2018 UT App 194

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BRIAN NEWTON,

Appellant.

Opinion

No. 20170205-CA

Filed October 12, 2018

Third District Court, Salt Lake Department

The Honorable Paul B. Parker

No. 121905738

Ronald J. Yengich, Attorney for Appellant

Sean D. Reyes and Jeanne B. Inouye, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN

concurred.

TOOMEY, Judge:

¶1 A jury convicted Brian Newton of one count of 

first-degree aggravated sexual assault and one count of 

third-degree aggravated assault. After trial, Newton obtained 

new counsel and filed a motion to arrest judgment and for a new 

trial (the Motion for New Trial), claiming a jury instruction error, 

a Brady1 violation related to Victim’s cell phone, and four 

 

1. Brady v. Maryland, 373 U.S. 83, 86–87 (1963) (“[T]he 

suppression by the prosecution of evidence favorable to an 

accused upon request violates [the Due Process Clause of the 

Fourteenth Amendment] where the evidence is material either to 

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State v. Newton

20170205-CA 2 2018 UT App 194

instances of ineffective assistance of trial counsel. The district 

court denied the Motion for New Trial. We agree with the 

district court that there was no error in the jury instruction, that 

the State did not commit a Brady violation, and that the evidence 

on Victim’s phone was neither material nor exculpatory. Because 

Newton fails to address the district court’s ruling on the

remaining ineffective assistance of counsel claims, we decline to 

address them on appeal. Accordingly, we affirm.

BACKGROUND

¶2 Victim attended a party at a friend’s house where she met 

Newton and his girlfriend.2 Everyone at the party had been 

consuming alcohol. Victim spoke with Newton at the party but 

felt uncomfortable around him, at first, and told him that she 

thought “he was weird and creepy.” But he was “nice after that.”

¶3 The party continued through the early morning hours of 

the following day. At around 3:00 a.m., Newton asked Victim if 

she wanted to leave and get something to eat. Victim agreed, 

stating that she “didn’t want to fall asleep” because she was 

waiting for her boyfriend. Newton first drove Victim to a fast 

food restaurant where Newton ordered food. He then drove 

Victim to a truck stop and parked in a dark part of the parking 

lot, away from other vehicles.

 

(...continued)

guilt or to punishment, irrespective of the good faith or bad faith 

of the prosecution.”).

2. “On appeal, we review the record facts in a light most 

favorable to the jury’s verdict and recite the facts accordingly. 

We present conflicting evidence only as necessary to understand 

issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 

346 (quotation simplified).
State v. Newton

20170205-CA 3 2018 UT App 194

¶4 Newton and Victim listened to music for a while, and 

then he exited the vehicle, opened Victim’s door, leaned her seat 

back, and got on top of her. Victim testified that she did not say 

anything at first but thought to herself, “What’s going on.” 

Newton “[f]orcibly” removed all of Victim’s clothing and 

undergarments while she was “screaming and crying and 

pushing him.” Newton put his hand around her neck and 

choked her to the point that she felt she was “going to lose 

consciousness” and then raped her. He first penetrated his penis 

into her vagina and then attempted to penetrate his penis into 

her anus but was unsuccessful because she “freaked out even 

more.” Newton then grabbed a gun, held it to her head, and 

continued to rape her vaginally while she “cr[ied] quietly.”

¶5 At one point, Victim said she needed to throw up. After

Newton rolled down the window, she attempted to make loud 

retching noises to get the attention of anyone who might be 

nearby. She did not try to scream or call for help while the 

window was rolled down, because she feared that Newton 

would shoot her. Victim’s efforts to summon assistance were 

unsuccessful. After ejaculating, Newton returned to the driver’s 

side of the vehicle and Victim dressed. Newton drove away from 

the truck stop and told Victim that “he had to make a phone call 

to a friend to see if he had to kill [her] or not.” When he slowed 

down at a red light, Victim jumped out and ran barefoot to the 

nearest neighborhood she could find, leaving her cell phone in 

the vehicle.

