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Tag: husband

My Husband Is Forcing Me to Get My Inheritance From Court From My Ex-husband’s (Deceased) Brothers Otherwise He Will Divorce Me. What Should I Do?

Talk to a good (a good) lawyer about whether you even have the right to “inherit” from your ex-husband’s brothers. Unless there are bizarre circumstances at work here, odds are you have no rights to your ex-husband’s brothers’ decedents’ estates. Talk to a good lawyer who handles wills and probate matters to find out. Heck, bring your husband along to the meeting, so that he learn first-hand from the lawyer himself (that way he can’t tell you that “you don’t understand” if you come back from the lawyer’s office by yourself and tell your husband what the lawyer told you).

As for a husband who threatens to divorce you if you don’t try to obtain a portion of your ex-husband’s brothers’ decedents’ estates, if this kind of behavior on his part is the norm in your marriage, you ought next to find out if this is mental illness, whether it’s behavior that can be corrected, whether he’ll recognize the behavior as wrong, or whether he’ll choose (regardless of why) to continue to conduct himself contemptibly. If your husband is chronically manipulating or emotionally abusing you without remorse, you may be better off without him.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://motherinlawmysteriesandconflicts.quora.com/My-husband-is-forcing-me-to-get-my-inheritance-from-court-from-my-ex-husband-s-deceased-brothers-otherwise-he-will-div-5

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Why Don’t All Divorced Wives Get Half of Their Husbands’ Property?

Because divorce is not about a spouse (man or woman) getting “half of everything”.

Depending upon whether a state is a “community property” state or an “equitable distribution” state, here is how property is divided between spouses in a divorce:

A community-property state is state in which spouses hold property that is acquired during marriage (other than property acquired by one spouse by inheritance, devise, or gift) as community property. Otherwise stated, all property that is acquired during the marriage by either spouse (other than property acquired by one spouse by inheritance, devise, or gift) or by both spouses together is jointly and equally owned and will be presumed to be divided in divorce equally between the divorcing spouses. Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

An equitable distribution state seeks to divide property in divorce in a fair, but not necessarily equal, manner. An equitable property state court can divide property between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including (but not limited to) a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, the length of the marriage, whether the property was acquired before or after marriage, and whether the property acquired by one spouse by inheritance, devise, or gift. The court may take into account the relative earning capacity of the spouses and the fault of either spouse (See Black’s Law Dictionary, 11th ed.). Equitable distribution is applied in the non-community property states.

So, does a spouse “get half of everything” in divorce? Possibly, but not always, and now you know why.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Why don’t all divorced wives get half of their husbands’ property? – Husbands and wives – Quora

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What are some ways to make the divorce rate drop?

First, some marriages need to end in divorce. That is why divorce exists. But divorce is not always the answer when one or both spouses is/are miserable. Far too many divorces are not only unnecessary, but take things from bad to worse. For those marriages that need not end in divorce, teach and exemplify: 

  • belief in God; 
  • trust—humbly—in God; 
  • that God’s plan for His children includes marriage and family (so He will help you when you and your spouse turn to Him for guidance and strength to overcome); 
  • love for and service to God;
    • Loving and serving God leads us to loving and serving others (especially your spouse and children). Loving and serving others leads us to love and to serve God. You cannot sustainably have one without the other; 
    • Go to church together and with your children. Associate with other families and learn from and support each other. It’s soothing and encouraging to see you’re not alone in the struggles couples and families face. It’s good to have others in your community to whom you can turn for support in good times and bad. 
  • mercy and forgiveness for human faults and frailties; 
    • Don’t demand perfection from your spouse or yourself—that’s impossible—but strive to be your best. Don’t exploit your spouse. 
    • This does not mean that wrongs go unpunished and unrestituted, but it does mean that “the punishment fit the crime,” as the saying goes; 
    • This does not mean that punishment be “curative”; See C.S. Lewis’s “The Humanitarian Theory of Punishment 
  • specifically in marriage and family: 
    • Marriage and family is a major purpose of our lives—it’s part of God’s plan for each of us; 
    • Marry because you want “us” to be happy, supported, and fulfilled together. If you marry merely for “what’s in it for me,” you’re not ready or worthy to marry; 
      • Being equals in marriage does not mean that you and your spouse are the same in every respect. Accept it. Adapt to it. Celebrate it. Don’t forget it. 
    • Be honest in your dealings with your spouse and worthy of trust. 
    • Accept that certain aspects of a good married life and of single life are incompatible, so those aspects of single life must be left behind and replaced to serve your role as a spouse and parent; 
    • Accept the bitter aspects of married and family life with the sweet; 
      • “Anyone who imagines that bliss is normal is going to waste a lot of time running around shouting that he’s been robbed. The fact is that most putts don’t drop, most beef is tough, most children grow up to just be people, most successful marriages require a high degree of mutual toleration, most jobs are more often dull than otherwise. Life is like an old time rail journey…delays…sidetracks, smoke, dust, cinders and jolts, interspersed only occasionally by beautiful vistas and thrilling burst of speed.” — Gordon B. Hinckley 
    • Learn to make the compromises in your habits and lifestyle that marriage requires. 
      • Don’t die on the hill of whose responsibility it is to take out the trash, whether “breakfast for dinner” is untenable, etc. Go to movies and restaurants you don’t like sometimes, if going is something your spouse enjoys (he/she needs to make the same accommodations for you too). 
      • It will seem as though you are “making sacrifices” when in reality you are continuing to grow and mature as a person. You are developing dormant talents and new skills that a successful marriage needs to thrive. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-are-some-ways-to-make-the-divorce-rate-drop/answer/Eric-Johnson-311 

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Is it easier to get a divorce if you and your spouse have nothing shared?

Is it easier to get a divorce if you and your spouse have no debts, no shared property, and no children?

Typically, generally, usually, yes. In the overwhelming majority of cases. 

You identified three of the top four reasons, in my opinion, that divorces are acrimonious and bitterly fought over protracted and ruinously expensive periods of time (the fourth big reason is alimony). The fewer the reasons to fight, the faster, less expensively, less physically and emotionally burdensome, and easier the divorce process is. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-it-easier-to-get-a-divorce-if-you-and-your-spouse-have-no-debts-no-shared-property-and-no-children/answer/Eric-Johnson-311  

 

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Nix v. Nix – 2022 UT App 83- insufficient evidence of adultery

2022 UT App 83

THE UTAH COURT OF APPEALS

JILL NIX,

Appellee,

v.

ROLAND COMPTON NIX JR.,

Appellant.

Opinion

No. 20200691-CA

Filed June 30, 2022

Fourth District Court, Provo Department

The Honorable Darold J. McDade

No. 174402122

Seth D. Needs, Attorney for Appellant

D. Grant Dickinson, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred.

TENNEY, Judge:

¶1        Under the Utah Code, there are ten “[g]rounds for divorce,” one of which is “adultery committed by the respondent subsequent to marriage.” Utah Code Ann. § 30-3-1(3)(b) (LexisNexis 2019). Interpreting this provision, our supreme court has held that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts” of infidelity. Vrontikis v. Vrontikis, 358 P.2d 632, 632 (Utah 1961).

¶2        When Jill Nix filed for divorce from Roland Nix Jr., she alleged “adultery committed by Roland during the marriage” as one of “the grounds for dissolution of this marriage.” During his subsequent deposition, Roland declined to answer a question from Jill’s attorney about whether he’d had extramarital sexual relations “since the marriage.” The district court later concluded that this non-response constituted an adoptive admission that Roland had committed adultery before Jill filed for divorce. Based on this conclusion, the court awarded Jill a divorce on the ground of adultery.

¶3        Roland now appeals that decision. As explained below, we agree that Roland’s non-response did not provide sufficient evidence to establish that Roland committed adultery before Jill filed her divorce petition. We accordingly reverse.

BACKGROUND[1]

¶4        Jill filed for divorce from Roland in August 2017. In her petition, Jill asserted two “grounds for dissolution of [the] marriage,” one of which was “adultery committed by Roland during the marriage.” Jill also asserted cruelty as an alternative ground for divorce. But that alternative ground was not further litigated below, the district court never ruled on it, and neither party has raised any issue about it on appeal.

¶5        In his answer, Roland “denie[d]” Jill’s “[g]rounds.” But Roland did not want the marriage to continue, so he counter-petitioned for divorce on the ground of irreconcilable differences.

¶6        Roland was later deposed. During his deposition, the following exchange occurred between Jill’s counsel, Roland, and Roland’s counsel:

[Jill’s counsel:] Have you had any sexual relations with someone other than Jill since the marriage?

[Roland:] It is none of your business.

[Jill’s counsel:] Counsel I am entitled to know.

[Roland’s counsel:] I question the relevance. I don’t think that adultery or anything has been alleged in the pleadings.

. . . .

[Roland:] We are separated and that is none of their business.

. . . . [brief break taken by the parties]

[Jill’s counsel:] We left on the question of adultery. Mr. Nix what is your response?

After another objection and then more discussion between counsel, Roland made a somewhat vague reference to a woman with whom he’d apparently had some type of relationship. A short time later, Roland was asked, “And have you engaged in sexual relations with this person?” Roland answered, “Yes.”

¶7        Roland and Jill eventually settled most aspects of their divorce. But when they weren’t able to agree on the ground for divorce, Jill’s counsel requested a trial on that issue. At a scheduling conference, however, the parties and the court agreed on an alternative procedure under which the parties would submit memoranda about the ground for divorce, after which the court would hear oral argument on the matter.

