This opinion is subject to revision before final 

publication in the Pacific Reporter

2020 UT 46 

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, 

Respondent, 

v. 

LONNIE NORTON, 

Petitioner. 

No. 20180514 

Heard May 13, 2019 

Filed July 13, 2020 

On Certiorari to the Utah Court of Appeals 

Third District, West Jordan 

The Honorable Bruce C. Lubeck 

No. 131400015 

Attorneys: 

Sean D. Reyes, Att’y Gen., Christopher D. Ballard, 

Asst. Solic. Gen., Salt Lake City, for respondent 

Lori J. Seppi, Salt Lake City, for petitioner 

JUSTICE PETERSEN authored the opinion of the Court with respect 

to Parts I–IV in which CHIEF JUSTICE DURRANT, 

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, and 

JUSTICE PEARCE joined, and wrote separately in Part V in which 

ASSOCIATE CHIEF JUSTICE LEE joined. 

CHIEF JUSTICE DURRANT filed an opinion concurring in part and 

concurring in the judgment, in which JUSTICE HIMONAS and 

JUSTICE PEARCE joined. 

 
STATE v. NORTON

Opinion of the Court

2 

JUSTICE PETERSEN, opinion of the Court: 

INTRODUCTION

¶1 A jury convicted Lonnie Norton of breaking into the 

home where his estranged wife was staying, kidnapping her, 

assaulting her, and then raping her—all while she had a 

protective order against him. He appealed his convictions and the 

court of appeals affirmed. He petitions this court for a review of 

each claim he raised before the court of appeals. We affirm on all 

but one issue.

BACKGROUND1

¶2 Norton and H.N. had been married for twenty-one years 

when H.N. moved out of the marital home with their four 

children. She stayed in a domestic violence shelter, then moved 

into her parents’ home. She obtained a protective order against 

Norton, which prohibited him from contacting her except to 

discuss marriage counseling and their children. The protective 

order permitted Norton to visit his three younger children, but 

only if a supervisor was present. 

¶3 One evening, H.N.’s three youngest children went to the 

marital home for a weekend visitation with Norton. The events of 

that night led to Norton’s arrest. 

¶4 At the trial on the resulting charges, both H.N. and 

Norton testified. They gave vastly different accounts of what 

happened that night. 

The Two Conflicting Accounts 

H.N.’s Account 

¶5 At trial, H.N. testified that before going to bed that night, 

she put chairs under the doorknobs of the front and back doors of 

her parents’ home, as she did each night. She had previously 

placed a dryer in front of the basement door, which remained 

there. After H.N. went to bed, she was awakened by a “loud 

bang.” She grabbed the phone and dialed 911 before noticing 

Norton standing at the end of her bed. He grabbed the phone and 

__________________________________________________________ 

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

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

State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation omitted). 

“We present conflicting evidence only as necessary to understand 

issues raised on appeal.” Id.
Cite as: 2020 UT 46 

Opinion of the Court 

3 

punched her in the face. Norton also wound duct tape around 

H.N.’s head, covering her mouth. 

¶6 The next thing H.N. remembered was sitting in Norton’s 

car at an intersection. Although it was snowing, she did not have 

any shoes on. H.N. noticed that Norton had a gun in his lap, 

which he picked up and pointed at her. H.N. thought Norton was 

driving to his office at the University of Utah, but instead he 

drove to a building in Fort Douglas. When they arrived, Norton 

was still holding the gun and told H.N. that she “needed to be 

quiet or he would shoot [her].” 

¶7 H.N. and Norton went into the building, up some stairs, 

and into a bathroom. Norton ripped the duct tape off H.N.’s head 

and talked to her about reconciling their marriage. After he 

finished talking, Norton told H.N. to take off her shirt. When H.N. 

said “no,” Norton pointed the gun at her and again told her to 

take off her shirt. She finally acquiesced, and Norton squeezed her 

breasts. 

¶8 Next, Norton led H.N. into an office and told her to take 

off her pants. She again said “no,” and he again pointed the gun at 

her, forcing her to comply. While she did so, Norton undressed, 

removed the magazine from the gun, and put the magazine and 

gun in a filing cabinet. Then, he told H.N. that they were going to 

have sex. She said “no,” but Norton responded that “yes” they 

were. “So you’re going to rape me?” she asked. Norton replied, 

“You can’t rape somebody that you’re married to.” 

¶9 He then lay on the ground and pulled H.N. on top of 

him. He grabbed H.N.’s hands, flipped her so that she was 

underneath him, and raped her. While Norton was on top of her, 

H.N. grabbed his penis as hard as she could, but was unsure how 

hard that was because she has rheumatoid arthritis. In response, 

Norton again grabbed her hands and held them over her head. 

¶10 After raping H.N., Norton took her into the bathroom. He 

told her to rinse off, but she struggled because her hands were 

shaking. Norton complained that she “wasn’t doing a good 

enough job,” and inserted his fingers into H.N.’s vagina to try to 

“rinse himself out” of her. Afterwards, H.N. dried herself off with 

paper towels and dressed. She then noticed that Norton was 

dressed with the gun in his hand. 

¶11 Back in the office, Norton set up two chairs so that they 

were facing each other and told H.N. to sit. She sat, and Norton 

put the gun to his head and threatened to kill himself. H.N. tried 

to dissuade him, but Norton pointed the gun at H.N. and 

threatened to shoot her, too. Eventually H.N. got mad and told 
STATE v. NORTON

Opinion of the Court

4 

Norton to “go ahead and shoot himself,” at which point he got up 

and took her back to the car. 

¶12 Norton drove to the marital home. There, H.N. checked 

on the children and then convinced Norton to take her back to her 

parents’ home. When they arrived, Norton entered the house, 

leaving only after H.N. told him she would not tell anyone what 

had happened. 

¶13 After Norton left, H.N. called one of Norton’s neighbors 

and asked the neighbor to get her children out of the marital 

home. H.N. also called 911, told a police officer what happened, 

and asked the officer to check on her children. The police arrived 

at H.N.’s parents’ home, spoke with her, and then drove her to the 

hospital. 

Norton’s Account 

¶14 Norton testified at trial and gave a very different version 

of these events. He claimed that H.N. told him to visit her over the 

weekend so they could discuss their marriage. After their children 

were asleep, Norton drove to H.N.’s parents’ house to see her. 

While driving over, he received a phone call from H.N., which he 

missed. He arrived at H.N.’s parents’ home and waited outside 

until she exited the house and got in the car. Norton said he could 

not remember whether H.N. was wearing shoes, but that “she 

might have come running out in stocking feet” and he thought he 

“gave her a pair of Reeboks to wear.” 

¶15 H.N. suggested they go to Norton’s office to talk. While 

driving, Norton decided it would be better to go to a building in 

the Fort Douglas area. 

¶16 After arriving at the building, Norton unlocked the door 

and proceeded upstairs with H.N. where they sat down and 

talked about reconciliation. H.N. said she needed time, and 

Norton started talking about when they first met and when they 

were first married. H.N. then came over, sat on Norton’s lap, put 

her arms around him, and the two started kissing. They moved to 

the floor where they continued to kiss and touch each other. They 

took off their clothes, continued to kiss, and then H.N. “climbed 

on top” of Norton and they began “to have sex.” Afterwards, they 

went into the bathroom where H.N. “rinsed” and “dried herself 

off.” 

¶17 After dressing, Norton and H.N. sat down and continued 

to discuss reconciliation. H.N. told Norton she did not want to 

live with him anymore. He replied that if they were not going to 

reconcile he thought it “would be fair” if they had joint custody of 
Cite as: 2020 UT 46 

Opinion of the Court 

5 

their children. The two argued, and H.N. slapped Norton and 

then he backhanded her. H.N. tried to hit Norton more, but he 

grabbed her hands and the two “rastled.” H.N. went into the 

bathroom, shut the door, and stayed there for about ten minutes. 

When H.N. left the bathroom, they went back to the car and she 

told Norton she wanted to look in on their children. 

¶18 Norton drove to the marital home and they checked on 

the children. He then took H.N. back to her parents’ home. When 

they got there, H.N. told Norton that the door was locked, so he 

pushed through a locked gate and went to one of the back doors 

and pushed it open. He went inside and opened a different door 

to let H.N. into the home. Then, he again brought up having joint 

custody of their children. This started another argument. H.N. 

then claimed that he had broken into her parents’ home and 

beaten her up, and she threatened to call the police. Norton got 

scared and left. Later that morning, the police came and arrested 

him. 

District Court Proceedings 

Jury Instructions 

¶19 The State charged Norton with aggravated kidnapping, 

aggravated burglary, aggravated assault, violation of a protective 

order, damage to or interruption of a communication device, and 

three counts of aggravated sexual assault. The three aggravated 

sexual assault charges were based on Norton squeezing H.N.’s 

breasts, raping her, and inserting his fingers into her vagina, 

respectively. The case proceeded to trial. When it came time to 

instruct the jury, Norton asked the court for instructions on a 

number of lesser included offenses. The court agreed to some of 

these instructions but denied others. 