¶6 Victim eventually arrived at a gas station where a man 

offered to help by giving her a ride. Although Victim did not 

know the man, Victim felt “scatterbrained” and “needed help,” 

so she accepted his offer, and he drove her to her friend’s house.

When Victim arrived at the friend’s house the police were 

already there. Victim explained to an officer that Newton raped 

her and threatened her with a gun. The officer told her to go to 

the hospital for a sexual assault examination.
State v. Newton

20170205-CA 4 2018 UT App 194

¶7 During the examination, the sexual assault nurse

examiner (Nurse) swabbed Victim’s vagina, mouth, and belly 

button to collect DNA, which matched Newton’s DNA. Nurse 

also took photographs of Victim’s body. One photograph 

revealed a petechia—redness of the skin caused by pressure, 

either sucking or pushing—on Victim’s trachea, which is an

injury “consistent with strangulation.” The other photographs 

included: three injuries on Victim’s breasts and one on the front 

of a shoulder, marked by redness and a petechia; a bruise on the 

inside of an elbow and one on a forearm; numerous bruises and 

a petechia on her thighs; bruises on her knees and an ankle; and 

a blister on her heel “from walking barefoot after the assault.”3

Nurse also examined Victim’s genital injuries and noted bruises 

and an open abrasion in and around her labia. At trial, Nurse 

testified that there was also a “little chunk of skin” missing in a 

location where “[a]nybody who had [sustained] an injury like 

that consensually would be [the result of] an accident and . . . 

[i]ntercourse would be stopped by the woman because it would 

be very painful.” Nurse also testified that the injuries could be

“consistent with non-consensual intercourse,” but she also 

conceded that “regardless of how careful you are, there can be 

some sort of injuries sometimes during consensual intercourse.”

¶8 Newton testified in his defense at trial. He said that, at the 

party, Victim “asked [him] if [he] wanted to go get something to 

eat.” He agreed and escorted her to his car where he “checked 

for [his] concealed carry [gun] because [he] wouldn’t want it to 

be missing and be used in a possible crime.” Newton kept his 

gun in a safe under his seat that requires a “four to six entry 

combination” to open. He then drove Victim to a fast food 

restaurant. After picking up his order, they returned to his car 

and he started to drive away. He testified that when he “reached 

 

3. During the examination, Victim stated that one of the bruises 

on her right thigh existed before the assault.
State v. Newton

20170205-CA 5 2018 UT App 194

back to put [his] hand on [her] headrest,” she put her hand on 

his leg and “proceeded to move her hand up . . . [and] started to 

undo [his] pants.” Newton decided to pull over into a parking 

lot. Victim began to stroke his penis and then they started to kiss.

According to Newton, Victim “climbed over on top of [him] in 

the driver’s seat” and they removed their clothes.

¶9 According to Newton, while engaging in sexual 

intercourse, Victim bumped the horn on the steering wheel, and 

they both agreed to move to the passenger seat. Newton 

described different sexual positions they used, including being 

on top of and behind Victim. At one point, Victim said she 

needed to throw up. Newton rolled down the window and

heard some retching noises after which Victim said she felt fine.

He testified they both put their clothes back on after having sex 

and he drove Victim to her house. Newton testified that Victim 

“passed out” during the drive. When he got to her house, he left 

Victim sitting on a wooden bench on the porch. He also testified 

that he never removed the gun from the safe and the only time 

Victim could have seen it was when he “opened the safe to 

check” that it was still there.

¶10 The jury convicted Newton of one count of first-degree 

aggravated sexual assault and one count of third-degree 

aggravated assault. He was acquitted of a second count of 

first-degree aggravated sexual assault and one count of

first-degree aggravated kidnapping.

¶11 Following the convictions, Newton hired new counsel 

who filed the Motion for New Trial. Newton argued that his

original trial counsel rendered ineffective assistance by failing to 

object to the jury instruction defining rape.4 He also argued that 

 

4. Newton raised numerous other ineffective assistance of 

counsel claims in the Motion for New Trial, but as we discuss in 

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State v. Newton

20170205-CA 6 2018 UT App 194

the State committed a Brady violation when it did not conduct a 

forensic examination of Victim’s cell phone.