¶8        In her memorandum, Jill pointed to Roland’s non-response to the deposition question of whether he’d “had any sexual relations with someone other than Jill since the marriage.” From this, Jill asked the court to draw “an adverse inference” that Roland had “committed adultery subsequent to the marriage.” In addition, Jill pointed to Roland’s express admission that he’d “engaged in sexual relations with this person.”

¶9        In his responsive memorandum, Roland asked the court to deny Jill’s request for an adultery-based divorce. Roland asserted that under Vrontikis v. Vrontikis, 358 P.2d 632 (Utah 1961), any adultery that he had committed after Jill filed for divorce could not constitute a ground for divorce. And Roland then argued that Jill had offered no evidence that he had “committed adultery prior to her filing for divorce.”

¶10      After briefing and then a hearing, the district court issued a written decision. There, the court agreed that under Vrontikis, “adulterous conduct subsequent to a divorce petition does not constitute fault,” but that “evidence of such conduct can be used to lend weight” to other evidence that the party had “committed adultery prior to the divorce petition.” (Emphases omitted.) The court then concluded that although Roland had expressly admitted to adultery in his deposition, this express admission had only been to “adultery subsequent to the divorce petition, but prior to divorce finalization.”[2]

¶11 Given its understanding of Vrontikis, the court next considered whether there was any evidence of pre-filing adultery. The court concluded that there was. In the court’s view, Roland’s non-response to the deposition question about whether he’d had sexual relations “since the marriage” qualified as an adoptive admission under rule 801(d)(2)(B) of the Utah Rules of Evidence. Notably, the court not only regarded this as proof “that Roland did commit adultery,” but also as proof “that Roland’s adultery caused the divorce,” i.e., proof that the adultery happened pre-filing. Thus, the court concluded that even if “Roland’s express admission [was] not, stand[ing] alone, a grounds for fault, the adoptive admission satisfie[d] Jill’s burden to show that Roland’s adultery caused the divorce.” Based on this, the court later “awarded Jill a decree of divorce on the grounds of adultery.”

¶12 Roland subsequently filed a motion under rule 59 of the Utah Rules of Civil Procedure “for [a] new trial or for an alteration of judgment on the issue of grounds for divorce.” Roland challenged the district court’s ruling on several fronts, including procedural fairness, incorrect application of the adoptive admission standard, and insufficiency of the evidence. After Jill opposed the motion, the court denied it. Roland timely appealed.

ISSUE AND STANDARD OF REVIEW

¶13      Roland challenges the district court’s denial of his rule 59 motion. As he did below, Roland assails this ruling for several reasons. We need address only one of them: Roland’s contention that there was insufficient evidence to support the court’s determination that he committed adultery before Jill filed for divorce.

¶14      A district court ordinarily has “some discretion in deciding whether or not to grant a new trial.” Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988). But because Roland’s “challenge rests on a claim of insufficiency of the evidence, we will reverse only if, viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict.” In re Estate of Anderson, 2016 UT App 179, ¶ 7, 381 P.3d 1179 (quotation simplified); accord Hansen, 761 P.2d at 17.

ANALYSIS

¶15      The district court determined that Roland had committed adultery before Jill filed for divorce. It based this determination on Roland’s non-response to a question about this subject in his deposition, which the court regarded as an adoptive admission of pre-filing adultery.

¶16      On appeal, Roland first argues that the district court erred in concluding that his non-response qualified as an adoptive admission. But we need not decide whether this was so. Even assuming for the sake of argument that the non-response did qualify as an adoptive admission, the court was still required to point to some evidence that Roland had committed adultery before Jill filed for divorce. See Vrontikis v. Vrontikis, 358 P.2d 632, 632 (Utah 1961) (holding that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts” of infidelity).

¶17      Roland argues that there was no such evidence. Of note, Roland points out that, in the deposition exchange at issue, he “was never specifically asked whether he had had sexual relations with someone other than Jill since the marriage, but prior to the filing of the petition for divorce.” Having reviewed the portion of the deposition that is in the record, we agree. While Jill’s counsel asked Roland whether he had engaged in extramarital sexual relations, Jill’s counsel never asked Roland when he had done so. As a result, with respect to the critical issue of timing, the question and non-answer that supported the court’s adoptive-admission determination were silent.

¶18 Jill nevertheless points to Roland’s express admission of adultery. But on this, the district court only found that Roland had expressly admitted to postfiling adultery, and Jill has not challenged the court’s temporal limitation of its own finding on appeal. In any event, we’ve reviewed the exchange ourselves. We see nothing in it in which Roland said that his extramarital conduct was limited to post-filing behavior, but we also see nothing in it in which he admitted to any pre-filing conduct. Instead, as with the (alleged) adoptive admission, the timing of Roland’s behavior simply never came up.

¶19      This same defect exists with respect to the small amount of other evidence that Jill provided below to inferentially support her claims about Roland’s adultery. For example, Jill provided the court with a check that Roland had given her for alimony. This check was embossed with a picture of Roland and another woman, and in the identification block in the upper corner, it identified the other woman’s last name as “Nix.” Even accepting Jill’s contention that this could inferentially show that there was a sexual relationship between Roland and the other woman, what matters here is that the check was dated September 2019—which was after Jill had filed for divorce.

¶20      This leaves us with Jill’s final argument, which is to rely heavily on the favorable standard of review. Because Roland challenges the district court’s ruling on sufficiency grounds, we’re required to view the evidence in the light most favorable to the district court’s determination. But Roland’s argument presents us with a “no evidence” challenge—i.e., he argues that “even with the evidence in the record, nothing would demonstrate that . . . Roland committed adultery prior to the filing of the Petition for Divorce.” And to defeat such a claim, Jill “need only point to a scintilla of credible evidence from the record that supports the finding of fact in order to overcome [Roland’s] ‘no evidence’ assertion.” Wilson Supply, Inc. v. Fraden Mfg. Corp., 2002 UT 94, ¶ 22, 54 P.3d 1177.

¶21 She hasn’t. Even on such a review, there must be some evidence to support the determination in question. As we have explained in another context, a “reviewing court will stretch the evidentiary fabric as far as it will go,” but “this does not mean that the court can take a speculative leap across a remaining gap in order to sustain a verdict.” State v. Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827 (quotation simplified). Here, the evidence demonstrates that Roland engaged in sexual activity with another woman before his divorce was finalized. After all, he expressly admitted as much. But Vrontikis requires evidence of adultery at a particular time—namely, before the petitioner filed for divorce. Jill points to no evidence, and we see none, that even inferentially says anything about when Roland engaged in extramarital sexual activity. Without such evidence, the district court’s finding that Roland had engaged in pre-filing extramarital sexual relations cannot stand. We accordingly reverse for insufficient evidence.[3]

CONCLUSION

¶22 There was insufficient evidence to support the district court’s determination that Roland committed adultery before Jill filed for divorce. We accordingly reverse that decision and remand this case for further proceedings consistent with this opinion.[4]


[1] Because the parties share the same last name, we’ll follow our normal practice and refer to them by their first names, with no disrespect intended by the apparent informality. Also, for purposes of consistency and readability, we’ll use the parties’ first names (and corresponding pronouns) when quoting references to them from the record or the briefing, and we’ll do so without using brackets to note any such alterations.

[2] We note that Roland did not actually draw this chronological line in the portion of the deposition in which he made his express admission. But neither party has challenged the court’s determination that the express admission was only to post-filing adulterous conduct.

[3] Our determination leaves a potential wrinkle about what should happen next. At the close of his brief, Roland asks us to not only reverse on insufficiency grounds, but also to “alter the Ruling” ourselves to grant him a divorce on “the grounds of irreconcilable differences.” Roland provides us with no authority that establishes our ability to modify an order in this manner, however, so this request is inadequately briefed. Moreover, Jill petitioned for divorce on an alternative ground, but neither party on appeal has competently briefed the question of whether Jill would be entitled to continue litigating that ground if we reverse the district court’s adultery-based decree. Without such briefing, we decline to decide the question in the first instance.

[4] Jill has asked for her attorney fees on appeal. See Utah R. App. P. 24(a)(9). Because she is not the prevailing party in this appeal, we deny her request.

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Judge says stay away from my paramour. Can judge do that?

Judge says stay away from my paramour. Can judge do that?

I became pregnant by my paramour after my husband and I separated. The court order states we are not to have paramours around our child. Will the judge take custody from me if I have my paramour around due to the situation?

I assume that your question is based upon a situation in which:

  • you and your husband have a child together (we’ll call that child “Child A”).
  • you and your husband are separated.
  • there is a divorce case pending, and the court has ordered that your paramour can not be around Child A (which is not an unusual order for courts to make, by the way).
  • at some point, whether before or after separation, you were impregnated by your paramour.

Now that you are pregnant by your paramour, it appears that both you and your paramour wants to be together to support one another during your pregnancy and be a witness to the miracle of birth as it unfolds. That’s understandable.

But there’s this court order that prohibits you from being with your paramour when you are with Child A. And you appear to want your paramour with you when you are with Child A. And you wonder whether the court would take custody of Child A from you if you violate the court’s order.

Your questions are essentially: is the court’s order fair? And will I lose custody if I disobey the court’s order?

The answers to your question (and for anyone in your situation) are:

Yes, the court’s order is fair. Reasonable minds can differ as to whether it is necessary that you be ordered to bar your paramour from being with you when Child A is also with you, but if a court concludes that having the paramour around might confuse the child as to who the child’s parent is and that exposing a child to adulterous relationships and/or that shacking up is morally and pragmatically unwise is well within a judge’s rational and sound discretion.

