2020 UT App 72

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KAIN BLACKWING,

Appellant.

Opinion

No. 20170851-CA

Filed May 7, 2020

Third District Court, West Jordan Department

The Honorable Bruce C. Lubeck

No. 151401859

Andrew G. Deiss, John Robinson Jr., and Corey D. 

Riley, Attorneys for Appellant

Sean D. Reyes, and Kris C. Leonard, Attorneys

for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN

concurred.

APPLEBY, Judge:

¶1 Kain Blackwing was convicted of, among other things,

seven counts of rape. He appeals, contending there was

insufficient evidence to sustain his convictions on three of the 

counts. He also claims the district court erred when it did not 

grant a new trial after the jury was given allegedly prejudicial 

evidence in its deliberations. Because we conclude the State did 

not establish one of the rape offenses occurred in Utah, we 

reverse and vacate that conviction but affirm Blackwing’s

remaining convictions.
State v. Blackwing

20170851-CA 2 2020 UT App 72

BACKGROUND1

¶2 Seventeen-year-old T.S. began martial arts and survival 

training in early October 2013 under the tutelage of Blackwing, a 

man in his forties. Most of the training took place at Blackwing’s

house. The training began in a small group, but gradually it 

became one-on-one and increased in frequency. As T.S. began 

spending more time with Blackwing, he taught her about “Shen 

living,” telling her that he was “a Shen lord” and that “Shen can 

have multiple women.” In fact, Blackwing had two putative 

wives, who called him “My Lord.” After a few months of 

training, Blackwing told T.S. he knew she had feelings for him,

and he reciprocated those feelings. They kissed.

¶3 Approximately one week after the kiss, in March 2014, 

T.S. moved into the house that Blackwing shared with his two 

putative wives. T.S. was given an office room as a bedroom, but 

on her first night living in the house, she stayed in Blackwing’s 

bedroom and they had sexual intercourse for the first time. They 

had intercourse in March at least three more times.

¶4 One day in April 2014, while T.S. was at school, 

Blackwing called to tell her that the police raided his house and 

to warn her that an officer was going to the school to talk to her. 

Blackwing warned T.S. not to “betray” him and “reminded [her] 

that there was nothing going on,” that they “weren’t doing 

anything wrong,” and that she “had to watch what [she] said.”

The officer came to the school and T.S. agreed to follow him to 

the Division of Child and Family Services (DCFS) for an 

 

1. On appeal from a jury verdict, “we review the record facts in a 

light most favorable to the jury’s verdict and recite the facts 

accordingly,” presenting “conflicting evidence only as necessary 

to understand issues raised on appeal.” State v. Holgate, 2000 UT 

74, ¶ 2, 10 P.3d 346 (quotation simplified).
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20170851-CA 3 2020 UT App 72

interview. At DCFS, a detective asked T.S. if she and Blackwing 

“were engaging in any sexual activity,” to which she responded, 

“No.” Later that month, Blackwing took T.S. to Texas “to spend 

more time with [her] as his new wife.”

¶5 Several months later, as part of an unrelated case, T.S.

revealed her relationship with Blackwing to law enforcement. As 

a result, Blackwing was charged with, among other things, four 

counts of rape (counts 1, 2, 3, and 4) alleged to have occurred 

from March 9, 2014 through March 31, 2014 and three counts of 

rape (counts 5, 6, and 7) alleged to have occurred from April 1, 

2014 through May 13, 2014. The State’s theory was that T.S., 

because of her age and Blackwing’s position of special trust or

his enticement of her, was incapable of consenting to sexual 

intercourse.2

¶6 The case proceeded to a jury trial, and T.S. testified about

the sexual intercourse she and Blackwing had during the month 

of March. T.S. then said she and Blackwing had intercourse

“[m]ore than one time” in April, but after “the DCFS scare,” they 

“didn’t have sex . . . as much” and did not have intercourse in 

May 2014 until she turned eighteen later that month. When 

asked if she and Blackwing “ha[d] intercourse at any point after 

the DCFS [scare],” T.S. responded, “In Texas.” The State 

 

2. “An act of sexual intercourse [or] rape . . . is without consent 

of the victim under . . . the following circumstances: . . . the 

victim is younger than 18 years of age and at the time of the 

offense the actor . . . occupied a position of special trust in 

relation to the victim . . . ; [or] the victim is 14 years of age or 

older, but younger than 18 years of age, and the actor is more 

than three years older than the victim and entices or coerces the 

victim to submit or participate . . . .” Utah Code Ann. § 76-5-

406(10)–(11) (LexisNexis 2013); see also id. § 76-5-401.1(1)(c) 

(defining “position of special trust”).
State v. Blackwing

20170851-CA 4 2020 UT App 72

followed up by asking, “But after Texas, there was no 

intercourse?” T.S. responded, “Not that I can recall, no.”