Verdict 

¶20 On the charge of violation of a protective order and the 

two charges of aggravated sexual assault relating to rape and 

digital penetration, the jury found Norton guilty as charged. On 

the aggravated kidnapping, aggravated burglary, and aggravated 

assault charges, the jury found Norton guilty of the lesser 

included offenses of kidnapping, burglary, and assault. The jury 

acquitted him of interruption of a communication device and 

aggravated sexual assault related to squeezing H.N.’s breasts. 

Sentencing 

¶21 At sentencing, the most serious punishment Norton faced 

was for his two convictions of aggravated sexual assault. He made 

two arguments to persuade the district court to reject the 
STATE v. NORTON

Opinion of the Court

6 

presumptive punishment tier of fifteen years to life in favor of a 

lower punishment tier.2

¶22 First, Norton argued that the district court should not 

apply the higher sentencing tier applicable to aggravated sexual 

assault based on rape and forcible sexual abuse because the jury 

had not been given a special verdict form to indicate the type of 

sexual assault upon which they relied. Norton observed that the 

court had instructed the jury that sexual assault could be based on 

rape, attempted rape, forcible sexual abuse, or attempted forcible 

sexual abuse. But the court did not provide the jury with a special 

verdict form to indicate which underlying sexual assault offense 

formed the basis of either conviction. 

¶23 In light of this, Norton argued there was no evidence 

these convictions were based on anything more than the least 

serious offense of attempted forcible sexual abuse. So he reasoned 

the district court could sentence him only to six years to life, the 

sentencing range corresponding to aggravated sexual assault 

based on attempted forcible sexual abuse. UTAH CODE § 76-5-

405(2)(c)(i). The court rejected this argument and concluded the 

presumptive range for the two counts of aggravated sexual 

assault should be fifteen years to life, the tier corresponding to 

aggravated sexual assault based on completed acts of rape and 

forcible sexual abuse. Id. §§ 76-5-405(2)(a)(i), -405(2)(b)(i). 

¶24 Second, Norton argued that the district court should 

depart from the higher sentencing tier in the “interests of justice” 

due to his history, distressed state at the time of the crime, and 

commitment to improving. The State countered that fifteen years 

to life was an appropriate sentence because Norton committed “a 

terrible crime” and had never accepted responsibility for his 

actions. The court acknowledged that this was a “very difficult 

case” and that Norton had a “good past” and might be “entitled 

to some mercy.” However, the court noted Norton’s “inability and 

unwillingness to follow the truth” and that his actions were the 

__________________________________________________________ 2 The statutory sentencing range for aggravated sexual assault 

varies based on the type of sexual assault involved in the offense. 

If the underlying offense is rape or forcible sexual abuse, the 

presumptive sentence is fifteen years to life. UTAH CODE

§ 76-5-405(2)(a)(i). If the underlying offense is attempted rape, the 

presumptive sentence is ten years to life. Id. § 76-5-405(2)(b)(i). 

And if the underlying offense is attempted forcible sexual abuse, 

the presumptive sentence is six years to life. Id. § 76-5-405(2)(c)(i). 
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Opinion of the Court 

7 

“kind of conduct that simply cannot be accepted in our society.” 

The court sentenced Norton to fifteen years to life in prison on 

both counts of aggravated sexual assault, to run concurrently. 

¶25 In total, the district court sentenced Norton to fifteen 

years to life in prison on both aggravated sexual assault 

convictions, one to fifteen years in prison for kidnapping, one to 

fifteen years in prison for burglary, 180 days for assault, and 365 

days for violation of a protective order. The court ran each prison 

term concurrently. 

Court of Appeals’ Decision 

¶26 Norton appealed, making five claims. Two of Norton’s 

claims centered on the district court’s jury instructions. He argued 

that the instructions on aggravated sexual assault and the 

underlying offenses of rape and forcible sexual abuse misstated 

the law because they did not make clear that Norton had to act 

intentionally or knowingly with regard to H.N.’s nonconsent. 

State v. Norton, 2018 UT App 82, ¶¶ 25, 28, 427 P.3d 312. He also 

argued that the district court erred in rejecting some of his 

requests for instructions on lesser included offenses. Id. ¶ 26. 

¶27 Norton also challenged his sentence. He argued that the 

district court’s decision to apply the fifteen-to-life sentencing tier 

for his aggravated sexual assault convictions “violated his rights 

to due process and a jury trial” because the jury had not been 

given a special verdict form to indicate the type of sexual assault 

forming the basis of these convictions. Id. ¶ 57. He reasoned that 

this “impermissibly increased the penalty he would have received 

had he been sentenced according to the facts that he claims were 

reflected in the jury’s verdict.” Id. ¶ 59. He also argued that the 

court abused its discretion when it failed to properly conduct the 

interests of justice analysis required by LeBeau v. State, 2014 UT 39, 

337 P.3d 254. Norton, 2018 UT App 82, ¶ 67. 

¶28 Finally, Norton argued that the court of appeals should 

reverse his convictions under the cumulative error doctrine. Id.

¶ 87. 

¶29 The court of appeals rejected each argument. First, the 

court concluded that even if the jury instructions regarding 

aggravated sexual assault, rape, and forcible sexual abuse were 

erroneous as to the required mental state for H.N.’s nonconsent, 

any such error did not prejudice Norton. Id. ¶ 40. Second, the 

court of appeals determined that the district court did not err in 

refusing to give certain lesser included offense instructions that 

Norton had requested. Id. ¶¶ 49, 53, 56. It further concluded that 

at sentencing, the district court correctly determined the 
STATE v. NORTON

Opinion of the Court

8 

presumptive sentencing tier for the aggravated sexual assault 

convictions and properly considered all the evidence and 

argument presented by the parties. Id. ¶ 86. It also declined to 

reverse on cumulative error grounds. Id. ¶ 87. 

¶30 We granted Norton’s petition for certiorari on each of 

these claims. We have jurisdiction pursuant to Utah Code section 

78A-3-102(3)(a). 

STANDARD OF REVIEW 

¶31 “On certiorari, we review for correctness the decision of 

the court of appeals . . . .” State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 

1096. 

ANALYSIS 

¶32 We granted certiorari to consider whether the court of 

appeals erred in (1) concluding that any error in the jury 

instructions on aggravated sexual assault, rape, and forcible 

sexual abuse did not prejudice Norton; (2) affirming the district 

court’s refusal to instruct the jury on additional lesser included 

offenses of aggravated sexual assault, aggravated burglary, and 

aggravated kidnapping; (3) affirming the district court’s sentence 

of fifteen years to life on both convictions of aggravated sexual 

assault; (4) concluding that the district court conducted a proper 

interests of justice analysis at sentencing; and (5) rejecting 

Norton’s claim of cumulative error. We address each issue in turn. 

I. JURY INSTRUCTIONS 

¶33 Norton contends that the jury instructions on aggravated 

sexual assault and the underlying offenses of rape and forcible 

sexual abuse were incorrect. He argues that the instructions did 

not adequately explain that to convict, the jury must find that he 

acted knowingly and intentionally with regard to H.N.’s 

nonconsent. He further contends that if the jury had been 

properly instructed, there was a reasonable probability it would 

have acquitted him on these charges. Norton did not object to 

these instructions at trial, so he asks us to review this claim for 

plain error,3 manifest injustice,4 and ineffective assistance of 

counsel. 

__________________________________________________________ 3 The State argues that we should not conduct a plain error 

review because Norton invited any error in these instructions. At 

trial, the district court told counsel that if they did not object to an 

instruction, the court would assume they approved of it. Norton’s 

counsel did not object to these instructions, and the State argues 

(continued . . .) 
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Opinion of the Court 

9 

¶34 The court of appeals assumed without deciding that the 

jury instructions were incorrect, and it disposed of this issue 

based on lack of prejudice. State v. Norton, 2018 UT App 82, ¶¶ 30–

40, 427 P.3d 312. We agree with the court of appeals that even 

assuming Norton’s criticism of these instructions is right, he has 

not shown prejudice. 

¶35 To show plain error or ineffective assistance of counsel, 

Norton must prove he was prejudiced by the alleged error. See

State v. Jimenez, 2012 UT 41, ¶ 20, 284 P.3d 640. The prejudice 

standards for plain error and ineffective assistance are the same. 

State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699. Prejudicial error 

occurs when “there is a reasonable probability” that but for the 

alleged errors, “the result of the proceeding would have been 

different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). 

¶36 Norton argues that the jury instructions did not clearly 

explain the requisite mens rea regarding H.N.’s nonconsent. At 

trial, the district court instructed the jury that the State had to 

“prove a mental state as to each of the . . . counts charged.” It then 

defined the mental states “intentionally”5 and “knowingly.”6

 

this is tantamount to invited error. We decline to address the 

State’s argument because we must still analyze prejudice to 

determine Norton’s ineffective assistance of counsel claim. And 

because we agree with the court of appeals that, even assuming 

these jury instructions were erroneous, they did not prejudice 

Norton, his claim fails whether we review it for ineffective 

assistance, manifest injustice, or plain error. 

4 Our precedent holds that in many instances “’manifest 

injustice’ and ‘plain error’ are operationally synonymous.” State v. 

Bullock, 791 P.2d 155, 159 (Utah 1989); see also State v. Johnson, 2017 

UT 76, ¶ 57 n.16, 416 P.3d 443; State v. Maestas, 2012 UT 46, ¶ 37, 

299 P.3d 892. Norton has not argued otherwise; therefore, we 

review his argument under the plain error standard. 