Yes, a court could base, in whole or in part, a decision to award custody of Child A to your husband upon the fact that you are disobeying its order barring you from being with your paramour when you are with Child A. Why? Because violating court orders shows that you cannot be trusted, that you place your interests ahead of law and order and/or ahead of what the court deems best for your child. Solution: don’t have your paramour around when you are scheduled to spend time with Child A. Is this hard? Perhaps. Is it worth it to ensure you don’t lose custody or parental rights? Of course.

https://www.quora.com/I-became-pregnant-by-my-paramour-after-my-husband-and-I-separated-The-court-order-states-we-are-not-to-have-paramours-around-our-child-Will-judge-take-custody-from-me-if-I-have-my-paramour-around-due-to-the/answer/Eric-Johnson-311?prompt_topic_bio=1

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Married a short time. He demands discovery going back years. Can he?

Married a short time. He demands discovery going back years. Can he?

Married 16 months. He became abusive almost immediately after. I filed for divorce. He and his attorney is requesting bank statements and my previous divorce information -real estate sales, bankruptcy, etc. from my last marriage prior to this marriage. Can They? They may be well within their rights to seek this kind of information, if the reason he and his attorney are doing so because you are seeking alimony. Things like your bank statements, real estate sales, and bankruptcy documents provide information as to your earning capacity, how capable you are of supporting yourself, and lifestyle costs—that’s all highly relevant and thus clearly discoverable information on the issue of alimony. If you are concerned that your husband and his attorney are engaging in irrelevant, burdensome, harassing, abusive discovery tactics, get your own attorney to find out, and if your attorney honestly believes the discovery is inappropriate/unnecessary, your attorney can ask the court to review the matter to see if the court agrees. If the court agrees, it can bar your husband and attorney from engaging in that kind of thing.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Married16-months-He-became-abusive-almost-immediately-after-I-filed-for-divorce-His-attorney-is-requesting-bank-statements-and-my-prior-divorce-information-real-estate-sales-bankruptcy-etc-from-my-last-marriage/answer/Eric-Johnson-311

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State v. Drommond – 2020 UT 50 – Utah Supreme Court

2020 UT 50 IN THE SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH, Appellee,
v.
DAVID EDWARD DROMMOND, JR., Appellant.
No. 20080252
Heard April 30, 2013
Reheard February 10, 2020
Filed July 17, 2020
On Direct Appeal
Second District, Farmington
The Honorable Jon M. Memmott
The Honorable Robert J. Dale
No. 051701317
Attorneys:
Sean D. Reyes, Att‘y Gen., Christopher D. Ballard,
Asst. Solic. Gen., Salt Lake City, for appellee
Scott L. Wiggins, Salt Lake City, for appellant
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 David Drommond, Jr., shot and killed his ex-wife. After he pleaded guilty to aggravated murder, Drommond was sentenced by a jury at a penalty-phase trial to life in prison without the possibility of parole—not to twenty years to life in prison with the possibility of parole as he had hoped. Drommond challenges that sentence, arguing that it should not stand because his penalty-phase trial was fraught with mistakes and his trial counsel was ineffective. We affirm.

BACKGROUND

¶2 We split the facts into five sections. The first section recounts Drommond‘s murder of his ex-wife and how he later pleaded guilty to aggravated murder, in part so the State wouldn‘t seek the death penalty. The second summarizes pretrial motions that Drommond‘s counsel filed and the trial court‘s corresponding rulings. The third details the evidence at Drommond‘s penalty-phase trial. The fourth depicts the trial‘s closing arguments and the jury‘s verdict. And the last describes Drommond‘s appeal to this court and the later rule 23B hearing that the trial court held to enter findings of fact on one of Drommond‘s claims for ineffective assistance of counsel.

I. THE MURDER AND THE GUILTY PLEA

¶3 On the morning of August 28, 2005, Janeil Reed, Drommond‘s ex-wife, went with her father to Drommond‘s apartment to drop off their children for a visit. Reed‘s father, Neil Bradley, waited for her in the car. Upon arriving, the children ran up the stairs to Drommond‘s apartment door and were let inside. Reed went up the stairs to the door, too, carrying a box of items that Drommond had asked her to bring.

¶4 Reed and Drommond stood just inside the doorway, talking. The conversation ended abruptly when Drommond pulled a handgun from his waistband and shot Reed once, hitting her in the arm and chest area. Reed screamed and stumbled back, falling partway down the front stairs of the apartment. Drommond followed her, stepping out of the doorway to the top of the stairs. He then raised the gun (so that it was three or four feet from Reed‘s head) and pulled the trigger again, this time shooting her in the head. She died very quickly.

¶5 Hearing the shots, Bradley darted from his car toward Drommond, hoping to detain him. At the same time, Drommond‘s roommate, Ryan Zimmer—who had been outside as well—came toward Drommond. Zimmer stopped when he saw that the Drommond children ―were just right inside the doorway‖ of the apartment. He told them to stay in the apartment and closed the door.

¶6 Bradley came running up the stairs toward Drommond, and Drommond shot him. The bullet pierced Bradley‘s arm and entered his body. (Bradley survived his wounds.) Bradley and Zimmer tried to wrestle the gun away from Drommond. They eventually received help from Jason Von Weller, a neighbor, who stripped the gun from Drommond. Drommond tried to get the gun back but was pinned down until the police arrived and arrested him.

¶7 The State charged Drommond with aggravated murder, attempted murder, and violating a protective order. Drommond was then evaluated for competency by four court-appointed psychologists: Randal Oster, John Malouf, Nancy Cohn, and Stephen Golding. Each psychologist diagnosed him with a different mental health problem, but each concluded that Drommond was competent to proceed.

¶8 Next, Drommond pleaded guilty to aggravated murder. As part of the plea deal, the State dismissed the remaining charges and agreed not to seek the death penalty.

II. THE PENALTY-PHASE TRIAL: PRETRIAL MOTIONS

¶9 After Drommond pleaded guilty to aggravated murder, a penalty-phase jury trial was held. The jury‘s task was to decide whether Drommond should serve a life sentence without the possibility of parole or twenty years to life with the possibility of parole.

¶10 Before the penalty-phase trial, Drommond filed two motions relevant to this appeal. First, he filed a motion asking the trial court for confrontation rights at sentencing. The trial court denied the motion, holding that hearsay would be admissible at the penalty-phase trial if (1) it was reliable, (2) Drommond had the opportunity to rebut it, and (3) it was not unfairly prejudicial. Second, Drommond filed a motion asking the court to limit impermissible victim-impact evidence at the penalty-phase trial. The court held that victim-impact evidence would be admissible at the penalty-phase trial as long as it wasn‘t ―unfairly prejudicial” and didn‘t ―make comparative judgments about the worth of the victim‘s life in comparison to the life of the defendant.”

III. THE PENALTY-PHASE TRIAL: EVIDENCE

¶11 The jury received evidence at trial about (A) Drommond‘s relationship with Reed, (B) his mental health problems after their divorce, (C) his desire to keep her from dating or marrying someone else, (D) his bipolar disorder at the time of the murder, (E) the murder itself, (F) his statements after the murder, and (G) the impact of the murder on the Drommond children. We summarize below the relevant parts of that testimony.

A. Drommond’s Relationship with Reed

¶12 Bradley (Reed‘s father) and Melina Yorke (Reed‘s friend) testified about Reed and Drommond‘s relationship, which began in 1994. According to Yorke, in August 1995, Reed told Yorke that she had talked to a male friend from high school at a music store, and that when Drommond found out that the two had talked, his temper snapped. Yorke said that Drommond choked Reed, leaving bruises on her neck.

¶13 Despite this incident, the couple married a short while later. Reed and Drommond later had two children. Bradley testified that when Drommond lost his job in about 2002, the marriage deteriorated, and, by the beginning of 2005, Reed and Drommond had divorced.

¶14 Bradley testified that soon after the divorce—in March 2005—Drommond strangled Reed to the point that she thought she would die because she had used his cell phone to call another man and had incurred a large bill. After the strangling, Reed obtained a protective order against Drommond, but she agreed to continue taking the children to visit him. Bradley testified that Drommond also frightened Reed with threatening emails in August 2005, causing Bradley to stay periodically at Reed‘s house at night.

B. Drommond’s Mental Health Problems After the Divorce

¶15 After the divorce, Drommond went to live with his parents and stayed there until June 2005. Dr. Linda Gummow—a neuropsychologist and Drommond‘s expert witness at trial— detailed much of Drommond‘s mental health history during this time.

¶16 Dr. Gummow first outlined Drommond‘s mental health. She said that Drommond was diagnosed with major depressive disorder at the end of 2004, and at the beginning of the next year, he was diagnosed with bipolar disorder. Bipolar disorder, explained Dr. Gummow, is ―a major mood disorder.” She further explained that, to be diagnosed with bipolar disorder, a person must have had at least one manic episode—which is an ―episode[] of very high mood, way beyond normal elation”—and episodes of depression, which are episodes of ―very extremely low moods.”

¶17 A few months after the divorce, testified Dr. Gummow, Drommond cut himself, attempted suicide several times, and had ―hostile thoughts” toward Reed and his own family. As a result, he was admitted to Lakeview Hospital at the beginning of May 2005, where he stayed for about five days.

¶18 Dr. Gummow said that while Drommond was at Lakeview Hospital, he was treated by several physicians and received many diagnoses of his mental health problems. At various times at the hospital, Drommond was diagnosed with bipolar disorder not otherwise specified (bipolar disorder NOS),[1] schizoaffective disorder, and—upon discharge—bipolar disorder one.[2]

¶19 Dr. Gummow testified that after being discharged from Lakeview Hospital, Drommond had ―no treatment” other than being ―given some bottles of pills.” Dr. Gummow said that this was a mistake—that he should have seen a mental health professional once a week, that ―his medication should have been monitored,” and that ―his moods should have been tracked very regularly.”

