Error
¶87 Norton finally contends that we should reverse under the
cumulative error doctrine. See State v. White, 2016 UT App 241,
¶ 14, 391 P.3d 311 (explaining that we will reverse under the
cumulative error doctrine “only if the cumulative effect of
multiple errors undermines our confidence that a fair trial was
had” (quotation simplified)). But we have concluded that any
potential error in the instructions related to the aggravated
sexual assault counts was not harmful, that the court did not err
in declining to give the requested lesser included offense
instructions, and that the sentencing court did not err or abuse
its discretion in imposing the presumptive fifteen-years-to-life
sentence for both counts of aggravated sexual assault.
20150302-CA 46 2018 UT App 82State v. Norton
Accordingly, we decline to reverse on the basis of cumulative
error.
CONCLUSION
¶88 For the foregoing reasons, we affirm Norton’s convictions
and the sentence imposed on him.
20150302-CA 47 2018 UT App 82