5 The district court instructed the jury that a “person acts 

intentionally . . . when his conscious objective is to cause a certain 

result or to engage in certain conduct.” See UTAH CODE § 76-2-

103(1). 

6 The district court instructed the jury that a “person acts 

knowingly . . . when the person is aware of the nature of his 

conduct or is aware of the particular circumstances surrounding 

(continued . . .) 
STATE v. NORTON

Opinion of the Court

10 

¶37 Regarding aggravated sexual assault, the district court 

instructed the jury that it could find Norton guilty if it found 

beyond a reasonable doubt that: 

1. [Norton] raped or attempted to rape or committed 

forcible sexual abuse or attempted forcible sexual 

abuse against [H.N.]; and 

2. That in the course of that rape or attempted rape 

or forcible sexual abuse or attempted forcible sexual 

abuse [Norton] 

(a) used or threatened [H.N.] with the use of a 

dangerous weapon; or 

(b) compelled, or attempted to compel, [H.N.] 

to submit to rape or forcible sexual abuse by 

threat of kidnap[p]ing, death, or serious 

bodily injury to be inflicted imminently; and 

3. That [Norton] did such acts knowingly or 

intentionally. 

¶38 The district court then instructed the jury on rape and 

forcible sexual abuse. Regarding rape, it instructed the jury that it 

could convict Norton if it found beyond a reasonable doubt that: 

1. [Norton] had sexual intercourse with [H.N.]; and 

2. That such conduct was without the consent of 

[H.N.]; and 

3. That said conduct was done intentionally or 

knowingly. 

¶39 With regard to forcible sexual abuse, the district court 

instructed the jury that it could convict Norton if it found beyond 

a reasonable doubt that: 

1. [Norton] touched the anus, buttocks, breasts, or 

any part of the genitals of H.N.; and 

2. That such conduct was done with the intent to 

either 

(a) cause substantial emotional or bodily pain 

to [H.N.], or 

 

his conduct,” and when the person is “aware that his conduct is 

reasonably certain to cause the result.” See id. § 76-2-103(2). 
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Opinion of the Court 

11 

(b) arouse or gratify the sexual desires of any 

person; and without the consent of [H.N.]; 

and 

3. That said conduct was done intentionally or 

knowingly. 

¶40 Norton relies on State v. Barela to argue that the rape and 

forcible sexual abuse instructions are incorrect because they 

“implied that the mens rea requirement . . . applied only to the act 

of sexual intercourse and not to the alleged victim’s nonconsent.” 

2015 UT 22, ¶ 26, 349 P.3d 676. If these instructions are incorrect, 

so too is the aggravated sexual assault instruction because it 

incorporates the instructions for these associated offenses. 

¶41 The court of appeals declined to decide whether these 

instructions were erroneous, instead holding that even if they 

were, it was not prejudicial error. To determine whether the 

omission of an element from a jury instruction is prejudicial, we 

analyze “whether the record contains evidence that could 

rationally lead to a contrary finding with respect to the omitted 

element.” Neder v. United States, 527 U.S. 1, 19 (1999). Here, we ask 

specifically whether a reasonable jury could have found, based on 

the “totality of the evidence in the record,” that the defendant did 

not have the required mental state as to the victim’s nonconsent. 

Barela, 2015 UT 22, ¶ 31. 

¶42 We agree with the court of appeals that a reasonable jury 

could not have found that Norton mistook H.N.’s conduct for 

consent based on the totality of the evidence. Norton, 2018 UT App 

82, ¶¶ 37–40. Because the jury acquitted Norton of the charge of 

aggravated sexual assault related to squeezing H.N.’s breasts, 

only the counts based on the nonconsensual intercourse (rape) 

and digital penetration (forcible sexual abuse) are at issue. 

¶43 The trial evidence with respect to these two incidents 

could not support a finding that Norton may have mistakenly 

interpreted H.N.’s behavior to indicate consent. With regard to 

the intercourse, Norton’s testimony did not describe ambiguous 

behavior that he could have believed was consent. Rather, he 

testified that H.N. initiated sexual activity by sitting on his lap 

and later climbing on top of him. And in his version of events, the 

digital penetration never happened. He claimed she fabricated her 

claims against him. Specifically, he testified that after he returned 

her to her parents’ home he again tried to discuss custody of the 

children and she threatened to call the police and accuse him of 

breaking into the house and beating her up. 
STATE v. NORTON

Opinion of the Court

12 

¶44 And H.N.’s testimony similarly left no room for a finding 

that Norton mistook her conduct for consent. H.N. had a 

protective order against Norton. She testified that she had pulled 

a dryer in front of the basement door when she first moved into 

her parents’ home. And each night she secured the front and back 

doors by positioning chairs under the doorknobs. Despite her 

efforts to create a barricade, H.N. testified that Norton broke into 

the house, punched her in the face, wrapped duct tape around her 

head and over her mouth, took her into the snowy night with no 

shoes on, took her to an empty building, and forced her inside at 

gun point. Once inside, he commanded her to undress at gun 

point and then raped her. He then tried to get rid of the evidence 

by directing her to clean up and inserting his fingers into her 

vagina to ”rinse himself out.” H.N. testified that she told him “no” 

multiple times. 

¶45 Other evidence corroborated her version of events. The 

police found strands of hair that resembled H.N.’s in a bathtub in 

the Fort Douglas building they searched, a wad of duct tape with 

hair in it in the dumpster behind the building, a mark on H.N.’s 

lower back, swelling and the beginning of bruising on H.N.’s face, 

and bruising on her inner thighs and labia. 

¶46 Norton points to H.N.’s testimony that she squeezed his 

penis as evidence that could have persuaded a jury that Norton 

believed she was consenting. But this incident was characterized 

by both sides as an act of protest. H.N. testified that in response, 

Norton grabbed both her hands and pinned them above her head. 

And Norton did not say in his testimony that he believed the 

squeeze indicated participation. Rather, he did not mention it. 

And Norton’s counsel argued during closing that the squeeze 

refuted H.N.’s claim that she was “totally terrified of him” and 

indicated she was “not afraid to use force” and “not afraid to be 

confrontational.” And even if somehow a reasonable jury could 

have seen H.N.’s isolated act of squeezing Norton’s penis as 

ambiguous, any ambiguity vanishes when this act is viewed along 

with the rest of the trial evidence. 

¶47 A comparison with the facts in Barela helps demonstrate 

why the jury instructions here were not prejudicial. In Barela, a 

woman claimed her massage therapist raped her. 2015 UT 22, ¶ 6. 

The therapist claimed the sex was consensual. Id. ¶ 5. After a jury 

convicted the therapist of rape, he challenged on appeal a jury 

instruction that did not clearly state the required mens rea for the 

victim’s nonconsent. Id. ¶¶ 15–16. We agreed and reversed the 

defendant’s convictions. Id. ¶ 32. 
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Opinion of the Court 

13 

¶48 This court found that the evidence was such that a jury 

could have “thought that the truth fell somewhere in between the 

two accounts.” Id. ¶ 30. While the victim in that case said the 

defendant had suddenly instigated and perpetrated the 

intercourse without her consent, she testified that she “froze,” 

“neither actively participating in sex nor speaking any words,” 

and otherwise expressed no reaction. Id. ¶ 29. This court 

concluded that a jury could have believed that although the 

victim did not consent, the defendant may have mistakenly 

thought she did. See id. ¶¶ 30–32. Accordingly, we held that it was 

“reasonably likely” that a proper jury instruction regarding the 

requisite mental state as to the victim’s nonconsent could have 

affected the outcome of the trial. Id. ¶¶ 31–32. 

¶49 In contrast, a reasonable jury could not look at the totality 

of the trial evidence here and find that, under either version of 

events, Norton may have mistaken H.N.’s conduct for consent. 

Norton claims H.N. initiated the sexual activity and then 

manufactured and exaggerated her claims against him. H.N. 

claims Norton kidnapped her and then raped her at gunpoint. 

This case does not involve behavior that the jury could have 

viewed as a close call in either direction. 

¶50 Accordingly, this case does not turn on whether Norton 

may have mistaken H.N.’s conduct for consent. Rather, H.N.’s 

and Norton’s versions of the events in question were mutually 

exclusive, and the jury had to decide who to believe. We agree 

with the court of appeals that even assuming the jury instructions 

were erroneous, it was not reasonably likely that absent the errors 

the outcome of the trial would have been different.

¶51 While the jury instruction here could have been clearer, 

see State v. Newton, 2020 UT 24, ¶ 29, --- P.3d --- (identifying Model 

Utah Jury Instruction CR1605 as an example of a clear jury 

instruction for the offense of rape), we conclude that Norton did 

not show he was prejudiced by the instruction, and consequently 

that he failed to establish manifest injustice, plain error, or 

ineffective assistance of counsel.

II. LESSER INCLUDED OFFENSES 

¶52 Norton argues that the court of appeals erred in affirming 

the district court’s refusal to instruct on additional lesser included 

offenses of aggravated kidnapping, aggravated burglary, and two 

of the counts of aggravated sexual assault. 

¶53 Relevant here, an offense constitutes a lesser included 

offense when it is “established by proof of the same or less than 

all the facts required to establish the commission of the offense 
STATE v. NORTON

Opinion of the Court

14 

charged” or is “specifically designated by a statute as a lesser 

included offense.” UTAH CODE § 76-1-402(3)(a), (c). 