C. Drommond’s Desire to Prevent Reed from Dating or Marrying Someone Else

¶20 As mentioned above, Drommond lived with his parents after the divorce. But at the end June 2005—about a month after he was released from Lakeview Hospital—he moved into an apartment with some roommates.

¶21 Drommond‘s roommate, Rian Carlson, testified that, a couple of months before the murder, Drommond asked Carlson to get him a gun so the two could start a ―bounty hunter service” or, more accurately, so Drommond could have the gun to use as an ―an intimidation factor.” Carlson said that he obtained a handgun about a month before the murder and gave it to Drommond. That was the handgun that Drommond would use to murder Reed.

¶22 Carlson testified that he and Drommond eventually shared their “bounty hunter idea” with a friend named Michael Hansen. Carlson testified that Drommond talked with him and Hansen about how they were going to “scare” and “rough [] up” people who owed him money. The group never followed through with any of those plans, and the group‘s focus soon shifted to Reed.

¶23 Carlson explained at trial that Drommond found out that Reed was dating someone, and he didn‘t like it. He wanted to put a stop to it. So, testified Carlson, two or three weeks before the murder, Drommond talked with him and Hansen about scaring Reed out of dating by breaking into her house and cutting her phone line. Carlson told the jury that the group never did so but that Drommond did have Hansen drive by Reed‘s house and her boyfriend‘s house to “check it out.”

¶24 Detective Lloyd Kilpack, who investigated Reed‘s murder, testified that Hansen told him in an interview that Drommond even paid Hansen $400 to break into Reed‘s house to tell her not to marry her fiancé and to drive by Reed‘s house and her fiancé‘s to jot down the license plate numbers of the vehicles parked outside.[3] (Hansen never did so.) Detective Kilpack also testified that Hansen told him that, on the day before the murder, Drommond again asked Hansen to break into Reed‘s house and scare her out of getting married, reminding Hansen that he had paid him $400 to do so. Detective Kilpack added that Hansen even showed him a text message from Drommond in “which Mr. Hansen was reminded that he was given $400 by Mr. Drommond for this particular situation and driving by the house.” According to Detective Kilpack‘s testimony, Hansen refused to go through with it and offered to return Drommond the money. Detective Kilpack testified that he saw the following text message from Drommond to Hansen in response: “I‘ve been doing this for years. Don‘t worry about it. I‘ll take care of this.” Apart from Kilpack‘s testimony about the text messages, we refer in this opinion to the testimony in this paragraph as the Kilpack–Hansen Hearsay Testimony.

D. Drommond’s Bipolar Disorder

¶25 Dr. Gummow testified that, when Drommond murdered Reed, he suffered from bipolar disorder NOS, childhood onset. This was important, she said, “because the bipolar disorder has a lot to do with Mr. Drommond‘s criminal behavior and understanding what happened, and also understanding what might happen in the future with regard to him.”

¶26 Dr. Gummow explained how people with bipolar disorder might generally behave. She explained that people experiencing a manic episode are “extremely active,” “talk too fast,” “move too fast,” and are “not rational.” She also said that those experiencing manic episodes are likely to “get involved in legal trouble” because, for example, “they‘re out and about and they irritate people, they get in fights”—all that, because they “don‘t know that they‘re high.” A person experiencing a manic episode “may think that they‘ve lost control of themselves,” said Dr. Gummow, “but often they‘re not aware of the fact that their behavior is going off the chart.” Dr. Gummow testified that bipolar disorder is “incurable”—that “it can be controlled, minimized, and people can be comfortable, but it‘s always there.”

¶27 Besides opining that Drommond had bipolar disorder NOS, Dr. Gummow also discussed the diagnoses of the four court-appointed psychologists who had determined that Drommond was competent. Each psychologist—none of whom were called as witnesses at trial—had diagnosed Drommond differently: bipolar disorder one (Dr. Oster); narcissistic personality disorder (Dr. Malouf); personality disorder not otherwise specified, with prominent narcissistic and borderline features (Dr. Cohn); and major depression and severe cluster B personality disorder (Dr. Golding).[4] Dr. Gummow conceded that Dr. Cohn‘s and Dr. Golding‘s diagnoses were supported by some evidence and that they would be harder to treat than bipolar disorder and that they couldn‘t be treated with medication.[5]

E. Evidence About the Murder

¶28 Several witnesses testified about the murder itself, too. The jury heard that Drommond shot Reed twice, that he shot Bradley too, and about the later struggle to disarm and subdue Drommond. See supra ¶¶ 3–8. And a medical examiner testified that an autopsy confirmed that Reed died from her wounds.

F. Drommond’s Postmurder Statements

¶29 The jury also heard testimony about things Drommond told Carlson, Sean Buchanan (Drommond‘s cellmate), and Kristina Shakespeare (Drommond‘s cousin) after the murder.

¶30 First, Carlson testified that when he went to visit Drommond in jail after the murder, Drommond expressed no remorse and seemed to think it was “a joke that he was there.”

¶31 Then, Detective Kilpack testified about his interview with Buchanan. Kilpack testified that Buchanan said that Drommond told him (1) that he wanted Reed‘s sister to be “taken out of the box;”(2) that he wanted Reed‘s sister‘s “neck broken” or for her to be “killed” so “she could not take care of his children;” (3) that he should have killed the entire Bradley family; (4) that he planned to be released from custody after six or seven years, after which “they will see I‘m crazy” and “that the bitch had it coming;” and (5) that “he had popped [Reed] with precision” and that as he said so, “he was smiling.” We refer to this testimony as the Kilpack– Buchanan Hearsay Testimony.

¶32 Detective Kilpack also testified about his interview with Kristina Shakespeare. Kilpack said that, in the interview, Shakespeare shared how Drommond told her after the murder that “he felt great because [Reed] was gone” and that “if he had the power to do so, he would kill the entire Bradley family.” We refer to this testimony as the Kilpack–Shakespeare Hearsay Testimony.

G. The Impact of the Murder on the Drommond Children

¶33 Finally, Reed‘s sister testified that Reed‘s children “miss their mother very much.” A photograph of Reed and her two children was also admitted into evidence.

IV. THE PENALTY-PHASE TRIAL: CLOSING ARGUMENTS, JURY INSTRUCTIONS, AND THE VERDICT

¶34 At the close of the penalty-phase trial, Drommond‘s counsel asked the jury to impose a sentence of twenty years to life in prison, rather than life in prison without the possibility of parole. Drommond‘s counsel claimed that this sentence was proper because, if Drommond were to have “structure” and “treatment,” he could “be normalized.”

¶35 After closing argument, Drommond asked the trial court for a special verdict, which would require the jury to find that any “uncharged crimes” presented at trial were proven beyond a reasonable doubt before it could consider them in the sentencing decision. The court rejected this request.

¶36 The jury then deliberated and sentenced Drommond to life in prison without the possibility of parole, and he appealed.

V. THE APPEAL AND THE RULE 23B REMAND

¶37 After appealing, Drommond filed a motion in 2010 under rule 23B of the Utah Rules of Appellate Procedure. He requested that we remand his case for an entry of finding of facts as to whether his trial counsel was ineffective because he failed to investigate and present expert testimony about the effects of one of Drommond‘s antidepressant medications, Effexor, on his bipolar disorder.[6]

¶38 After initially rejecting the rule 23B motion, we granted it in 2013. We remanded and directed the lower court to “enter findings of fact as to (1) any adverse effects of Effexor on [Drommond‘s] bipolar disorder, and (2) whether [Drommond‘s] trial counsel provided effective assistance when counsel failed to investigate and present expert testimony regarding the possible effects of Effexor on [Drommond‘s] bipolar disorder.”

¶39 At the rule 23B hearing, Drommond called two expert witnesses—both psychiatrists—to testify: Pablo Stewart and Peter Breggin. The State called its own expert psychiatrist, David Moulton.

¶40 Dr. Stewart testified that treatment with “pretty high doses of Effexor . . . alone could flip one into mania,” and that “even if [Drommond] stopped taking the medication, the mania [would have had] a life of its own.” He added that “once you‘re flipped into mania, then . . . you‘re in a manic state” and “that‘s going to run its course.”

¶41 In the same vein, Dr. Breggin testified that “Effexor causes aggression and impulsivity,” that it “should never be given to a patient with mania,” and that “it played a considerable role in [Drommond‘s] actions.” Dr. Breggin added that the “meds in combination with bipolar” caused Drommond to become very “disturbed” at Lakeview Hospital. Dr. Breggin said that “once he‘s that disturbed, that could last for months off the medication.” He opined that it wouldn‘t go away just “because [Drommond] stopped the meds,” and that “if he stopped the meds shortly before the violence, then he would have been in withdrawal.”

¶42 Contrary to Dr. Stewart and Dr. Breggin, Dr. Moulton (the State‘s expert witness) testified that “there‘s nothing in the medical literature that supports that mania in and of itself causes serious violence.” Dr. Moulton said that “we don‘t have evidence that [Effexor] lead[s] to homicide or increase[s] the homicide rate.” He added that “[i]f there‘s any interpretation to be made it‘s that people on [Effexor] would be less likely to commit a homicide [than] somebody that‘s not on [Effexor].” He also explained that antidepressant withdrawal causes a “flu-like reaction.” It “can cause malaise, headaches, nausea, vomiting, diarrhea,” and “some irritability, similar to the irritability someone might experience who has the flu.” But those symptoms go away within forty-eight to seventy-two hours or “almost immediately” after one resumes taking the medication.

