State v Norton

Norton appealed his kidnapping and related convictions and his sentence. The panel affirmed. It held that there was no prejudice from any error in not giving a mens rea instruction as to consent in the instructions for the rape and other sex offenses charged as there is no rational basis in the record for a jury to do anything but convict here given evidence Norton kidnapped his wife, threatened her with a firearm and wife made repeated verbal rejections of Norton’s requests for sex and the absence of any evidence which could support a finding of consent to any of the acts alleged. It held there was no error in refusing to give certain lesser included offense instructions as there was no evidence to support a conviction of sexual battery instead of aggravated sexual assault, Norton did not rely on the same facts the state used to prove aggravated kidnapping to support an instruction for unlawful detention and also failed to use the same facts used by the state to prove aggravated burglary to support an instruction for aggravate assault. It affirmed the sentences as there was no evidentiary support for an aggravated sexual abuse verdict based on attempt as both Norton and wife testified there was actual sexual intercourse and Norton’s  defense to the charge based on digital penetration was the penetration did not happen not that he tried and failed and thus the district court properly used the highest tier of sentencing for the sex offenses and the district court received and considered evidence of proportionality as the presumed 15 to life sentence and Norton’s rehabilitative potential and permissibly concluded the presumptive sentence was appropriate here.

State v Burnett

Burnett appealed his child sex abuse and rape convictions arguing ineffective assistance of counsel. The panel reversed and remanded. It held there was no ineffective assistance when counsel did to object to an expert witness testifying of symptoms that would raise a concern about a child being abused because the testimony was not based on an examination of victim and the questioning was permissibly phrased as whether certain symptoms were consistent with abuse and the expert did not testify about whether or not victim was abused or experience symptoms consistent with abuse and thus objection would have been futile. It held counsel was ineffective for not objecting to testimony about statistics about false accusations and victim truthfulness generally as such testimony has been declared inadmissible under Utah supreme court precedent for over 30 years, objection would have been sustained, there was no tactical reason to allow the testimony into evidence and Burnett was prejudiced as the expert in effect testified victim was telling the truth about the abuse, there was no independent evidence of the abuse beside victim’s testimony, the jury acquitted Burnett on charges not related to victim and the state highlighted the evidence of truthfulness in its closing argument.

Schleger v State and Utah State Hospital

Schleger appealed dismissal of their medical malpractice and wrongful death claims. The panel affirmed. It held that the one year limitations period for suit under Utah’s tort claim act does not toll during the prefilling procedures in medical malpractice suit as the statute governing medical malpractice specifically states that it does not affect the timeliness of a claim under the tort claim statute, held the Schleger suit was filed after the one year deadline and was thus properly dismissed and noted that claimants can meet all the deadlines by diligently pursuing their claims under both statues either simultaneously or sequentially.

State v Becker

Becker appealed the restitution order entered in his case. On remand from the Utah Supreme Court, the panel reversed and remanded for reimbursement holding the state presented no evidence connecting the attack here the restitution sought for an eye exam and new glasses.

In the Interest of E.A., N.L., E.L., and J.L. (S.A. v State)

S.A. appealed the termination of her parental rights. The panel reversed and remanded holding there was no evidence in the record that S.A.’s mental illness made her an unfit mother or that supported any other ground of termination.