¶54 When a defendant requests an instruction on a lesser 

included offense, we use the evidence-based standard codified in 

Utah Code section 76-1-402(4) to determine whether such an 

instruction is required. See State v. Powell, 2007 UT 9, ¶ 24, 154 

P.3d 788. We first ask whether the charged offense and the lesser 

included offense have “some overlap in the statutory elements.” 

State v. Baker, 671 P.2d 152, 159 (Utah 1983). We then inquire 

whether the trial evidence “provides a rational basis for a verdict 

acquitting the defendant of the offense charged and convicting 

him of the included offense.” Id. at 159 (citation omitted) (internal 

quotation marks omitted); see also Powell, 2007 UT 9, ¶ 24; UTAH 

CODE § 76-1-402(4). We must determine whether there is “a 

sufficient quantum of evidence presented to justify sending the 

question to the jury.” Baker, 671 P.2d at 159. And we view the 

evidence “in the light most favorable to the defendant requesting 

the instruction.” Powell, 2007 UT 9, ¶ 27. 

¶55 The court of appeals carefully analyzed each of Norton’s 

claims of entitlement to an instruction on a lesser included 

offense. We affirm the court of appeals’ decision with regard to all 

but one of those claims.

A. Aggravated Kidnapping 

¶56 Norton argues that the court of appeals erred in affirming 

the district court’s refusal to instruct on unlawful detention as a 

lesser included offense of aggravated kidnapping. We agree with 

the court of appeals’ decision. 

¶57 At trial, both parties requested an instruction on 

kidnapping as a lesser included offense of aggravated 

kidnapping. Additionally, Norton requested an instruction on 

unlawful detention. The district court instructed the jury on 

kidnapping but not unlawful detention. Ultimately, the jury 

acquitted Norton of aggravated kidnapping but convicted him of 

kidnapping. 

¶58 The State’s aggravated kidnapping charge was based on 

Norton abducting H.N. from the home, duct-taping her head and 

mouth, and taking her to Fort Douglas where he sexually 

assaulted her and periodically held her at gunpoint. In contrast, 

Norton testified that H.N. willingly left her home and 

accompanied him to the Fort Douglas building. However, he 

claimed that when they arrived at the empty building they 

argued, H.N. hit Norton, and he responded by backhanding her. 

He then restrained H.N.’s hands to prevent her from hitting him 
Cite as: 2020 UT 46 

Opinion of the Court 

15 

again. On appeal, Norton identifies his testimony that he 

temporarily restrained H.N.’s hands as being sufficient to require 

the district court to instruct on unlawful detention. 

¶59 Unlawful detention is statutorily defined as a lesser 

included offense of aggravated kidnapping.7 UTAH CODE

§ 76-5-306(2); see also id. § 76-1-402(3). But the conduct identified 

by Norton is a separate act that is not included within the conduct 

that constituted the greater offense of aggravated kidnapping 

here. “Even if there is overlap in the statutory elements, if the 

convictions rely on materially different acts, then one crime will 

not be a lesser included offense of another.” State v. Garrido, 2013 

UT App 245, ¶ 31, 314 P.3d 1014 (internal quotation marks 

omitted). 

¶60 Norton’s testimony that he restrained H.N.’s hands at 

Fort Douglas is separate, uncharged conduct. As to the conduct 

that is the basis for the aggravated kidnapping charge—abducting 

H.N. from the home, taking her to the Fort Douglas building, 

periodically holding her at gunpoint, and sexually assaulting 

her—Norton claims it was all voluntary and consensual. Based on 

the trial evidence, the choice for the jury was to either convict him 

of aggravated kidnapping or kidnapping based on H.N.’s 

testimony, or acquit him based on his testimony. If the jury 

believed Norton’s version of events, it could not convict him of 

restraining H.N.’s hands—a separate act for which he was not 

charged. 

¶61 We also note that Norton’s testimony does not appear to 

even establish the offense of unlawful detention. Unlawful 

detention requires restraint or detention “without authority of 

__________________________________________________________ 7 To prove aggravated kidnapping, the State must show in 

relevant part that “in the course of committing unlawful detention 

or kidnapping,” a person “(a) possesses, uses, or threatens to use a 

dangerous weapon,” or (b) acts with intent “(vi) to commit a 

sexual offense.” UTAH CODE § 76-5-302(1)(a), (1)(b)(vi) (2012). (We 

cite to the version of the statute in effect at the time of the events 

in question for this and other statutory provisions that have been 

substantively amended since that time.) To prove unlawful 

detention, the State must prove only that an actor “intentionally 

or knowingly, without authority of law, and against the will of the 

victim, detains or restrains the victim under circumstances not 

constituting a violation of: (a) kidnapping . . . or (c) aggravated 

kidnapping.” Id. § 76-5-304(1) (2012). 
STATE v. NORTON

Opinion of the Court

16 

law.” UTAH CODE § 76-5-304(1) (2012). But Norton claimed he 

restrained H.N.’s hands in self-defense to stop her from hitting 

him, and we must look at the evidence in the light most favorable 

to him without weighing credibility. See Powell, 2007 UT 9, ¶ 27. 

Restraining another’s hands in self-defense is not unlawful. See

UTAH CODE § 76-2-402(1)(a) (2012) (providing that a “person is 

justified in threatening or using force against another when and to 

the extent that the person reasonably believes that force or a threat 

of force is necessary to defend the person or a third person against 

another person’s imminent use of unlawful force”). So Norton’s 

evidence does not amount to unlawful detention. 

¶62 Fundamentally, the evidence before the jury provided no 

rational basis for a verdict acquitting Norton of aggravated 

kidnapping and instead convicting him of unlawful detention. See

id. § 76-1-402(4). Accordingly, we agree with the court of appeals 

that the district court was not obligated to instruct the jury on 

unlawful detention.8

B. Aggravated Burglary 

¶63 Norton argues that he was entitled to instructions on 

aggravated assault, assault, and criminal trespass as lesser 

included offenses of aggravated burglary. We agree with the court 

of appeals that these “are not lesser included offenses of 

aggravated burglary under the facts of this case.” Norton, 2018 UT 

App 82, ¶ 55. 

¶64 At trial, the district court instructed on burglary as a 

lesser included offense of aggravated burglary. But the court did 

not instruct on aggravated assault, assault, or criminal trespass. 

__________________________________________________________ 8 The State agrees with the court of appeals that an instruction 

on unlawful detention was not required here but disagrees with 

that court’s analysis. The State reasons that because the 

kidnapping was an ongoing crime that continued at Fort Douglas, 

the evidence of Norton restraining H.N.’s hands was not a 

separate act. We appreciate the State’s point, but we ultimately 

agree with the court of appeals’ analysis for the reasons explained 

above, supra ¶¶ 56–62. The evidence Norton identifies provides a 

rational basis for a verdict acquitting him of aggravated 

kidnapping, but not for one convicting him of unlawful detention 

because the restraint was a separate uncharged act. See UTAH 

CODE § 76-1-402(4). 
Cite as: 2020 UT 46 

Opinion of the Court 

17 

¶65 Aggravated burglary, aggravated assault, and assault do 

have overlapping statutory elements.9 But again, Norton relies on 

evidence of a materially separate, uncharged act to argue that the 

district court should have instructed on these offenses. 

¶66 The State’s aggravated burglary charge was based on the 

events surrounding Norton breaking into H.N.’s parents’ home at 

the beginning of the night in question. These events included 

H.N. waking to a “loud bang”—presumably caused by one of the 

objects she had used to barricade the doors—and finding Norton 

standing at the end of her bed. He then punched her in the face. 

¶67 At trial, Norton denied all of this. He claimed that he did 

not break into H.N.’s parents’ home at the beginning of the night, 

but that he waited in his car outside of the home for her to 

willingly join him. However, he points to his testimony that he 

backhanded H.N. and injured her face at Fort Douglas as 

supporting instructions on aggravated assault and assault as 

lesser included offenses of aggravated burglary. 

¶68 This is an uncharged act that is separate from the conduct 

forming the basis of the aggravated burglary charge—Norton 

breaking into H.N.’s parents’ home and punching her in the face. 

As the court of appeals aptly concluded, “Because the facts and 

evidence developed to establish the greater offense of aggravated 

burglary were different from the facts and evidence relied upon 

__________________________________________________________ 9 At the time of the conduct at issue, aggravated burglary 

occurred when a person “in attempting, committing, or fleeing 

from a burglary . . . (a) cause[d] bodily injury to any person who 

[was] not a participant in the crime; (b) use[d] or threaten[ed] the 

immediate use of a dangerous weapon against any person who 

[was] not a participant in the crime; or (c) possesse[d] or 

attempt[ed] to use any explosive or dangerous weapon.” Id. § 76-

6-203(1). 

An aggravated assault occurred if a person “commit[ed] 

assault” and used “(a) a dangerous weapon . . . or (b) other means 

or force likely to produce death or serious bodily injury.” Id. § 76-

5-103(1). 