¶43 After hearing the testimony, the rule 23B court first found that Dr. Moulton‘s testimony was “the most credible regarding the effects of Effexor on a person with Bipolar Disorder” because of his “training, education, experience, and the way he testified at the evidentiary hearing.” The court also found that Drommond “did not take his medications, including Effexor, in July or August 2005.” Most importantly, the court found that Drommond had not shown “by a preponderance of the evidence that the effects of

Effexor would [have] still [been] contributing to [his] mental state as late as August 28, 2005.”

¶44 The court then found that Drommond‘s trial counsel had been deficient by not investigating how Effexor affects people with bipolar disorder, but that Drommond wasn‘t prejudiced by the mistake ―[b]ecause the preponderance of the evidence does not support that Effexor contributed to [Drommond‘s] mental state at the time he committed the homicide.”

¶45 With the rule 23B proceedings concluded, we now decide Drommond‘s appeal. We have jurisdiction under Utah Code section 78A-3-102(3)(i).

STANDARD OF REVIEW

¶46 Drommond first maintains that he received ineffective assistance of counsel before and during the penalty-phase trial. When raised for the first time on appeal, an ineffective-assistance-of-counsel claim ―presents a question of law,” which we review for correctness. State v. Bedell, 2014 UT 1, ¶ 20, 322 P.3d 697 (citation omitted). And when a claim for ineffective assistance of counsel has been decided at a rule 23B hearing, we review the rule 23B court‘s ―purely factual findings for clear error, but review the application of the law to the facts for correctness.” Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d 739.

¶47 Drommond next claims that the trial court erred by holding that he had no constitutional right to confrontation at his penalty-phase trial. This is a question of law, and we review it for correctness. State v. Timmerman, 2009 UT 58, ¶ 7, 218 P.3d 590 (―Interpretations of federal and state constitutions are questions of law.”).

¶48 Drommond also argues that the trial court erred by ruling that the constitutional right to due process didn‘t preclude certain victim-impact evidence. This is also a question of law, and thus we review it for correctness. Id.

¶49 Drommond last claims that the trial court erred by refusing to instruct the jury that it could consider evidence of uncharged crimes only if it found that the State had proven them beyond a reasonable doubt. We review a trial court‘s ―refusal to give a jury instruction” for abuse of discretion. State v. Berriel, 2013 UT 19, ¶ 8, 299 P.3d 1133 (citation omitted). We afford ―significant deference” on ―issues that are primarily or entirely factual” but ―little or no deference” on ―issues that are primarily or entirely legal.” Id.

ANALYSIS

¶50 Drommond raises four categories of errors on appeal: (1) that he received ineffective assistance of counsel, (2) that hearsay evidence violated his right to confrontation, (3) that victim-impact evidence violated his right to due process, and (4) that evidence of uncharged crimes violated his right to due process. Last, he asserts that the cumulative effect of these alleged errors requires a new penalty-phase trial. For the reasons we detail below, we reject each of these arguments and affirm the jury‘s verdict.[7]

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶51 Drommond argues that his trial counsel was ineffective and that, as a result, he was deprived of his constitutional right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. To show that counsel‘s assistance was ineffective, thus depriving a defendant of this right, the defendant must meet the two-pronged test that the United States Supreme Court set out in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires the defendant to show that (1) ―counsel‘s performance was deficient” and (2) ―the deficient performance prejudiced the defense.” Id. at 687; see also State v. Newton, 2020 UT 24, ¶ 20, — P.3d —.

¶52 Drommond contends that his trial counsel was ineffective in two ways: first, by not investigating and presenting evidence on how Effexor influenced his bipolar disorder at the time of the murder, and, second, by not presenting at the penalty-phase trial the expert testimony of all four court-appointed psychologists. We reject both claims. The first claim fails because, even assuming Drommond‘s trial counsel‘s performance was rendered deficient by his failure to investigate and present evidence about the effects of Effexor, Drommond wasn‘t prejudiced by it. The second claim fails because trial counsel wasn‘t deficient in not presenting the psychologists‘ testimony.

A. Ineffective Assistance of Counsel: Failure to Investigate and Present Evidence on Effects of Effexor

¶53 Drommond argues that he received ineffective assistance of counsel when his trial counsel failed to investigate the potential role Effexor played in the murder and present expert testimony about it. This claim was remanded to the rule 23B court for findings of fact. The rule 23B court found that, although Drommond‘s trial counsel was deficient in not investigating the effects of Effexor on bipolar disorder, that mistake didn‘t prejudice Drommond‘s defense. The court also found that trial counsel‘s overall trial strategy was reasonable.

¶54 Drommond disagrees with the rule 23B court‘s findings for two main reasons. First, he says that the court‘s findings of fact were clearly erroneous. Second, he argues that he was prejudiced by his counsel‘s failure to investigate and present evidence on the effects of Effexor on his bipolar disorder. After reviewing both claims, we conclude, first, that Drommond has not shown that the court‘s findings of fact are clearly erroneous and, second, that he suffered no prejudice as a result of his counsel‘s failure to investigate and present evidence on the effects of Effexor. This ineffective-assistance-of-counsel claim consequently fails.

  1. Findings of Fact

¶55 Drommond disagrees with two of the rule 23B court‘s findings of fact and contends that they are clearly erroneous. He challenges the court‘s findings that (1) Dr. Moulton was ―the most credible regarding the effects of Effexor on a person with Bipolar Disorder” and (2) Drommond ―did not take his medications, including Effexor, in July or August.” Drommond, however, hasn‘t met his burden of showing that the rule 23B court‘s findings of fact are clearly erroneous.

¶56 ―We defer to a trial court‘s findings of fact after a rule 23B hearing,” State v. Taylor, 947 P.2d 681, 685 (Utah 1997), and we review them only for clear error, State v. Sagal, 2019 UT App 95, ¶ 20, 444 P.3d 572, cert. denied, 456 P.3d 389 (Utah 2019). That means we set aside the rule 23B court‘s factual findings only if

they ―are against the clear weight of the evidence,” or if we ―otherwise reach[] a definite and firm conviction that a mistake has been made.” See State v. Walker, 743 P.2d 191, 193 (Utah 1987).

¶57 We start with Drommond‘s challenge to the finding that Dr. Moulton was ―the most credible regarding the effects of Effexor on a person with Bipolar Disorder.” The trial court based this finding on Dr. Moulton‘s ―training, education, [and] experience, and the way he testified at the evidentiary hearing.” Drommond asserts that this finding was ―unreasonable and against the clear weight of the evidence” for three reasons.

¶58 First, Drommond contends that Dr. Moulton wasn‘t credible because he admitted that he had been testifying from the wrong report during the rule 23B hearing. On cross-examination, Dr. Moulton admitted that he was testifying from an earlier version of his report, rather than from the latest version. He clarified, however, that he had created two reports, each dated one week apart from the other, and that his conclusions in each report were the same. The second report, he explained, had merely fine-tuned the first report by adding a heading and revising a few words and sentences for clarity. We think it a real stretch to say that such an innocuous mistake would render Dr. Moulton not credible.

¶59 Second, Drommond complains that Dr. Moulton wasn‘t credible because he referenced in his report a ―serotonin neuron reuptake inhibitor” but conceded in his testimony that such a thing doesn‘t exist. Dr. Moulton remedied this error at the rule 23B hearing, explaining that he had made a typographical error in his report. He had written ―serotonin neuron reuptake inhibitor”—which, he acknowledged, does not exist—instead of ―serotonin norepinephrine reuptake inhibitor.” Like the first error, this error in no way shows that Dr. Moulton wasn‘t credible; it shows only that he, like the rest of us, is prone to the occasional typo.

¶60 Third, Drommond complains that Dr. Moulton is not credible because his report ―was almost totally devoid of any clinical analysis” of Drommond. When asked about this on cross-examination, Dr. Moulton explained that he had not provided a diagnosis of Drommond because he wasn‘t asked to do so; he was asked only ―to provide what the effects of [Drommond‘s] medication may have had on this case.” Dr. Moulton said that he didn‘t dispute—indeed he supported—the conclusion that Drommond had bipolar disorder and that he therefore didn‘t need to do a clinical analysis. And, he said, a clinical analysis ―would not change [his] response that there is no medical literature that supports that [Effexor and other medications that Drommond had been prescribed] lead to serious violence.” Given that Dr. Moulton didn‘t dispute that Drommond had bipolar disorder, we cannot say that his decision not to perform his own clinical analysis of Drommond rendered him not credible.

¶61 In short, Drommond has not shown that the rule 23B court erred, much less clearly erred, in finding that Dr. Moulton was the most credible expert witness.

¶62 Besides challenging the court‘s finding that Dr. Moulton was the most credible expert, Drommond challenges the factual finding that Drommond ―did not take his medications, including Effexor, in July or August.” The rule 23B court found that Drommond ―stopped taking Effexor at least by July 2005.” We first examine the evidence supporting the finding, and then we address Drommond‘s arguments against it. We conclude that the rule 23B court didn‘t clearly err in finding that Drommond didn‘t take Effexor in July or August.

¶63 There was plenty of evidence that supported the finding that Drommond stopped taking Effexor by July 2005. Accordingly, the finding wasn‘t ―so lacking in support” that it is ―against the clear weight of the evidence.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 75, 99 P.3d 801. For example, trial counsel testified at the rule 23B hearing that the two bottles of Effexor that the police had seized after the murder—one of which had been filled in January, the other, in July—were full. That suggests that Drommond did not take Effexor in July 2005. Importantly, Drommond‘s trial counsel also testified that Drommond told him after the murder, ―I don‘t take those. I don‘t like them.” This evidence strongly supports the rule 23B court‘s finding that Drommond wasn‘t taking Effexor in July and August 2005.