¶7 Among other exhibits, the State introduced audio of 

telephone conversations between Blackwing and T.S. while 

Blackwing was incarcerated. Any mention of Blackwing’s 

incarceration was redacted from the audio.

¶8 After the State’s case-in-chief, Blackwing’s trial counsel 

moved for a directed verdict, arguing the State did not present

sufficient evidence to show lack of consent. The district court 

denied the motion. Blackwing did not put on a defense, and the 

case was submitted to the jury. The compact disc containing

Blackwing’s jailhouse telephone calls was among the exhibits 

sent with the jury for its deliberations.

¶9 The jury convicted Blackwing on all counts. Shortly after 

trial, the prosecutor realized that the compact disc that was 

given to the jury was labeled “Blackwing jail calls.” The 

prosecutor brought this oversight to the attention of Blackwing’s 

trial counsel, who, on October 3, 2017, moved the district court 

for a new trial, arguing the label on the disc substantially

prejudiced Blackwing’s right to a fair trial. Before the district 

court heard the motion, on October 16, 2017, Blackwing 

appealed his convictions, and this court remanded the case to 

the district court to rule on the motion for a new trial. After 

briefing and oral argument, the district court denied the motion,

finding Blackwing was not deprived of his right to a fair trial

and, because the district court brought the label to the parties’ 

attention prior to trial and the defense did not object at that time,

any error was invited. The case is now before us on appeal.

ISSUES AND STANDARDS OF REVIEW

¶10 Blackwing argues there was insufficient evidence that the 

State had jurisdiction over the charged offenses in counts 5, 6, 
State v. Blackwing

20170851-CA 5 2020 UT App 72

and 7. Although Blackwing did not preserve this issue below, 

“[c]riminal jurisdiction is a form of subject matter jurisdiction,” 

and we “may dismiss a criminal charge for lack of criminal 

jurisdiction at any time, regardless of whether the defendant 

raised the issue before or during trial.” State v. Holm, 2006 UT 31, 

¶ 96, 137 P.3d 726.3 “Whether the district court had criminal 

jurisdiction is a question of law, which we review for 

correctness.” State v. Mills, 2012 UT App 367, ¶ 13, 293 P.3d 1129.

¶11 Blackwing also claims the district court erred when it 

denied his motion for a new trial. When we have jurisdiction to 

do so, we review a district court’s ruling on a motion for a new 

trial for abuse of discretion. State v. Pinder, 2005 UT 15, ¶ 20, 114 

P.3d 551.

ANALYSIS

I. Jurisdiction Over the Charged Offenses

¶12 Blackwing argues there was insufficient evidence for the 

jury to convict him of rape on counts 5, 6, and 7. Specifically, he 

contends the district court did not have jurisdiction over the 

charged offenses in those counts because the State did not 

establish that the acts of sexual intercourse occurred in Utah 

between April 1, 2014 and May 13, 2014. We conclude the State 

failed to establish one of those offenses occurred in Utah during 

this timeframe.

¶13 A person may be prosecuted for a crime in Utah if “the 

offense is committed either wholly or partly within the state.” 

 

3. Alternatively, Blackwing urges us to reach this issue through 

the lens of an ineffective-assistance-of-counsel claim. Because we 

resolve the matter based on jurisdiction, we do not address this 

argument further.
State v. Blackwing

20170851-CA 6 2020 UT App 72

Utah Code Ann. § 76-1-201(1)(a) (LexisNexis 2017); see also State 

v. Mills, 2012 UT App 367, ¶ 32, 293 P.3d 1129. Although 

jurisdiction is not technically an element of the crime, the State 

must establish the existence of jurisdiction by a preponderance 

of the evidence. Utah Code Ann. § 76-1-501(3); State v. Ireland, 

2006 UT 17, ¶ 9, 133 P.3d 396; see also Nevares v. M.L.S., 2015 UT 

34, ¶ 32 n.4, 345 P.3d 719 (“Jurisdiction is a matter that must be 

proven by the prosecution under the Utah criminal code.” 

(quotation simplified)). In other words, the State must have 

established that it “[wa]s more likely than not” that Blackwing 

and T.S. had sexual intercourse in Utah three times between 

April 1, 2014 and May 13, 2014. See V.M. v. Division of Child 

& Family Services, 2020 UT App 35, ¶ 21 (quotation simplified).