And an assault was “(a) an attempt, with unlawful force or 

violence, to do bodily injury to another; (b) a threat, accompanied 

by a show of immediate force or violence, to do bodily injury to 

another; or (c) an act, committed with unlawful force or violence, 

that cause[d] bodily injury to another or create[d] a substantial 

risk of bodily injury to another.” Id. § 76-5-102(1) (2012). 
STATE v. NORTON

Opinion of the Court

18 

by Norton to claim entitlement to the lesser included offense 

instructions of aggravated assault and assault, those lesser 

offenses were not included within the greater offenses.” Id. ¶ 56. 

¶69 Norton’s testimony about this uncharged conduct 

provides a basis for an additional offense but not a lesser offense 

included within the conduct for which he was actually charged. 

Accordingly, the evidence at trial did not provide a rational basis 

for a verdict acquitting Norton of aggravated burglary or burglary 

and instead convicting him of aggravated assault or assault. So 

the district court was not required to give the lesser included 

offense instructions he requested. 

¶70 Norton also argued to the court of appeals that he was 

entitled to an instruction on criminal trespass because he went to 

H.N.’s residence at the end of the night, which the protective 

order prohibited. See id. ¶ 56 n.13. Because Norton’s trial counsel 

did not request a criminal trespass instruction, Norton raises this 

argument based on ineffective assistance of counsel. See id.

¶71 The court of appeals concluded again that because of the 

different underlying conduct that Norton relied on to make his 

argument, “criminal trespass was not an included offense of 

aggravated burglary under the circumstances of this case, and 

Norton’s counsel was therefore not ineffective for failing to 

request criminal trespass as a lesser included instruction.” Id.

¶72 The court of appeals was correct. Norton’s testimony 

about going to H.N.’s parents’ home at the end of the night is 

separate from his breaking into the house at the beginning of the 

night. It is uncharged conduct. If it did support a conviction for 

criminal trespass, that conviction would not be in lieu of burglary 

but in addition to it. Accordingly, the district court was not 

required to instruct on criminal trespass and Norton’s counsel 

was not ineffective for not requesting such an instruction. 

C. Aggravated Sexual Assault Based on Rape 

¶73 Norton argues that the district court erred in declining to 

instruct the jury on sexual battery as a lesser included offense of 

aggravated sexual assault based on rape. But we agree with the 

court of appeals that the district court did not err in refusing to 

give such an instruction. 

¶74 At trial, Norton and the State requested instructions on 

rape, forcible sexual abuse, and sexual battery as lesser included 

offenses of aggravated sexual assault based on rape. The district 

court did instruct the jury on rape and forcible sexual abuse, but 

not on sexual battery. Although the jury was instructed on two 
Cite as: 2020 UT 46 

Opinion of the Court 

19 

lesser included offenses, it convicted Norton of aggravated sexual 

assault as charged. 

¶75 The offenses of aggravated sexual assault based on the 

underlying offense of rape and sexual battery have overlapping 

elements.10 Norton argues that he was entitled to a sexual battery 

instruction because the jury could have disbelieved H.N. or found 

that she exaggerated her allegations to gain an advantage in the 

custody battle. Norton also asserts that her testimony about the 

rape was ambiguous because she did not struggle after he 

initiated sex, except to squeeze his penis. And he argues that in 

light of his testimony that the sex was consensual, the jury could 

have found that no rape occurred, but when Norton held her 

hands above her head, that particular sexual position might have 

caused her momentary affront or alarm. 

¶76 This is pure speculation. Norton has not identified a 

quantum of evidence presented at trial that would support 

instructing the jury on sexual battery. Norton testified that the 

sexual intercourse was entirely consensual and that H.N. was an 

active participant. The only testimony about him pinning H.N.’s 

hands above her head came from her. And she testified that she 

did not consent to any sexual activity, and that when he held her 

hands above her head it was in response to her squeezing his 

penis. There was no evidence to support a finding that the 

__________________________________________________________ 10 The relevant statutory language provides, “A person 

commits aggravated sexual assault if: (a) in the course of a rape 

. . . or forcible sexual abuse, the actor: (i) uses, or threatens the 

victim with the use of, a dangerous weapon” or “(ii) compels, or 

attempts to compel, the victim to submit to rape . . . or forcible 

sexual abuse[] by threat of kidnap[p]ing, death, or serious bodily 

injury to be inflicted imminently on any person.” UTAH CODE

§ 76-5-405(1). 

“A person commits rape when the actor has sexual intercourse 

with another person without the victim’s consent.” Id. § 76-5-

402(1). 

“A person is guilty of sexual battery if the person, under 

circumstances not amounting to” rape, forcible sexual abuse, 

attempted rape, or attempted forcible sexual abuse, “intentionally 

touches, whether or not through clothing, the anus, buttocks, or 

any part of the genitals of another person, or the breast of a female 

person, and the actor’s conduct is under circumstances the actor 

knows or should know will likely cause affront or alarm to the 

person touched.” Id. § 76-9-702.1(1). 
STATE v. NORTON

Opinion of the Court

20 

intercourse was consensual, but Norton should have known that 

H.N. intermittently experienced affront or alarm. Accordingly, the 

evidence did not provide a rational basis to acquit Norton of rape 

and instead convict him of sexual battery. See UTAH CODE § 76-1-

402(4). So no such instruction was required. 

D. Aggravated Sexual Assault Based on Forcible Sexual Abuse 

¶77 Norton also argues that the court of appeals erred in 

affirming the district court’s refusal to instruct on sexual battery 

as a lesser included offense of aggravated sexual assault based on 

forcible sexual abuse. We agree with Norton that an instruction on 

sexual battery was required. 

¶78 First, aggravated sexual assault based on forcible sexual 

abuse and sexual battery have “some overlap in the statutory 

elements.” Baker, 671 P.2d at 159. Both offenses require that the 

actor touches the anus, buttocks, or any part of the genitals of 

another. See UTAH CODE §§ 76-5-404(1), 76-5-405(1), and 76-9-

702.1(1) (2012). But they have different requisite mental states. 

Forcible sexual abuse requires that the defendant act with the 

intent to cause substantial emotional or bodily pain or to gratify 

the sexual desire of any person. Id. § 76-5-404(1) (2012). But sexual 

battery requires only that the defendant’s conduct be under 

circumstances that the defendant knows or should know would 

cause affront or alarm to the person touched. Id. § 76-9-702.1(1). 

¶79 Second, we conclude that “the evidence offered provides 

a rational basis for a verdict acquitting the defendant of the 

offense charged and convicting him of the included offense.” 

Baker, 671 P.2d at 159 (citation omitted) (internal quotation marks 

omitted); see also UTAH CODE § 76-1-402(4). Here, both the State 

and Norton rely on H.N.’s testimony that Norton inserted his 

finger into her vagina to wipe away his DNA. Norton’s testimony 

was that this touch did not happen. But relying on H.N.’s 

testimony that the touch occurred, Norton argues that the 

evidence, if believed, would support a finding that Norton 

“touched [H.N.] under circumstances he knew or should have 

known would likely cause affront or alarm” (the mental state 

required for sexual battery), rather than with intent to cause 

substantial emotional or bodily pain or to gratify his sexual desire 

(the mental state required for forcible sexual abuse). 

¶80 We agree. H.N.’s testimony indicates Norton was 

attempting to conceal his crime. While a jury could infer that in 

doing so he also intended to gratify his sexual desire or cause 

H.N. emotional or bodily pain, a jury could also infer from the 

same evidence that Norton touched H.N.’s vagina only under 
Cite as: 2020 UT 46 

Opinion of the Court 

21 

circumstances he knew or should have known would likely cause 

her affront or alarm. The trial evidence therefore provides a 

rational basis for a verdict acquitting Norton of aggravated sexual 

assault based on forcible sexual abuse and convicting him of 

sexual battery. 

¶81 We must now determine whether this error prejudiced 

Norton. An error is prejudicial if there is a “reasonable likelihood 

that the error affected the outcome of the proceedings.” State v. 

Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (citation omitted).

¶82 We conclude this error did prejudice Norton because had 

the jury been instructed on sexual battery, the evidence supported 

a conviction on the less serious charge and an acquittal on both 

aggravated sexual assault and the lesser included offense on 

which the district court instructed—forcible sexual abuse. Here, 

although the district court instructed on the lesser included 

offense of forcible sexual abuse, the jury convicted Norton on 

aggravated sexual abuse as charged. Generally, 

[w]here a jury is instructed on, and has the 

opportunity to convict a defendant of, a lesser 

included offense, but refuses to do so and instead 

convicts the defendant of a greater offense, failure to 

instruct the jury on another lesser included offense, 

particularly an offense that constitutes a lesser 

included offense of the lesser included offense that 

the jury was instructed on, is harmless error. 

State v. Daniels, 2002 UT 2, ¶ 28, 40 P.3d 611. 

¶83 However, this is a distinct situation and causes us to 

depart from our more general precedent. If the jury were to infer 

from H.N.’s testimony that Norton acted under circumstances that 

he knew would cause her affront or alarm, but did not intend to 

gratify his sexual desire or cause her emotional or physical pain, 

that would lead to acquittal of both aggravated sexual assault and 

forcible sexual abuse and conviction of sexual battery. Thus, there 

is a reasonable likelihood that the error affected the outcome of 

the proceedings. Accordingly, we conclude that the district court’s 

error prejudiced Norton and reverse the court of appeals’ 

affirmance of Norton’s conviction of aggravated sexual assault 

based on digital penetration. 