¶64 Drommond asserts that these findings were clearly erroneous and that he ―proved by a preponderance of the evidence that he had been taking the Effexor up to approximately the time of the homicide.” To support his conclusion, Drommond points to (1) evidence that he filled his Effexor prescriptions in May, June, and July 2005; (2) evidence that the police—who seized two bottles of Effexor from Drommond‘s apartment after the murder—didn‘t record the exact number of pills in the bottles; (3) Dr. Breggin‘s      and    Dr. Stewart‘s testimonies  about Drommond‘s pharmacy records; (4) Drommond‘s mother‘s testimony that she checked the pill bottles and noticed that the number of pills had decreased; and (5) evidence that he requested his medication after his arrest. Drommond has presented some ―plausible evidence,” id. ¶ 73, that he didn‘t stop taking Effexor by July 2005, but he has not shown that the court‘s finding was ―so lacking in support” that it was ―against the clear weight of the evidence,” id. ¶ 75.

¶65 We start with Drommond‘s strongest evidence that he never stopped taking the medications—his first and fifth points. Drommond‘s first point—that he filled his prescriptions in May, June, and July 2005—is his strongest evidence that he had been taking Effexor in July and August 2005. But that he filled the prescriptions for Effexor is not direct evidence that he indeed took Effexor in July and August. And Drommond‘s fifth point—his request for Effexor after his arrest—is perhaps some evidence that he was taking the medication but doesn‘t establish that he was taking the medication before the murder. As the State suggests, ―a factual finding is not clearly erroneous merely because some contrary evidence exists.” See Taylor, 947 P.2d at 686 (holding that a rule 23B court‘s finding wasn‘t clearly erroneous because ―enough evidence” supported the court‘s finding even though the court could have found the opposite but didn‘t).

¶66 We finish with Drommond‘s other evidence that he was taking Effexor at the time of the murder (his second, third, and fourth points). The second point—that the police didn‘t record the number of pills in the bottles—simply shows that nobody knew exactly how many pills were in the bottles. But it didn‘t contradict Drommond‘s trial counsel‘s testimony that the bottles were full. The third point—which highlights testimony from Dr. Breggin and Dr. Stewart—also doesn‘t undermine the rule 23B court‘s finding. Although the psychiatrists testified that Drommond took Effexor in August, they had no firsthand knowledge of the matter. Drommond‘s fourth point—which is about his mother‘s testimony that he took Effexor —doesn‘t show that he took Effexor in July or August. His mother‘s testimony that Drommond took the medication referred only to a two-week period at some time after his stay at Lakeview Hospital and before he moved out of his parents‘ house at the end of June 2005. Her testimony, then, didn‘t contradict the court‘s finding that Drommond stopped taking Effexor by July 2005.

¶67 Drommond has failed to show that the rule 23B court‘s finding that he had not taken Effexor in July or August 2005 was against the clear weight of the evidence. As a result, it merits our deference.

  1. Lack of Prejudice

¶68 Drommond argues that his trial counsel rendered ineffective assistance when he failed to investigate and present evidence on the effects of Effexor on Drommond‘s bipolar disorder. We reject this claim because, even assuming Drommond‘s counsel was deficient in failing to investigate and present evidence on the effects of Effexor, Drommond was not prejudiced by that deficiency.

¶69 To determine whether Drommond was prejudiced (under the second prong of Strickland) by the failure to investigate and present evidence, the ultimate question we must answer is whether ―there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. ―A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. This inquiry requires us to consider whether the evidence that would have been presented if counsel‘s performance had not been deficient would have ―affect[ed] the ‘entire evidentiary picture.‘” Gregg v. State, 2012 UT 32, ¶ 26, 279 P.3d 396 (alteration in original) (citation omitted). Specifically, we ―consider the totality of the evidence, taking into account such factors as whether the errors affect the entire evidentiary picture or have an isolated effect and how strongly the verdict is supported by the record.” Id. (citation omitted); see also Caro v. Woodford, 280 F.3d 1247, 1256–57 (9th Cir. 2002) (―This inquiry . . . compels us to couple the omitted evidence with the mitigating evidence presented at trial and reweigh it against the aggravating evidence to determine whether the omitted evidence ‘might well have influenced the jury‘s appraisal of . . . [the defendant‘s] moral culpability.‘” (second and third alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 397–98 (2000)).

¶70 Drommond argues that the expert testimony flowing from a reasonable investigation ―could have documented . . . Drommond‘s mental status in the penalty phase trial” and could have given the jury ―an explanation of how the Effexor aggravated his Bipolar Disorder by switching him into a mania that took on a life of its own.” He also argues that ―[e]xpert testimony would have explained how the Effexor ‘flipped‘ or switched Mr. Drommond into a manic episode, unmasking his underlying psychiatric condition, and that the medication also caused untoward activating side effects that made any mania he might otherwise have experienced much more severe.” In short, Drommond believes that the evidence of ―Effexor and the whole pharmacologic mismanagement would have been mitigating evidence in the penalty phase trial” and would have ―humanize[d] and explain[ed]” Drommond.

¶71 The rule 23B court‘s findings cut against Drommond‘s arguments. The rule 23B court found that any expert testimony resulting from an investigation into the effects of Effexor would have shown only that Drommond‘s ―illness was mismanaged pharmacologically between December 30, 2004, and May 2, 2005 when he entered the hospital.” Such testimony, the rule 23B court explained, ―may have helped the jury understand some of his behavior during those months, but it wouldn‘t have mitigated [Drommond‘s] behavior in July and August, including August 28, 2005, the day of the homicide.” Critically, the rule 23B court found that ―the preponderance of the evidence [did] not support that Effexor contributed to [Drommond‘s] mental state at the time he committed the homicide.” Similarly, it found that the expert testimony wouldn‘t have shown that ―Effexor nor withdrawal from Effexor caused [Drommond] to commit a serious act of violence such as homicide or assault.”

¶72 Based on the rule 23B court‘s factual findings, the omitted evidence wouldn‘t have affected the entire evidentiary picture of the penalty-phase trial, nor helped mitigate Drommond‘s moral culpability. And Drommond has not shown that the rule 23B court‘s factual findings were clearly erroneous. Supra ¶¶ 55–67. So, contrary to what Drommond suggests, the omitted evidence wouldn‘t have shown that Effexor affected Drommond‘s actions on the day of the murder, thereby mitigating his culpability for the murder. The most it would‘ve done is perhaps mitigate his culpability for the March 2005 strangling incident. But there was other evidence besides the March 2005 strangling incident that Drommond acted with hostility toward Reed, even when not taking Effexor: testimony about the 1995 strangling incident, the threatening emails, Drommond‘s requests to his friends to scare her out of dating and marrying another man, and the murder itself. Thus any evidence about Effexor‘s effect on Drommond would have had an isolated effect on the evidentiary picture.

¶73 Deferring to the rule 23B court‘s factual findings, we conclude that there is no reasonable probability that the omitted evidence would have influenced the jury‘s appraisal of Drommond‘s moral culpability and thereby swayed the jury to give Drommond a more lenient sentence. Put differently, our confidence in the outcome of the penalty-phase trial has not at all been undermined. Thus, even assuming counsel rendered deficient performance by failing to investigate and present evidence on the effects of Effexor on Drommond‘s bipolar disorder, Drommond wasn‘t prejudiced by it. He, therefore, cannot show that counsel‘s failure to investigate and present mitigating evidence about the effects of Effexor on Drommond‘s bipolar disorder constituted ineffective assistance of counsel.

B. Ineffective Assistance of Counsel: Failure to Call the Court-Appointed Psychologists

¶74 Drommond also claims that his counsel was ineffective at the penalty-phase trial by limiting the expert evidence of Drommond‘s mental state to just Dr. Gummow‘s testimony. Drommond argues that counsel should have also used as mitigation evidence the evaluations and diagnoses of the four court-appointed psychologists who had evaluated him for competency just after the murder—those of Dr. Oster, Dr. Malouf, Dr. Cohn, and Dr. Golding. We hold that counsel‘s representation didn‘t fall below an objective standard of reasonableness. For this reason, this ineffective-assistance-of-counsel claim fails.

¶75 Drommond‘s trial counsel presented expert testimony about Drommond‘s mental health problems through Dr. Gummow only. Given its importance to this issue, we briefly recap parts of Dr. Gummow‘s trial testimony before analyzing whether trial counsel‘s performance was deficient.

¶76 Dr. Gummow documented Drommond‘s mental health problems and concluded that, at the time of the murder, Drommond had bipolar disorder NOS. Dr. Gummow claimed that Drommond‘s bipolar disorder had worsened before the murder because (1) he either hadn‘t been taking his medication or, if he had been, he had been on the wrong dosage and (2) “his life [had been] falling apart.” Also, she believed that Drommond “had not fully accepted the need for psychotropic medication.”

¶77 Dr. Gummow explained that, although bipolar disorder cannot be cured, it can be “controlled” and “minimized.” More importantly, she said that several factors suggested that Drommond had a good chance of managing his bipolar disorder going forward, in part because he now realized the importance of medication and was taking it.

¶78 Dr. Gummow also discussed the opinions of the four court-appointed psychologists who had diagnosed Drommond with different mental health problems, asserting that her diagnosis—bipolar disorder NOS—was “pretty consistent with everyone else‘s.”