¶12 The court first addressed the jury instruction claim. The 

jury was instructed that to convict Newton of aggravated sexual 

assault, the jury was required to find:

1. The defendant, BRIAN NEWTON,

2. In the course of committing rape,

3. Did any one of the following:

a. Used, or threated [Victim] with the use of, 

a dangerous weapon, or

b. Compelled, or attempted to compel, 

[Victim] to submit to rape, by threat of 

kidnapping, death, or serious bodily injury 

to be inflicted imminently on any person; 

and

4. The defendant acted intentionally, knowingly, or 

recklessly.

 

(...continued)

greater detail below, see infra ¶¶ 19–20 & n.8, we are precluded 

from reaching those arguments and therefore do not articulate 

the factual circumstances relevant to them. We note, however, 

that any remedy Newton might have for his argument that he 

did not receive a fair trial because he was not represented by the 

specific attorney his father hired on his behalf does not lie with 

this court. Especially considering the district court’s conclusions 

that the attorney who represented Newton at trial was not 

constitutionally ineffective on any claim Newton raised and the 

court did not find credible the testimony of Newton’s father.
State v. Newton

20170205-CA 7 2018 UT App 194

The next instruction read: “‘Rape’ as defined in the law means 

the actor knowingly, intentionally, or recklessly has sexual 

intercourse with another without that person’s consent.”

¶13 Newton argued that State v. Barela, 2015 UT 22, 349 P.3d 

676, “compel[led the] court to find [his] trial counsel ineffective 

for failing to object to the jury instruction given on the elements 

of the crime of Rape because [it] did not clearly establish the 

requirement of mens rea as to [Victim’s] non consent.” But the 

court disagreed, distinguishing the rape instruction in Barela

from the instruction given at Newton’s trial. It explained that, 

because the instruction was one sentence long and the terms 

“knowingly, intentionally or recklessly . . . immediately 

precede[d] words describing the prohibited conduct, sexual 

intercourse with another person without that person’s consent,”

“[t]here [was] no room for the jury to imply a difference between 

the act of intercourse and the non-consent of [Victim].” 

Accordingly, the court concluded that trial counsel was not 

constitutionally ineffective for failing to object to the instruction

and that the district court did not commit plain error when it 

gave the rape instruction to the jury.

¶14 The court also considered Newton’s Brady claim. In 

support of his argument that the State committed a Brady

violation, Newton directed the court to his pretrial motion for 

access to Victim’s cell phone “for the purpose of a forensic 

examination,” asserting that the cell phone “may have 

exculpatory evidence contained within it” and may undermine 

the jury’s verdict. The State opposed the motion, arguing that 

“the State is not aware of evidence contained on the phone that 

‘tends to negate the guilt of the accused, mitigate the guilt of the 

defendant, or mitigate the degree of the offense for reduced 

punishment.’” (Quoting Utah R. Crim. P. 16(a)(4).) The State 

further noted that Newton did not show “good cause” to 

authorize the search of Victim’s cell phone because the motion

was based on Newton’s “naked belief that the phone ‘may have 
State v. Newton

20170205-CA 8 2018 UT App 194

exculpatory evidence contained within it.’” (Quoting Utah R. 

Crim. P. 16(a)(5).) The police did not conduct a forensic

examination of Victim’s cell phone, but the State provided 

trial counsel with the “call and text records” obtained from 

it. Following the Motion for New Trial, the court determined 

that the content of the phone and its condition when found

were relevant to Newton’s post-trial claims and ordered a 

“full forensic examination of the cell phone.”

¶15 The forensic analysis revealed that Victim 

entered Newton’s name and cell phone number into her 

phone at around 3:09 a.m., shortly after they left the party and 

prior to the rape.5 It also revealed a “series of phone calls 

and text messages that were received” during the period 

between their departure from the party and the rape. Following 

an evidentiary hearing, the court determined that the cell 

phone evidence was neither material nor exculpatory, because 

the jury could have interpreted it to mean that Victim had 

“no bias” against Newton prior to the rape, and because 

the “information found on the phone also corroborated 

the testimony that friends were trying to reach [Victim] for 

hours without success.” The court concluded that the “evidence 

found on [Victim’s] phone post-trial was unlikely to 

have affected the verdict” given that “the evidence 

against [Newton] was substantial” and that the 

forensic examination of the cell phone corroborated Victim’s 

testimony.