III. SENTENCING 

¶84 The longest potential terms of imprisonment Norton 

faced at sentencing were for his two aggravated sexual assault 

convictions. The district court sentenced him to fifteen years to life 
STATE v. NORTON

Opinion of the Court

22 

in prison on both of them. He argues that this was error and that 

the court of appeals should have reversed for two reasons.11

A. Special Verdict Form 

¶85 Norton argues that the district court should not have 

applied the sentencing tier applicable to aggravated assault based 

on a completed act of rape because the jury was not given a 

special verdict form to indicate which underlying sexual assault 

offense formed the basis of the conviction. In light of this, Norton 

argues the district court should have sentenced him to the lowest 

term of six years to life—the sentencing range corresponding to an 

aggravated sexual assault conviction based on attempted forcible 

sexual abuse. UTAH CODE § 76-5-405(2)(c)(i). 

¶86 The court of appeals held that the district court did not 

err because there was no factual basis “to support a conclusion 

that the jury could have determined that the sexual acts 

underlying [the charge] constituted only attempted forcible sexual 

abuse.” State v. Norton, 2018 UT App 82, ¶ 61, 427 P.3d 312. 

¶87 While we affirm the court of appeals’ conclusion that the 

district court applied the correct sentencing tier, we do so on an 

alternative basis. We conclude that Norton did not preserve this 

issue in the district court. 

¶88 At trial, the district court instructed the jury that 

aggravated sexual assault occurs when a person commits a sexual 

assault such as rape, forcible sexual abuse, attempted rape, or 

attempted forcible sexual abuse, and does so under certain 

aggravating circumstances. UTAH CODE § 76-5-405(1). The 

presumptive sentence for aggravated sexual assault varies based 

on the underlying offense from which it arises. Id. § 76-5-405(2). If 

the underlying offense is rape or forcible sexual abuse, the 

presumptive sentence is fifteen years to life. Id. § 76-5-405(2)(a)(i). 

If the underlying offense is attempted rape, the presumptive 

sentence is ten years to life. Id. § 76-5-405(2)(b)(i). And if the 

underlying offense is attempted forcible sexual abuse, the 

presumptive sentence is six years to life. Id. § 76-5-405(2)(c)(i). A 

court may impose a lesser term if it finds that doing so is in the 

__________________________________________________________ 11 As we have reversed the conviction for aggravated sexual 

assault based on forcible sexual abuse, only the conviction for 

aggravated sexual assault based on rape remains. Consequently, 

we analyze Norton’s argument only with respect to the remaining 

count. 
Cite as: 2020 UT 46 

Opinion of the Court 

23 

interests of justice and states the reasons for that finding on the 

record. Id. § 76-5-405(3)(a), (4)(a), (5)(a). 

¶89 At trial, defense counsel and the State reviewed the jury 

instructions and neither requested a special verdict form. So when 

the jury rendered its verdict, it did not identify the offense 

underlying the aggravated sexual assault conviction. 

¶90 At sentencing, Norton argued that without a special 

verdict form there was no indication the jury found him guilty of 

aggravated sexual assault based on anything but the least serious 

offense of attempted forcible sexual abuse. He asserted that 

consequently he should be sentenced only under the 

corresponding sentencing tier of six years to life. 

¶91 In response, the State argued that all evidence presented 

at trial was of completed, not attempted, sexual assaults. So 

Norton should be sentenced in accordance with the tier 

corresponding to aggravated sexual assault based on a completed 

act of rape. The district court agreed that fifteen years to life was 

the presumptive punishment tier, given the evidence presented at 

trial. 

¶92 Norton argues that this deprived him of the due process 

guarantee of “the right to a jury trial on every element of the 

offense.” But Norton did not raise this argument until sentencing, 

and that was too late. 

¶93 “As a general rule, claims not raised before the trial court 

may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 

P.3d 346. During trial, the parties met with the district court to 

finalize the jury instructions. This was the appropriate time for 

Norton to request that a special verdict form be included. But he 

made no mention of a special verdict form. Rather, Norton raised 

the issue at sentencing when it was too late for the district court to 

remedy the issue. 

¶94 This conclusion is contrary to that of our court of appeals, 

which held the issue was preserved because Norton “made these 

same arguments to the court below.” Norton, 2018 UT App 82, 

¶ 59 n.15. It is correct that Norton made this argument at 

sentencing. However, our preservation rules ensure that issues 

are addressed and, if appropriate, corrected when they arise. 

Holgate, 2000 UT 74, ¶ 11. Had Norton requested a special verdict 

form at trial, the district court could have included a form or 

denied his request. But at sentencing, it was too late for the district 

court to do either. Accordingly, Norton’s claim is unpreserved. See

State v. Cram, 2002 UT 37, ¶ 11, 46 P.3d 230 (concluding that an 

objection was not preserved because it could have been raised at 
STATE v. NORTON

Opinion of the Court

24 

trial but was instead raised at a scheduling conference where the 

error could no longer be corrected). Because Norton has not 

argued any exception to the preservation requirement here, his 

claim fails.12

B. Interests of Justice 

¶95 Norton also argues that the district court erred in not 

sentencing him to a lesser sentence “in the interests of justice.” 

UTAH CODE § 76-5-405(3)(a). Specifically, Norton claims that in 

sentencing him to the presumptive sentence of fifteen years to life 

on his aggravated assault sexual conviction, see id. § 76-5-

405(2)(a)(i), the district court did not conduct the interests of 

justice analysis or make the explicit findings required by LeBeau v. 

State, 2014 UT 39, 337 P.3d 254. He argues this was an abuse of 

discretion. 

¶96 “We traditionally afford the trial court wide latitude and 

discretion in sentencing.” State v. Woodland, 945 P.2d 665, 671 

(Utah 1997). We will not set aside a sentence unless the district 

court abused its discretion by “fail[ing] to consider all legally 

relevant factors or if the sentence imposed is clearly excessive.” 

State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (abrogated on 

other grounds by State v. Smith, 2005 UT 57, 122 P.3d 615) (footnote 

omitted) (internal quotation marks omitted). 

¶97 But relying on our holding in LeBeau, Norton argues the 

district court should have sua sponte analyzed the proportionality 

__________________________________________________________ 12 In any event, Norton’s argument does not persuade us that 

the absence of a special verdict form was plain error. Norton relies 

on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United 

States, 570 U.S. 99 (2013) to argue that in the instance of a tiered 

sentencing structure, where the jury is instructed on versions of 

the offense that qualify for more than one tier, a special verdict 

form is required. But this is an extension of Apprendi and Alleyne. 

In Apprendi, the United States Supreme Court held that “[o]ther 

than the fact of a prior conviction, any fact that increases the 

penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt.” 530 

U.S. at 490 (emphasis added). In Alleyne, the Supreme Court 

extended the same holding to any fact that increases the 

mandatory minimum sentence. 570 U.S. at 108. And Norton does 

not explain why Apprendi and Alleyne require a special verdict 

form under the circumstances here.
Cite as: 2020 UT 46 

Opinion of the Court 

25 

of his sentence and his potential for rehabilitation. In determining 

proportionality, Norton argues that the court should have 

considered both the gravity of his conduct in relation to the 

severity of the sentence imposed on him, and the severity of his 

sentence relative to sentences imposed for other crimes in Utah. 

And he argues that in analyzing his rehabilitative potential, the 

district court should have considered the Board of Pardons’ role 

in monitoring his behavior and progress toward rehabilitation, his 

age, any ties between the crime and alcohol or drug addiction and 

his treatment prospects, the existence of a criminal history of 

violence, and the “Sentencing Commission’s guidelines.” (Citing 

LeBeau, 2014 UT 39, ¶¶ 52, 54.) 

¶98 However, as we made clear in State v. Martin, the 

district court does not have an obligation to consider anything the 

defendant does not raise. 2017 UT 63, ¶ 62, 423 P.3d 1254 

(“[W]hen a sentencing court commits an error that was not 

objected to below, an appellant must . . . show the existence of 

plain error or exceptional circumstances that would justify the 

exercise of our review.”). Rather, the district court need only 

consider the arguments and issues the defendant raises at 

sentencing. 

¶99 And as the court of appeals correctly observed, the 

district court considered all of the evidence and arguments 

Norton presented at sentencing. The district court acknowledged 

letters describing Norton as a good person, as well as letters 

describing Norton as a violent person. The court also 

acknowledged Norton was going through a devastating divorce 

but determined Norton’s behavior was still “way, way, way over 

the line.” Further, the court noted that a factor of the sentence was 

Norton’s “inability and unwillingness to follow the truth.” 

Ultimately, the district court decided Norton was “entitled to 

some mercy, but not what [his] lawyer [was] asking for.” 

¶100 But Norton argues that the district court failed to 

consider whether his sentence was proportional to sentences for 

other similar crimes. And he contends that he raised this at 

sentencing when he argued his conduct did not “rise to the level 

of the kinds of egregious cases where we have individuals who 

suffered significant loss of life or impairment.” But this is not 

enough. In Martin, we held a similar sentencing issue was 

unpreserved because counsel did not object to the analysis the 

district court used or identify the other offenses the court should 

take into consideration. Id. ¶¶ 64–66. Comparing sentences is 

“daunting” and “certainly not a task that we can require our 

district courts to perform without prompting or guidance from 
STATE v. NORTON

Opinion of the Court

26 

counsel.” Id. ¶ 66. Norton did not ask the district court to compare 

his sentence to sentences imposed for other offenses or identify 

what those other offenses might be. Accordingly, this issue is 

unpreserved. 