¶79 Dr. Gummow testified that she had reviewed Dr. Oster‘s and Dr. Malouf‘s reports and relied on them in part in forming her opinion about Drommond. She acknowledged that Dr. Oster diagnosed Drommond with bipolar disorder one and that Dr. Malouf—who “was not completely convinced” that Drommond had a bipolar disorder—diagnosed Drommond with delusional disorder and “felt there was [a] more psychiatric process more akin to schizophrenia going on.” And, on cross-examination, Dr. Gummow agreed that Dr. Cohn‘s diagnosis (personality disorder not otherwise specified with narcissistic and borderline features) and Dr. Golding‘s diagnosis (severe cluster B personality disorder not otherwise specified) both found some support in the evidence. And if Dr. Cohn‘s and Dr. Golding‘s diagnoses were correct, she conceded, then treatment would be harder.

¶80 Then Dr. Gummow shared why she felt her diagnosis— bipolar disorder NOS—was more correct than theirs. She said that it was more accurate than that of Dr. Cohn and Dr. Golding because her diagnosis fell in line with those of the mental healthcare professionals who had treated Drommond on “multiple occasions” and who had “a much better vantage point” than did Dr. Cohn and Dr. Golding, who had seen only a “snapshot.”

¶81 Having reviewed Dr. Gummow‘s expert testimony, we now turn to whether Drommond‘s trial counsel was ineffective in his handling of the expert testimony on Drommond‘s mental state at the time of the murder. To meet the first prong of the Strickland standard, a defendant must show “that counsel‘s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. Put differently, a defendant must show that counsel‘s performance wasn‘t “reasonable[] under prevailing professional norms.” Id. at 688.

¶82 “There are . . . countless ways to provide effective assistance in any given case.” Harrington v. Richter, 562 U.S. 86, 106 (2011) (citation omitted) (internal quotation mark omitted). We need only discern whether the strategy chosen by trial counsel was one of those ways. Drommond‘s trial counsel chose to call as a witness a neuropsychologist who testified that she had diagnosed Drommond with bipolar disorder and who maintained that his bipolar disorder was treatable and that treatment would allow him to one day safely reenter society. In so doing, trial counsel chose to focus on that expert‘s diagnosis rather than the diagnoses of the four court-appointed competency psychologists whom he chose not to call as witnesses. We cannot say that this strategy was unreasonable; far from it.

¶83 If trial counsel had chosen the strategy advocated by Drommond on appeal—calling every court-appointed psychologist to testify— there would have been a serious risk of the jury believing that Drommond didn‘t have bipolar disorder and instead had a mental health problem that was harder to treat—i.e., a personality disorder. State v. Ott, 2010 UT 1, ¶ 39, 247 P.3d 344 (―We note that avoidance of drawing the jury‘s attention to certain facts or over-emphasizing aspects of the facts is a well-recognized trial strategy.‖). Indeed, on cross-examination, Dr. Gummow acknowledged that the diagnoses of Dr. Cohn (personality disorder not otherwise specified with narcissistic and borderline features) and Dr. Golding (severe cluster B personality disorder not otherwise specified) were also supported by the evidence and that they would be harder to treat than bipolar disorder.

¶84 Had trial counsel focused on these diagnoses, the jury may have been less likely to believe that Drommond‘s mental health problems could be treated and, as a result, less likely to impose a sentence that allowed for the possibility of parole. As a result, rather than calling all the psychologists to testify, reasonable counsel could have believed that the jury would feel that the diagnosis of bipolar disorder would be more mitigating than a personality disorder and so called an expert who had diagnosed Drommond with bipolar disorder. See George L. Blum, Annotation, Adequacy, Under Strickland Standard, of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case—Failure to Present Evidence Regarding Client’s Mental Illness or Dysfunction, Other than as Result of Lack of Investigation, 7 A.L.R. 7th Art. 3 (2016) (―Diagnoses of specific mental illnesses, which are associated with abnormalities of brain and can be treated with appropriate medication, are likely to be regarded by the jury in a capital case as more mitigating than generalized personality disorders, and for good reason, as involuntary physical alteration of brain structures, with its attendant effects on behavior, tends to diminish moral culpability, altering the causal relationship between impulse and action.”).

¶85 True, one other psychologist—Dr. Oster—diagnosed Drommond with a type of bipolar disorder, and trial counsel didn‘t call him as a witness. That testimony, however, would have been cumulative. And ―[a]dditional, but cumulative, evidence which could have been presented does not . . . establish ineffective assistance.” Parker v. Allen, 565 F.3d 1258, 1279 (11th Cir. 2009); see also Farina v. State, 937 So. 2d 612, 624 (Fla. 2006) (―[C]ounsel does not render ineffective assistance by failing to present cumulative evidence.”); State v. Oliver, 820 P.2d 474, 478 (Utah Ct. App. 1991) (holding that trial counsel wasn‘t deficient by failing to present evidence when ―[a]ny additional evidence would have been cumulative”). Moreover, Dr. Gummow acknowledged that Dr. Oster had also diagnosed Drommond with bipolar disorder. By calling only Dr. Gummow to testify, counsel enjoyed the best of both worlds: he bolstered Dr. Gummow‘s diagnosis with that of Dr. Oster without allowing Dr. Oster to be subject to the State‘s cross-examination—in which the State would have no doubt brought up once again Dr. Cohn‘s and Dr. Golding‘s less favorable diagnoses.

¶86 In short, Drommond‘s counsel wasn‘t deficient by choosing not to present the testimony of the four court-appointed competency experts. Drommond‘s second claim for ineffective assistance of counsel fails.

II. RIGHT TO CONFRONTATION

¶87 Drommond claims that his rights to confrontation under both the United States and Utah Constitutions were violated at trial because the jury heard certain hearsay statements, and he was unable to cross-examine the declarants of those statements. The State replies that the trial court didn‘t err because there is no constitutional right to confrontation at sentencing and, in any event, the testimony was reliable and not unfairly prejudicial.

¶88 We recognize below that our case law is somewhat inconsistent as to whether the right to confrontation applies at sentencing. But we need not decide the issue here because any error in admitting the hearsay statements was harmless beyond a reasonable doubt.

A. The Right to Confrontation at Sentencing Under the U.S. and Utah Constitutions

¶89 Drommond alleges that both the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, section 12 of the Utah Constitution apply at sentencing.[8] The Confrontation Clause provides that ―[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. Similarly, article I, section 12 of the Utah Constitution gives the accused ―[i]n criminal prosecutions . . . the right . . . to be confronted by the witnesses against him.” When the right to confrontation applies and a witness does not testify, a ―party can only introduce [the] witness‘s testimonial statements into evidence if the witness is unavailable to testify . . . and the opposing party had a prior opportunity to cross-examine.” State v. Timmerman, 2009 UT 58, ¶ 9, 218 P.3d 590.

¶90 The issue here is whether the right to confrontation applies at sentencing. We first discuss federal case law on this issue. Although the United States Supreme Court has never addressed it, every circuit court of appeals has. We then discuss our own case law on the issue. It is inconsistent and, for that reason, does not clearly resolve the issue before us.

¶91 We begin with federal case law. Whether the Confrontation Clause applies at sentencing has gone unanswered by the U.S. Supreme Court.[9] But every federal circuit court of appeals has held that there is no right to confront witnesses at sentencing under the Sixth Amendment‘s Confrontation Clause.[10]  So although there is no binding U.S. Supreme Court precedent, recent federal case law strongly suggests that the Confrontation Clause does not apply at sentencing.

¶92 Next, we put our own case law under the microscope. The Utah Supreme Court has applied both the state and federal right to confrontation at a sentencing proceeding. We did so in State v. Carter, 888 P.2d 629 (Utah 1995), superseded on other grounds by UTAH CODE § 76-3-207(2)(a)(iii) (1999).

¶93 There, the defendant challenged a statute as violating the right to confrontation under both the U.S. and Utah Constitutions. Id. at 641. The statute applied to capital resentencing proceedings. Id. It allowed all evidence properly admitted at trial and in previous sentencing proceedings—including all exhibits and a transcript of all testimony—to be admitted into evidence at the resentencing proceeding. Id. The defendant argued that the statute violated his right to confrontation. Id. In deciding the appeal, we didn‘t question whether the right to confrontation applies at sentencing; we took as a given that it does. Id. at 642 (determining that the capital resentencing statute implicated ―a capital defendant‘s right to confrontation”). And we incorporated into the resentencing statute ―the safeguards articulated by the United States Supreme Court in [Ohio v. Roberts, 448 U.S. 56, 66 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004)] and adopted by this court in [State v. Brooks, 638 P.2d 537, 539 (Utah 1981), abrogated by constitutional amendment as stated in State v. Goins, 2017 UT 61, ¶¶ 31–32, 45, 423 P.3d 1236].” Id. Roberts had held that an unavailable witness‘s hearsay statement could be admitted at trial under the Confrontation Clause only if the hearsay statement ―bears adequate ‗indicia of reliability,‘” such as when it ―falls within a firmly rooted hearsay exception.”[11] 448 U.S. at 66. In short, the Carter court applied article I, section 12 of the Utah Constitution and the Confrontation Clause of the U.S. Constitution without even questioning whether those provisions apply at sentencing. See 888 P.2d at 646.

¶94 We have found no Utah case that predates Carter that applied the constitutional right to confrontation (be it state or federal) at sentencing, and the parties haven‘t pointed us to one either. The only case within the same ballpark analyzed whether the defendant‘s right to due process was violated when the trial court relied on hearsay statements at sentencing and precluded the confrontation of certain witnesses at sentencing. See State v. Sanwick, 713 P.2d 707 (Utah 1986). There, we relied on an Idaho Supreme Court decision that held that “[h]earsay was admissible [at sentencing] as long as the defendant had the opportunity to rebut the adverse evidence and to challenge the reliability of the evidence presented.” Id. at 709 (citing State v. Johnson, 618 P.2d 759 (1980)).