¶16 The court therefore denied the Motion for New Trial. 

Newton appeals.

 

5. A surveillance video of the fast food restaurant showed that 

Newton and Victim entered the restaurant around 3:00 a.m., that 

Victim was seen using her cell phone, and that Victim and 

Newton left together at around 3:09 a.m.
State v. Newton

20170205-CA 9 2018 UT App 194

ISSUES AND STANDARDS OF REVIEW

¶17 Newton contends the “jury was improperly instructed 

regarding the mens rea element of rape” and asks this court to 

review this issue for plain error, manifest injustice, and 

ineffective assistance of counsel. Newton raised this issue before 

the district court in the Motion for New Trial, based on the 

ineffective assistance of counsel. We therefore review Newton’s 

argument only to the extent he challenges the district court’s 

ruling. 6 See Allen v. Friel, 2008 UT 56, ¶ 4, 194 P.3d 903 (affirming 

the district court’s decision because the defendant “ignored one 

of the most fundamental principles of the appellate process 

when he did not identify any flaws in the district court’s order 

that required reversal”); cf. Ellis v. State, 2014 UT App 50, ¶ 5, 321 

P.3d 1174 (per curiam) (“Because an appellate court reviews the 

decision of a [district] court, an appellant must address the 

rationale of the [district] court’s rulings and identify why the 

ruling should be overturned.”). When the district court “has 

previously held an evidentiary hearing on a motion based on 

ineffective assistance of counsel, such a claim presents a mixed 

question of law and fact.” State v. Burnside, 2016 UT App 224, 

¶ 18, 387 P.3d 570 (quotation simplified). We therefore “review 

the district court’s factual findings for clear error and its legal 

conclusions for correctness.” Id.

 

6. To the extent Newton argues that we should review this issue 

under the rubrics of plain error and manifest injustice, those 

arguments fail. “[I]n most circumstances manifest injustice is 

synonymous with plain error,” and to succeed on a claim of 

plain error, Newton “must establish harmful error that should 

have been obvious to the [district] court.” State v. Reigelsperger, 

2017 UT App 101, ¶ 39, 400 P.3d 1127. Because we conclude that 

there was no error in the rape jury instruction, see infra ¶ 29, 

Newton cannot prevail under the rubric of plain error.
State v. Newton

20170205-CA 10 2018 UT App 194

¶18 Newton also contends the State “failed to pursue and 

disclose material evidence from [Victim’s] cell phone,” which he 

argues amounted to a Brady violation. Because this issue was 

raised before the district court, we review the district court’s 

“factual findings for clear error and its legal conclusions for 

correctness.” Id. Relatedly, Newton contends the district court 

erroneously determined the evidence located on Victim’s cell 

phone was not material and exculpatory and therefore erred in 

denying the Motion for New Trial on that basis.7 When the

district court denies a motion to arrest judgment and for a new 

trial, we review that decision for an abuse of discretion, but “we 

review the legal standards applied by the [district] court in 

denying such a motion for correctness.” State v. Montoya, 2017 

UT App 110, ¶ 11, 400 P.3d 1193 (quotation simplified).

¶19 Finally, Newton contends his trial counsel was ineffective 

for failing to (1) “object to inadmissible prejudicial testimony,”

(2) “investigate,” and (3) “adequately prepare for trial.” Newton 

raised these claims of ineffective assistance of counsel before the 

district court. The court held evidentiary hearings on these 

allegations and issued an order denying Newton’s motion,

supported with findings of fact and conclusions of law.