¶14 T.S. testified that she and Blackwing did not have sex at 

all in May 2014 until she turned eighteen, so each rape charged 

in counts 5, 6, and 7 must have occurred in April 2014. The 

relevant evidence pertaining to these charges was T.S.’s 

testimony that (1) she and Blackwing had sex “[m]ore than one 

time” in April, (2) DCFS raided the house and questioned T.S.

sometime that month, (3) after the DCFS raid they had 

intercourse only in Texas, and (4) after they returned to Utah 

from Texas, she could not recall whether they had intercourse. 

Although Blackwing contends this evidence is insufficient to 

establish that any of the three rape charges from counts 5, 6, and 

7 took place in Utah in the specified timeframe, other evidence 

supports a reasonable inference that at least two instances of 

sexual intercourse in April took place in Utah. Specifically, T.S. 

testified that her Shen instruction continued through the month 

of April and included “how to please [Blackwing] sexually,” that 

one of the “thing[s] [Blackwing] like[d] the most [wa]s sex,” and 

that the office room she was given as a bedroom was used as a 

“cover” in case there were visitors to the house. Further, viewing 

T.S.’s testimony in the order and context it was given, it could be 

readily inferred that the April incidents of intercourse occurred 

before the DCFS visit and the trip to Texas.
State v. Blackwing

20170851-CA 7 2020 UT App 72

¶15 Although the State argues this is enough to create a 

reasonable inference that three acts of sexual intercourse 

occurred in Utah between April 1 and the time when DCFS 

raided the house, we disagree. The above evidence reasonably 

supports the conclusion that two instances of sexual intercourse 

occurred in Utah in April 2014. The phrase “[m]ore than one 

time,” to which T.S. testified, necessarily supports a reasonable 

inference that there were at least two instances of sexual 

intercourse in April, before the trip to Texas. But although 

“[m]ore than one time” can certainly mean three, four, five, or 

fifty, such a conclusion, without more specific evidence,

impermissibly “rest[s] on mere speculation.” See State v. Pullman, 

2013 UT App 168, ¶ 14, 306 P.3d 827. In short, the State did not 

establish that it was “more likely than not” that Blackwing and 

T.S. engaged in sexual intercourse more than two times in Utah 

between April 1 and May 13, 2014, see V.M., 2020 UT App 35, 

¶ 21 (quotation simplified), and we must therefore vacate count 

7 on jurisdictional grounds.

II. Motion for a New Trial

¶16 Blackwing next argues the district court erred when it 

denied his motion for a new trial. But we do not have 

jurisdiction over this claim. Blackwing filed the motion for a new 

trial on October 3, 2017. And on October 16, 2017, while the 

motion was pending, Blackwing filed a notice of appeal. This 

court remanded the case for the district court to resolve the 

pending motion for a new trial, which it resolved in November 

2018. But Blackwing did not file a new notice of appeal or an 

amended notice of appeal as required under the Utah Rules of 

Appellate Procedure. See Utah R. App. P. 4(b)(2) (“A notice of 

appeal filed after announcement or entry of judgment, but before 

entry of an order disposing of [a motion for a new trial], shall be 

treated as filed after entry of the order and on the day thereof, 

except that such a notice of appeal is effective to appeal only 

from the underlying judgment.”). “To appeal from a final order 
State v. Blackwing

20170851-CA 8 2020 UT App 72

disposing of” a motion for a new trial, “a party must file a notice 

of appeal or an amended notice of appeal.” Id. (emphasis added). 

Because Blackwing failed to comply with this requirement, we 

lack jurisdiction over the issue and cannot reach it. See, e.g., State 

v. Mackin, 2012 UT App 199, ¶¶ 7–9, 283 P.3d 997 (concluding 

this court lacked jurisdiction when the defendant “did not file a 

new or amended notice of appeal from the district court’s denial 

of his new trial motion”).4

CONCLUSION

¶17 We reverse and vacate Blackwing’s conviction of rape on 

count 7 because the State did not establish that the sexual

intercourse occurred in Utah, thereby depriving it of jurisdiction. 

And because we have no jurisdiction over Blackwing’s appeal of 

the district court’s denial of his motion for a new trial, we do not 

reach that issue.

 

4. Citing Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, 199 

P.3d 957, Blackwing argues that because the State has not been 

prejudiced by this jurisdictional failure, we should decide this 

argument on its merits. But Kilpatrick gives us no such authority. 

Kilpatrick instructs us to liberally construe a notice of appeal 

where it “sufficiently identifies the final judgment at issue and

the opposing party is not prejudiced.” Id. ¶ 14 (emphasis added) 

(quotation simplified). It does not allow us to excuse a failure to 

file a notice of appeal from a final order simply because 

prejudice may be lacking.