¶101 The district court adequately addressed the arguments 

Norton raised at sentencing. We affirm the court of appeals’ 

decision that the district court did not abuse its discretion by 

declining to reduce the presumptive sentence on the basis of the 

“interests of justice.” 

IV. CUMULATIVE ERROR 

¶102 Norton argues that the court of appeals erroneously 

rejected his cumulative error argument. An appellate court will 

reverse if “the cumulative effect of the several errors undermines 

[the court’s] confidence . . . that a fair trial was had.” State v. Kohl, 

2000 UT 35, ¶ 25, 999 P.2d 7 (second alteration in original) 

(citation omitted). However, we have identified only one error in 

Norton’s trial. A “single accumulable error cannot warrant 

reversal under the cumulative error doctrine.” State v. MartinezCastellanos, 2018 UT 46, ¶ 48, 428 P.3d 1038. We thus reject his 

cumulative error argument. 

V. LEBEAU SHOULD BE OVERRULED 

¶103 Although LeBeau v. State, 2014 UT 39, 337 P.3d 254 does 

not determine the outcome in this case, I write this section 

separately because I conclude LeBeau should be explicitly 

overturned. The holding in LeBeau contradicts the applicable 

statute’s plain language. And in so doing it takes the legislature’s 

policy choice to give judges discretion to sentence below the 

presumptive statutory tier and replaces it with a rigid, mandatory 

framework that applies even when a judge imposes the 

presumptive sentence. 

¶104 I agree with Justice Lee’s dissent in LeBeau, but I will not 

duplicate his analysis here. Instead, I add my own observations 

and apply the law outlined in Eldridge v. Johndrow, 2015 UT 21, 345 

P.3d 553, to argue that LeBeau should be overruled. 

¶105 When considering whether precedent should be 

overturned, we evaluate: “(1) the persuasiveness of the authority 

and reasoning on which the precedent was originally based, and 

(2) how firmly the precedent has become established in the law 

since it was handed down.” Id. ¶ 22. 

¶106 The first consideration—the persuasiveness of the 

authority and reasoning on which LeBeau is based—counsels in 

favor of overturning it. The opinion did not derive from prior 
Cite as: 2020 UT 46 

Opinion of the Court 

27 

authority. It was a fresh interpretation of a provision of Utah’s 

aggravated kidnapping statute, which I conclude is incorrect. 

Lebeau, 2014 UT 39, ¶ 25. 

¶107 The LeBeau court interpreted the sentencing scheme 

within the aggravated kidnapping statute.13 Id. ¶¶ 20–22; see also

UTAH CODE § 76-5-302(3), (4) (2014). Subsection 302(3) of the 

statute establishes presumptive sentencing tiers for variations of 

aggravated kidnapping. Subsection 302(4) then states in relevant 

part, 

If, when imposing a sentence under Subsection 

(3)(a) or (b), a court finds that a lesser term than the 

term described in Subsection (3)(a) or (b) is in the 

interests of justice and states the reasons for this 

finding on the record, the court may impose a 

[lesser] term of imprisonment . . . . 

UTAH CODE § 76-5-302(4) (2014). 

¶108 Reading subsections 302(3) and (4) together, the LeBeau

court held that the district court was required to conduct “the 

interests-of-justice analysis laid out in subsection (4).”14 Lebeau, 

2014 UT 39, ¶ 21. And the LeBeau court defined the phrase 

“interests of justice” by looking to Eighth Amendment 

jurisprudence, see id. ¶¶ 38–41, and another provision of the 

criminal code setting forth “general goals of Utah’s criminal 

code.” Id. ¶ 34 (quoting UTAH CODE § 76-1-104 (2014)). These 

sources led the court to conclude that an “interests-of-justice 

analysis” required the sentencing court to consider a checklist of 

particulars: (1) proportionality, including “the gravity of the 

offense and the harshness of the penalty,” and “the sentence being 

imposed [compared to] sentences imposed for other crimes in 

Utah” and (2) the defendant’s capacity for rehabilitation, 

__________________________________________________________ 13 To be consistent with LeBeau v. State, 2014 UT 39, 337 P.3d 

254, I cite the 2014 version of the statute. 

14 The LeBeau court reasoned that because the provisions 

within subsection 302(3) (establishing the presumptive sentencing 

tiers for aggravated kidnapping) state that they are to be imposed 

“except as provided in Subsection . . . (4)” (the “interests of 

justice” provision), then courts must always conduct an interests 

of justice analysis to determine whether subsection (4) applies. 

LeBeau, 2014 UT 39, ¶ 21. And the court concluded that an 

“interests of justice analysis” required a judge to consider specific 

factors as described above, supra ¶ 97. 
STATE v. NORTON

Opinion of the Court

28 

including deference to the role of the Board of Pardons and 

Parole, the defendant’s age at the time of the crime, the extent that 

alcohol or drug addiction caused the offense, the presence of 

violence in the defendant’s criminal history, relevant Sentencing 

Commission guidelines, and “all relevant factors” to the 

defendant’s rehabilitative potential. Id. ¶¶ 42–55. 

¶109 But I find it unnecessary to go beyond the language of 

the statute to determine its meaning. Subsection 302(4) is 

straightforward. It directs that if the sentencing court finds it is “in 

the interests of justice” to sentence a defendant to a “lesser term” 

rather than the presumptive term, the court may do so if it states 

the reasons for this finding on the record. 

¶110 Two things seem clear from the plain language of this 

statute. First, it applies only if “a court finds that a lesser term” is 

in the interests of justice. Where, as here and in LeBeau, a judge 

sentences a defendant to the presumptive term, subsection 302(4) 

should not come into play. 

¶111 And second, this provision is permissive, not 

mandatory, and it does not require judges to consider a list of 

particulars. It states that judges “may” sentence below the 

presumptive sentencing tier if they determine it is in the “interests 

of justice.” The sole intent is to give judges discretion to impose a 

lesser term of imprisonment rather than making the presumptive 

tier mandatory. 

¶112 “May” is, of course, a permissive term. In this context it 

means to “be permitted to” or to “be a possibility.” May, BLACK’S 

LAW DICTIONARY (11th ed. 2019). 

¶113 And the phrase “interests of justice” is merely a 

“general placeholder for a principle of broad judicial discretion.” 

LeBeau, 2014 UT 39, ¶ 87 (Lee, J., dissenting). The LeBeau majority 

observed the many times that the phrase “interests of justice” can 

be found in the civil code, criminal code, rules of evidence, and 

rules of procedure. Id. ¶ 28. This reinforces my point. Various 

statutes and rules invoke the “interests of justice” to signal that 

judges have the discretion to consider whatever information is 

before them and do what is fair, proper, or just under the 

circumstances. See id. ¶ 90 (Lee, J., dissenting); see, e.g., UTAH CODE

§ 75-7-204(2)(b) (providing that a court “may entertain a 

proceeding regarding any matter involving a trust if . . . the 

interests of justice would be seriously impaired”); id. § 77-8a1(2)(d) (“When two or more defendants are jointly charged with 

any offense, they shall be tried jointly unless the court in its 

discretion on motion or otherwise orders separate trials consistent 
Cite as: 2020 UT 46 

Opinion of the Court 

29 

with the interests of justice.”); id. § 78B-1-136 (“It is the right of a 

witness to be protected from irrelevant, improper or insulting 

questions, and from harsh or insulting demeanor, to be detained 

only so long as the interests of justice require it . . . .”). 

¶114 However, LeBeau turns this statutory language on its 

head. It transforms the grant of discretion inherent in the phrase 

“interests of justice” into a prescribed analysis that judges must 

undertake. And it requires judges to perform this analysis even 

when they have applied the presumptive sentence. LeBeau, 2014 

UT 39, ¶ 55. These mandates are not found in the statute’s 

language. 

¶115 In determining whether precedent should be 

overturned, we also ask how firmly the precedent has become 

established in the law since it was handed down. To do so, we 

look to both the age of the precedent and the “extent to which 

people’s reliance on the precedent would create injustice or 

hardship if it were overturned.” Eldridge, 2015 UT 21, ¶¶ 22, 35. 

Other relevant considerations are how well the precedent has 

worked in practice and “whether the precedent has become 

inconsistent with other principles of law.” Id. ¶ 40. 

¶116 LeBeau was decided in 2014 and was not based on “any 

significant precursors in Utah law.” Id. ¶ 34. Since that time, it 

“has not been necessary to the outcome of many cases.” Id. ¶ 36. 

In its six years of existence, LeBeau has been cited approximately 

twenty-five times by this court, the court of appeals, and Utah’s 

federal courts. 

¶117 Prior to this case, this court has conducted a LeBeau

interests of justice analysis only one time in State v. Martin, 2017 

UT 63, 423 P.3d 1254. There, we declined to reverse a district court 

that had not undertaken a formal proportionality analysis on the 

record as required by LeBeau. Id. ¶ 66. We recognized the 

“daunting task” involved in undertaking a proportionality 

analysis: “[I]t is certainly not a task that we can require our 

district courts to perform without prompting or guidance from 

counsel.” Id.