¶20 On appeal, Newton makes the same three arguments, 

without challenging the court’s findings of fact or conclusions of 

law. “When a claim of ineffective assistance of counsel is raised 

for the first time on appeal, there is no lower court ruling to 

 

7. Newton also argues that the “cumulative errors require a new 

trial.” “Under the cumulative error doctrine, we will reverse 

only if the cumulative effect of the several errors undermines our 

confidence that a fair trial was had.” State v. Dunn, 850 P.2d 1201, 

1229 (Utah 1993) (quotation simplified). Because we conclude 

that no error occurred, see infra ¶¶ 29, 34, 37, the cumulative 

error doctrine does not apply.
State v. Newton

20170205-CA 11 2018 UT App 194

review and we must decide whether the defendant was 

deprived of the effective assistance of counsel as a matter of 

law.” State v. Craft, 2017 UT App 87, ¶ 15, 397 P.3d 889 

(quotation simplified). But Newton does not raise these issues 

for the first time on appeal. Instead, he asserts the same 

arguments that the district court ruled on. The issues before us 

are therefore mixed questions of law and fact, and “we review 

the district court’s factual findings for clear error and its legal 

conclusions for correctness.” Burnside, 2016 UT App 224, ¶ 18

(quotation simplified). To succeed on appeal, Newton

necessarily must challenge the district court’s factual findings 

and conclusions of law, and he cannot make the same arguments 

anew while ignoring the proceedings below that adjudicated the 

same issues.8 See id. ¶¶ 42–43. Because Newton “has failed to 

 

8. A situation in which a defendant argues ineffective assistance 

of counsel in post-trial motions before the district court is similar 

to petitions for post-conviction relief based on ineffective 

assistance of counsel. These motions and petitions are filed with 

the district court and the district court generally rules on them 

with supportive findings of fact and conclusions of law. In 

appeals from the denial of a petition for post-conviction relief, 

the defendant must challenge the rationale for the district court’s 

ruling to demonstrate error in that ruling. See Ellis v. State, 2014 

UT App 50, ¶ 5, 321 P.3d 1174 (per curiam). We see no difference 

in a defendant’s burden on appeal when the district court has 

adjudicated the same claim of ineffective assistance of counsel in 

a post-trial motion for a new trial. Compare Archuleta v. Galetka, 

2011 UT 73, ¶ 25, 267 P.3d 232 (explaining that, in the context of 

post-conviction relief, “when confronted with ineffective 

assistance of counsel claims, we review a lower court’s purely 

factual findings for clear error, but we review the application of 

the law to the facts for correctness” (quotation simplified)), with

State v. Burnside, 2016 UT App 224, ¶ 18, 387 P.3d 570 (“In a 

situation . . . in which the [district] court has previously held an 

(continued...)
State v. Newton

20170205-CA 12 2018 UT App 194

address (or even acknowledge) the [district] court’s decision on 

the[se] issue[s],” see id. ¶ 42, he cannot meet his burden of 

persuasion on appeal and we therefore do not further address 

them, see Ellis, 2014 UT App 50, ¶ 5.

ANALYSIS

I. The Jury Instruction

¶21 Newton contends the district court erred in determining 

that trial counsel was not constitutionally ineffective for failing 

to object to the rape jury instruction and in denying the Motion 

for New Trial on that basis. He argues that the court erred in 

determining the rape instruction was correct because the 

instruction was one sentence that did not separate the mens rea 

from the acts required to commit rape. The instruction read: 

“‘Rape’ as defined in the law means the actor knowingly, 

intentionally, or recklessly has sexual intercourse with another 

without that person’s consent.” He asserts that the instruction 

did not provide that “knowingly, intentionally, or recklessly” 

applied to “the element of non-consent” and counsel should 

therefore have objected to it. We disagree.

¶22 To succeed on a claim of ineffective assistance of counsel, 

a defendant must demonstrate “(1) that counsel’s performance 

was objectively deficient, and (2) a reasonable probability exists 

that but for the deficient conduct defendant would have 

obtained a more favorable outcome at trial.” State v. Clark, 2004 

UT 25, ¶ 6, 89 P.3d 162; see also Strickland v. Washington, 466 U.S. 

 

(...continued)

evidentiary hearing on a motion based on ineffective assistance 

of counsel . . . we review the district court’s factual findings for 

clear error and its legal conclusions for correctness.” (quotation 

simplified)).
State v. Newton

20170205-CA 13 2018 UT App 194

668, 687 (1984). When the defendant fails to make a sufficient 

showing on one of the Strickland prongs, we need not address 

both of them. See State v. Veale, 2012 UT App 131, ¶ 5, 278 P.3d 

153. Because Newton fails to demonstrate that trial counsel 

performed deficiently, we do not address the prejudice prong.

¶23 To demonstrate that trial counsel performed deficiently, 

Newton “must overcome the strong presumption that his trial 

counsel rendered adequate assistance by persuading the court 

that there was no conceivable tactical basis for counsel’s 

actions.” Clark, 2004 UT 25, ¶ 6 (quotation simplified). “It is well 

settled that counsel’s performance at trial is not deficient if 

counsel refrains from making futile objections, motions, or 

requests.” State v. Perez-Avila, 2006 UT App 71, ¶ 7, 131 P.3d 864. 

Newton therefore must demonstrate that counsel’s objection to 

the rape instruction would not have been futile.

¶24 Here, the district court determined that the jury 

instruction defining the elements of rape was “not incorrect and 

therefore [did] not provide a basis for a claim of ineffective 

assistance of counsel.” The court rejected Newton’s argument 

that the jury instruction defining rape was similar to the 

erroneous instruction in State v. Barela, 2015 UT 22, 349 P.3d 676. 

We likewise conclude that the jury instruction in Barela is 

distinguishable from the instruction given at Newton’s trial.

¶25 In Barela, the jury was instructed that to find Barela guilty 

of rape it would have to find:

1. The defendant, Robert K. Barela,

2. Intentionally or knowingly;

3. Had sexual intercourse with K.M.;

4. That said act of intercourse was without the 

consent of K.M.
State v. Newton

20170205-CA 14 2018 UT App 194

Id. ¶ 13. The Barela court held that the “instruction was in error” 

because it “implied that the mens rea requirement . . . applied

only to the act of sexual intercourse, and not to [the victim’s] 

nonconsent . . . by coupling the mens rea requirement directly 

with the element of sexual intercourse, and by articulating the 

element of [the victim’s] nonconsent without any apparent 

counterpart requirement of mens rea.” Id. ¶ 26. Further, the 

erroneous instruction “was reasonably likely to have affected the 

verdict” because “even in [the victim’s] account, she never 

explicitly (in words) or openly (in physical resistance) rebuffed 

Barela’s advances.” Id. ¶¶ 28–29. The victim’s account of the 

alleged rape was also inconsistent over time. See id. ¶ 11.

¶26 Here, the jury instruction provided: “‘Rape’ as defined in 

the law means the actor knowingly, intentionally, or recklessly 

has sexual intercourse with another without that person’s 

consent.” Unlike in Barela, the instruction did not separate the 

mens rea from the act or the element of non-consent. In addition, 

the Utah Code provides that “[a] person commits rape when the 

actor has sexual intercourse with another person without the 

victim’s consent.” Utah Code Ann. § 76-5-402(1) (LexisNexis 

2017). Our legislature has provided that “when the definition of 

[a criminal] offense does not specify a culpable mental state and 

the offense does not involve strict liability, intent, knowledge, or 

recklessness shall suffice to establish criminal responsibility.” Id.

§ 76-2-102. The application of the required culpable mental state 

of “intent, knowledge, or recklessness” to section 76-5-402’s 

definition of rape results in the rape instruction provided to the 

jury. We are therefore unpersuaded by Newton’s argument that,

because “the jury was not law-trained,” “it [was] unrealistic for 

counsel, or the court, to assume that the jury would know based 

on the one sentence instruction, that mens rea was also required 

for the element of non-consent.”

¶27 To further support our conclusion that the jury instruction 

properly informed the jury of the necessary elements of rape, we 
State v. Newton

20170205-CA 15 2018 UT App 194

refer to the jury instruction for rape given in State v. Marchet, 

2009 UT App 262, 219 P.3d 75. In that case, the jury was 

instructed that it could convict the defendant of rape if it found:

1. . . . [the defendant] had sexual intercourse with 

[the victim]; and

2. That said act of intercourse was without the 

consent of [the victim]; and

3. That the defendant acted intentionally or 

knowingly or recklessly.