¶118 Our court of appeals has handled most of the cases 

involving a LeBeau claim. Eighteen court of appeals opinions cite 

LeBeau. One is this case, and nine others cite LeBeau for other 

propositions—not the interests of justice analysis. That means 

there have been eight court of appeals cases involving a LeBeau

interests of justice claim. The court of appeals has only once 

concluded that LeBeau warranted a holding that a district court 

abused its discretion. See State v. Jaramillo, 2016 UT App 70, ¶ 44, 
STATE v. NORTON

Opinion of the Court

30 

372 P.3d 34. In every other case, the court of appeals either 

declined to conduct the LeBeau interests of justice analysis or 

decided there was no abuse of discretion. See, e.g., State v. Alvarez, 

2017 UT App 145, ¶ 4, 402 P.3d 191 (assuming “that the 

sentencing court duly considered the proportionality of [the 

defendant’s] sentence” because the defendant did not 

demonstrate “that [the court’s] presumption of appropriate 

sentencing consideration is inapplicable”); State v. Scott, 2017 UT 

App 103, ¶ 13, 400 P.3d 1172 (presuming “that the court fully 

considered all the information presented to it” and took into 

account “the relevant factors in determining [the defendant’s] 

sentence”); State v. Beagles, 2017 UT App 95, ¶ 9, 400 P.3d 1096 

(holding that the district court “balanced the aggravating and 

mitigating factors” and that its sentencing decision was within its 

discretion). 

¶119 And the court of appeals has sharply criticized LeBeau. 

In State v. Coombs, where a defendant raised an ineffective 

assistance of counsel claim because his counsel had not argued at 

sentencing that the district court should conduct the interests of 

justice analysis required by LeBeau, the court critiqued LeBeau: “In 

our view, LeBeau constitutes blatant policy-based ad hoc review of 

legislative action not typically undertaken by the judicial branch. 

We would hope that, given the appropriate opportunity, our 

supreme court will revisit whether LeBeau’s approach should 

continue.” 2019 UT App 7, ¶ 22 n.4, 438 P.3d 967 (citation 

omitted). The court of appeals concluded, “We cannot read LeBeau

and Martin as removing from defense counsel the discretion not to 

make certain arguments at sentencing. Every case is different and 

defense counsel must retain wide discretion in determining what 

arguments will best benefit a client under the totality of the 

circumstances.” Id. ¶ 21 n.3 (citation omitted). 

¶120 It appears that in the time since LeBeau was decided, 

appellate courts have responded to it by applying it narrowly. 

This suggests LeBeau’s mandates are not workable as written.15

¶121 On balance, the trouble with LeBeau is not so much its 

mandate that judges consider the interests of justice before 

imposing a sentence. After all, this is what judges already do. 

They receive and consider any testimony, evidence, or 

information that either party desires to present. UTAH CODE § 77-

__________________________________________________________ 15 Without published opinions, it is more difficult to determine 

how district courts have responded to its requirements. 
Cite as: 2020 UT 46 

Opinion of the Court 

31 

18-1(7). They give the defendant an opportunity to make a 

statement and present any mitigating information. And they give 

the prosecution a similar opportunity to present any information 

“material to the imposition of sentence.” UTAH R. CRIM. P. 22(a). 

They receive information about any victims of the offense. See

UTAH CODE § 77-38-4(1); see also id. § 77-18-1(5)(b)(i). They read 

any materials that have been submitted, such as a presentence 

report or letters. Id. § 77-18-1(5)(a)–(b). And defense counsel and 

the prosecutor use their professional judgment to choose which 

arguments to make and which information to highlight in support 

of their respective sentencing positions. Judges consider all of this, 

along with any applicable statutes and the sentencing guidelines, 

and impose the sentence they deem to be just under all the 

circumstances. State v. Russell, 791 P.2d 188, 192 (Utah 1990). 

¶122 Rather, the more serious problem with LeBeau is that 

instead of reading the “interests of justice” as a grant of discretion, 

the LeBeau court concluded this phrase requires judges to go 

through a prescribed checklist of factors at sentencing, and that 

judges must do so whether they impose a sentence less than the 

presumptive range or within it. 

¶123 This transforms a particular legislative policy decision 

into something else entirely. Here and in similarly worded 

statutes, the legislature has determined that Utah judges should 

have the discretion to sentence below the presumptive statutory 

term when they determine it is in the interests of justice—in other 

words, fair and just—to do so. This is a significant policy choice, 

which stands in contrast to other jurisdictions that have chosen to 

enact statutory mandatory minimum sentencing schemes that are 

binding upon judges in all but narrow circumstances. See, e.g., 18 

U.S.C. § 3553(e) (granting federal sentencing court authority to 

impose sentence below the statutory minimum only upon a 

government motion stating that the defendant gave “substantial 

assistance” in the investigation or prosecution of another person 

who has committed an offense); id. § 3553(f) (requiring a court to 

sentence without regard to a statutory minimum sentence when a 

defendant meets specific criteria). Instead of observing this 

fundamental aspect of the sentencing scheme enacted by the 

legislature, LeBeau transforms this general grant of discretion into 

something detailed and specific, which is not found in the text of 

the relevant statutes. 

¶124 Because I advocate for LeBeau to be overturned even 

though it does not determine the result in this case, the 

concurrence asserts that my analysis is an “act of judicial 

overreach.” See infra ¶ 130. I agree with the concurrence that the 
STATE v. NORTON

DURRANT, C.J., concurring in part and concurring in the judgment 

32 

doctrine of stare decisis is deeply rooted in our law. We should be 

extremely reluctant to overturn precedent. And generally, that 

means we will not revisit precedent when it does not dictate our 

holding in a particular case. 

¶125 But I conclude that the fact that LeBeau does not govern 

here—indeed, the fact that it “has not been necessary to the 

outcome of many cases,” Eldridge, 2015 UT 21, ¶ 36—indicates that 

it has not become firmly “established in the law since it was 

handed down,” id. ¶ 22. This, along with the court of appeals’ 

criticism of LeBeau and explicit request that this court “revisit 

whether LeBeau’s approach should continue,” Coombs, 2019 UT 

App 7, ¶ 22 n.4, suggests that LeBeau has not been workable in 

practice and weighs in favor of overruling it. 

¶126 For these reasons, I am persuaded that this is one of the 

rare occasions when we should overturn precedent. 

CONCLUSION 

¶127 We affirm all but one of the court of appeals’ 

determinations in this case. We conclude that any error in the jury 

instructions for aggravated sexual assault and the underlying 

offenses of rape and forcible sexual abuse did not prejudice 

Norton. Further, the district court was not required to instruct on 

any of the lesser included offenses Norton requested, except for 

sexual battery. And we determine that at sentencing, the district 

court did not err in imposing a punishment of fifteen years to life 

for aggravated sexual assault and properly considered all of the 

arguments and evidence before it.

¶128 With regard to our holding that the district court erred 

in not instructing the jury on sexual battery as a lesser included 

offense of the aggravated sexual assault charge based on forcible 

sexual abuse, we reverse the conviction and remand to the district 

court for a new trial.

CHIEF JUSTICE DURRANT, concurring in part and concurring in 

the judgment: 

¶129 Writing for the majority, Justice Petersen does an able 

and thorough job of addressing each of Mr. Norton’s challenges to 

his conviction. And she appropriately dismisses his LeBeau

challenge to his sentence as unpreserved. So far so good. We are 

therefore pleased to concur in the analysis and conclusions she 

sets forth in parts I through IV of her opinion. But then, she takes 
Cite as: 2020 UT 46 

DURRANT, C.J., concurring in part and concurring in the judgment 

33 

a surprising step. She goes on to address the question of whether 

the rule established in LeBeau16 should be overturned. This, 

despite the fact that the resolution of this question makes not one 

wit of difference to Mr. Norton’s case. Justice Petersen explicitly 

acknowledges as much, writing that LeBeau “does not determine 

the outcome in this case.”17 But the fact that this is done in plain 

sight makes it no less an act of judicial overreach. 

¶130 And Justice Petersen further flouts judicial restraint by 

not just reaching the issue unnecessarily, but then advocating to 

overturn LeBeau, a significant case that, whether right or wrong, is 

established precedent.18 The doctrine of stare decisis is deeply 

rooted in our law. There are reasons why we respect precedent. 

There are reasons why we are circumspect in overturning it. 

Precedent promotes predictability and stability in the incremental 

development of the law. It promotes faith in our judicial system. It 

underpins and informs virtually every decision we make as 

judges. This is not to say it is wholly inviolate. We, of course, do 

on occasion overturn a case. But we do not do it lightly. We do it 

reluctantly, cautiously, and with compelling reasons. And we 

should never do it gratuitously as Justice Petersen suggests we do 

here. For these reasons, we decline to join in part V of Justice 

Petersen’s opinion. 

__________________________________________________________ 16 LeBeau v. State, 2014 UT 39, 337 P.3d 254. 

17 Supra ¶ 105. 

18 See State v. Rowan, 2017 UT 88, ¶ 24, 416 P.3d 566 (Himonas, 

J., concurring) (explaining, in a concurrence joined by a majority 

of the court, that “our court declines to revisit established 

precedent unnecessarily”).