Id. ¶ 21. The defendant challenged the instruction, arguing that it 

“[did] not adequately inform the jury that the State had the 

burden of proving his mental state with regard to each element 

of the crime of rape.” Id. Specifically, he argued that the 

instruction “did not require the jury to find any mental state on 

[the defendant’s] part with regard to [the victim’s] consent or 

lack thereof.” Id. (quotation simplified). This court disagreed, 

explaining that the Utah Code “defines the crime of rape as 

consisting of two elements: (1) the act of sexual intercourse 

(2) committed without the other person’s consent.” Id. ¶ 22. It 

further explained that, under the Utah Code, the defendant 

could not be convicted of rape unless he acted intentionally, 

knowingly, or recklessly. Id. The rape instruction therefore 

“accurately identified each element of the crime of rape and 

correctly stated the applicable mental state” because the jury was

instructed that to convict the defendant of rape it “must find 

beyond a reasonable doubt that he intentionally, knowingly, or 

recklessly had nonconsensual sexual intercourse with [the 

victim].” Id.

¶28 The jury instruction in Newton’s case is more similar to 

the instruction provided in Marchet than to the one provided in 

Barela. In addition, it is even less likely that the jury in Newton’s 

case misinterpreted the elements necessary to find that he raped 
State v. Newton

20170205-CA 16 2018 UT App 194

Victim than the jury in Marchet. Rather than providing the 

culpable mental state as a catch-all at the end of the instruction,

see id. ¶ 21, Newton’s instruction seamlessly provided that the 

applicable mens rea applied to both the act of sexual intercourse 

and Victim’s non-consent.

¶29 We agree with the district court that there was no error in 

the jury instruction and therefore there was “no room for the 

jury to imply a difference between the act of intercourse and the 

non-consent of [Victim].” As a result, any objection on trial 

counsel’s part would have been futile and Newton’s claim of 

ineffective assistance of counsel with respect to the jury 

instruction fails.

II. The Brady Violation

¶30 Newton contends the district court erroneously denied 

the Motion for New Trial because (1) the State violated its 

“affirmative duty to seek out exculpatory evidence, and turn such 

evidence over to the defendant,” and (2) the court erred in 

determining that the evidence collected from Victim’s cell phone 

was not material and exculpatory. On his first point, he argues 

that Victim’s cell phone was a critical piece of evidence that was 

alluded to throughout trial and that the State was “obligate[d]” 

to review the evidence that it may have contained. On his second 

point, he asserts that the evidence collected from Victim’s cell 

phone was material and exculpatory because it “directly 

contradict[ed] [Victim’s testimony] and undermine[d] her 

credibility.” We address each argument in turn.

¶31 “[T]he suppression by the prosecution of evidence 

favorable to an accused upon request [by the defense] violates 

due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the 

prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Further, 

“regardless of request, favorable evidence is material, and 

constitutional error results from its suppression by the 
State v. Newton

20170205-CA 17 2018 UT App 194

government, if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different.” Kyles v. Whitley, 514 U.S. 

419, 433 (1995) (quotation simplified).

¶32 First, Newton argues the State committed a Brady

violation when it failed to conduct a forensic examination of 

Victim’s cell phone once it had been turned over to the police. 

He cites Kyles in support of this argument. But his reliance on 

Kyles is misplaced. There, the United States Supreme Court 

explained that the prosecution has “a degree of discretion” when 

determining “materiality in terms of the cumulative effect of 

suppression” of evidence. Id. at 437. But this discretion has “a 

corresponding burden.” Id. Because the prosecution “alone can 

know what is undisclosed, [it] must be assigned the consequent 

responsibility to gauge the likely net effect of all such evidence 

and make disclosure when the point of ‘reasonable probability’ 

is reached.” Id. “This in turn means that the individual 

prosecutor has a duty to learn of any favorable evidence known

to the others acting on the government’s behalf in the case, 

including the police.” Id. (emphasis added).

¶33 The evidence on Victim’s cell phone was unknown to the 

prosecution or any other person “acting on the government’s 

behalf in [this] case.” See id. Before trial, the State opposed 

Newton’s motion to discover Victim’s cell phone “for the 

purpose of a forensic examination,” arguing that “the State [was]

not aware of evidence contained on the phone that ‘tends to 

negate the guilt of the accused, mitigate the guilt of the 

defendant, or mitigate the degree of the offense for reduced 

punishment.’” (Quoting Utah R. Crim. P. 16(a)(4).) The State 

further argued that Newton did not show “good cause” to 

authorize the search of Victim’s cell phone because the motion 

was based on Newton’s “naked belief that the phone may have 

exculpatory evidence contained within it.” See Utah R. Crim. P. 

16(a)(5). And at a post-trial evidentiary hearing, the prosecutor 
State v. Newton

20170205-CA 18 2018 UT App 194

testified that he “had no idea of anything that was on the 

phone,” either inculpatory or exculpatory, and that he never 

directed anyone to “look into what was on the phone.”

¶34 The prosecutor therefore did not have knowledge of the 

forensic evidence of the cell phone, and the record does not 

reflect that Newton elicited evidence that the prosecutor or any 

other individual working for the State should have known there 

was exculpatory evidence on the cell phone. See Kyles, 514 U.S. at 

437 (explaining that prosecutors have “a duty to learn of any 

favorable evidence known to the others acting on the 

government’s behalf in the case, including the police” (emphasis 

added)). And none of the cases Newton cites require the 

prosecution to “seek out” exculpatory information unknown to 

it or any others acting on its behalf. We therefore reject Newton’s 

argument that, “once the police were in possession of [Victim’s] 

cell phone, . . . the State had a constitutional obligation to seek 

out any evidence that was on the phone, regardless of whether it 

thought that the phone would contain anything of value.” We 

conclude that the State did not commit a Brady violation when it 

did not independently conduct a forensic examination of 

Victim’s cell phone.

¶35 Second, Newton argues that the district court erred when 

it determined that the evidence collected from Victim’s cell 

phone was not material and exculpatory.

¶36 The district court determined that the evidence on 

Victim’s cell phone was relevant to Newton’s claim of ineffective 

assistance of counsel. It therefore granted Newton’s post-trial 

motion to discover Victim’s cell phone and ordered a forensic 

examination to determine whether it contained exculpatory 

evidence. The examination revealed that Victim entered 

Newton’s name and cell phone number into her phone after 

leaving the party, but prior to the rape, and that her phone 

received a series of unanswered phone calls and text messages. 
State v. Newton

20170205-CA 19 2018 UT App 194

The court concluded this evidence was the information was not 

material and exculpatory and was “unlikely to have affected the 

verdict,” because it could show only that Victim had “no bias” 

against Newton prior to the rape, and it corroborated Victim’s 

account that her friends unsuccessfully attempted to contact her 

during the incident.

¶37 Newton challenges this conclusion. He relies on the 

assertion that the evidence that Victim entered his phone 

number into her cell phone just before the rape undermined her 

credibility because she testified that he was “weird and creepy.” 

But Victim also testified on direct and cross-examination that 

after telling Newton that she thought he was “weird and 

creepy,” “he was nice after that.” In addition, Newton fails to 

explain how entering his phone number before the rape would 

have “provided circumstantial evidence of consent.” We 

therefore conclude the district court did not err in denying the 

Motion for New Trial after determining that the evidence on 

Victim’s cell phone was not material and exculpatory.

CONCLUSION

¶38 We conclude that because the jury instruction defining 

rape accurately articulated the elements of the crime, any 

objection to the instruction would have been futile and Newton 

therefore cannot show ineffective assistance of counsel. We 

further conclude the State did not commit a Brady violation, 

because it did not have knowledge that the cell phone may have 

contained exculpatory evidence. Finally, we conclude the district 

court did not err in determining that the forensic examination of 

the cell phone did not reveal material and exculpatory evidence. 

Accordingly, we affirm.