¶95 Nor have we consistently applied our Carter decision in later cases. For example, we implied in State v. Kell, that the right to confrontation applies at sentencing, but we didn‘t mention Carter in that context or its requirements that the hearsay declarant be unavailable and that the hearsay statement bear adequate indicia of reliability. 2002 UT 106, ¶¶ 43–44, 61 P.3d 1019. And later, in Taylor v. State, we held that the defendant‘s appellate counsel wasn‘t ineffective for failing to challenge the trial court‘s 1991 admission of hearsay evidence at sentencing. 2007 UT 12, ¶ 108, 156 P.3d 739. Citing Carter and Sanwick, we reasoned that when the defendant appealed in 1991, “hearsay evidence generally was considered to be admissible at sentencing” as long as the hearsay was “reliable” and the defendant was “given the opportunity to rebut the evidence.” Id. In dicta, we said that the U.S. Supreme Court‘s Crawford opinion had “triggered some debate as to whether confrontation rights apply to sentencing.” Id. ¶ 108 n.4. But because the issue wasn‘t determinative in that case, we didn‘t address it. Id.

¶96 Next, in State v. Timmerman, while analyzing whether one has a constitutional right to confrontation at preliminary hearings, we held that three U.S. Supreme Court cases ―establish Supreme Court precedent confining the Sixth Amendment Confrontation Clause to trial.” 2009 UT 58, ¶ 11, 218 P.3d 590. (emphases added) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion); California v. Green, 399 U.S. 149, 157 (1970); Barber v. Page, 390 U.S. 719, 725 (1968)); see also State v. Rhinehart, 2006 UT App 517, ¶ 14, 153 P.3d 830 (―The Confrontation Clause pertains to a criminal defendant‘s right to confront and cross-examine the witnesses against the defendant at trial . . . .” (emphasis added)). And, we held, because the federal Confrontation Clause applies only at trial, it ―does not apply to preliminary hearings.” Timmerman, 2009 UT 58, ¶ 13. So if, as Timmerman held, the Confrontation Clause is confined to trial, then it wouldn‘t provide a right to confrontation at sentencing (assuming sentencing is not part of trial). See United States v. Ray, 578 F.3d 184, 196 (2d Cir. 2009) (―[W]e conclude that the word ‗trial,‘ as understood at the time of the Founding, would not have encompassed sentencing proceedings.”). But see John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 COLUM. L. REV. 1967, 1973 (2005) (concluding that, in 1791, ―[t]here was no distinction between trial rights and sentencing rights because, in both purpose and effect, the trial was the sentencing”).

¶97 And, most recently, we said in State v. Maestas, that ―we have never analyzed whether a defendant in a penalty phase should be afforded the right to confront witnesses.” 2012 UT 46, ¶ 297, 299 P.3d 892. We said so without citing Sanwick, Carter, Kell, Taylor, or Timmerman. Id. And we didn‘t decide whether the right applied at sentencing in Maestas because we held that any alleged error in that case was harmless. Id. ¶ 298.

¶98 Taken together, our case law is somewhat contradictory as to whether the constitutional right to confrontation applies at sentencing, and, if so, how that right is satisfied. All in all, the arc of both our case law and federal case law seems to bend away from applying the right to confrontation at sentencing. But this is not the case for us to decide this issue because, even assuming the right to confrontation does apply at sentencing (or at the very least, at capital sentencing), any error in Drommond‘s case was harmless beyond a reasonable doubt. Kell, 2002 UT 106, ¶ 54 (declining to reach constitutional questions when any potential error wasn‘t prejudicial). We look forward, however, to resolving this issue in a future case in which it is necessary to do so. See, e.g., State v. Argueta, 2020 UT 41, ¶ 55, — P.3d —.

B. Any Error Was Harmless Beyond a Reasonable Doubt

¶99 The hearsay statements that Drommond complains of all came from Detective Kilpack‘s testimony: the Kilpack–Hansen Hearsay Testimony, the Kilpack–Buchanan Hearsay Testimony, and the Kilpack–Shakespeare Hearsay Testimony. See supra ¶¶ 24, 31–32. Neither Hansen, Buchanan, nor Shakespeare testified at the penalty-phase trial. The State contends that any error in allowing Detective Kilpack to testify about these witnesses‘ statements was harmless beyond a reasonable doubt. We first determine that Drommond did not preserve his objection to the Kilpack– Shakespeare Hearsay Testimony. We then hold that any constitutional error in admitting the Kilpack–Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay Testimony was indeed harmless beyond a reasonable doubt.

  1. Preservation Issues

¶100 Drommond did not preserve his assertion that the Kilpack–Shakespeare Hearsay Testimony was improperly admitted into evidence. To preserve an issue for appeal, a party must raise a ―timely and specific objection.” State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (citation omitted). Only then will the alleged errors come ―to the trial court‘s attention to give the court an opportunity to correct the errors if appropriate.” Id. (citation omitted). And if ―there is no clear or specific objection and the specific ground for objection is not clear from the context[,] the theory cannot be raised on appeal.” Id. (alteration in original) (citation omitted).

¶101 Because Drommond didn‘t raise a timely and specific objection to the Kilpack–Shakespeare Hearsay Testimony, Drommond failed to preserve his argument that it was improperly admitted into evidence. In his argument before the penalty-phase trial for the right to confront witnesses, Drommond‘s counsel excluded Shakespeare: ―There‘s one witness that‘s a cousin and her name is . . . Shakespeare. . . . She‘s clearly unavailable, so she‘s not going to fall within the confines of the argument I‘m about to present to you.” The trial court rejected counsel‘s request for the right to confrontation.

¶102 Then, just before Detective Kilpack testified, Drommond‘s counsel renewed his argument for the right to confront witnesses: ―Just for the record, next witness you‘re going to have is a variety of statements, not all of them are going to be hearsay. But you‘ll know it when you [h]ear it. So, I would like to renew my objection with respect to confrontation.” Drommond now urges us that this statement was somehow an objection to the Kilpack–Shakespeare Hearsay Testimony. He says that this renewal “rectified” the earlier “waiver.”

¶103 We disagree. Drommond didn‘t raise a timely and specific objection to the Kilpack–Shakespeare Hearsay Testimony. And the trial court never had the chance to rule on the admissibility of the testimony because counsel excluded testimony about Shakespeare‘s statements from the original objection. By simply renewing that original objection before Detective Kilpack testified, Drommond didn‘t object to the Kilpack–Shakespeare Hearsay Testimony. Because Drommond failed to object to the Kilpack–Shakespeare Hearsay Testimony, his challenge to that testimony on appeal is unpreserved.[12] The Kilpack–Shakespeare Hearsay Testimony was, on that basis, properly before the jury.

  1. Any Error Was Harmless Beyond a Reasonable Doubt

¶104 We are left only with deciding whether the admission of the Kilpack–Hansen Hearsay Testimony and the Kilpack– Buchanan Hearsay Testimony was harmless beyond a reasonable doubt.

¶105 When an error amounts to a violation of a defendant‘s constitutional right to confrontation, “reversal is required unless the error is harmless beyond a reasonable doubt.” State v. Villarreal, 889 P.2d 419, 425 (Utah 1995) (citation omitted). This harmless-beyond-a-reasonable-doubt analysis requires us to determine “the probable impact of the [testimony] on the minds of the average juror.” Id. (citation omitted). We can evaluate several factors in deciding whether an error was harmless beyond a reasonable doubt, such as “the importance of the witness‘ [s] testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence collaborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case.” Id. at 425–26 (citation omitted).

¶106 Two main pieces of evidence emerged from the Kilpack– Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay Testimony. The first was that Drommond had asked Hansen to break into Reed‘s house and scare her out of getting married and to drive by the houses of Reed and her fiancé to record license plate numbers. The second was that Drommond had expressed his desire to kill other members of Reed‘s family and that he had no remorse about killing Reed.

¶107 Applying the harmless-beyond-a-reasonable-doubt standard to each piece of evidence, we find that it wouldn‘t likely impact the mind of the average juror because (1) the prosecution‘s case was strong and (2) other testimony corroborated this evidence.

¶108 First, ―the overall strength of the prosecution‘s case,” id. at 426 (citation omitted), supports our holding that Kilpack‘s testimony about the Hansen and Buchanan interviews was harmless beyond a reasonable doubt. The State presented potent evidence upon which the jury could have relied to sentence Drommond to life in prison without the possibility of parole. Specifically, the jury heard evidence that Drommond tucked a gun in his waistband before meeting his ex-wife, who was dropping their children off for visitation. It heard that—while his children were nearby—he shot her in the body from close range. Jurors also heard that he then walked closer to Reed and shot her in the head. It heard evidence that he then shot his former father-in-law and that he continued to fight those at the murder scene for possession of the gun. The jury also heard testimony that Drommond sent Reed threatening emails shortly before the murder.

¶109 Second, the Kilpack–Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay Testimony were corroborated by other evidence properly before the jury.

¶110 The Kilpack–Hansen Hearsay Testimony was corroborated by Carlson‘s testimony and by Kilpack‘s testimony about text messages he saw. For starters, Carlson testified that Drommond wanted to scare Reed out of dating or marrying other men. Carlson also testified that Drommond, two or three weeks before the murder, talked with him and Hansen about ―breaking into [Reed‘s] house,” and ―like cutting the phone line kind of thing, and like scaring her, you know with fear, if you date him then bad things will happen to you.” Carlson further explained that Drommond had Hansen drive by Reed‘s house ―and kind of check it out” and said that he and Drommond had even gone to Reed‘s house to do so. On top of hearing Carlson‘s testimony, the jury heard Kilpack testify that he saw text messages from Drommond that corroborated the Kilpack–Hansen Hearsay Testimony. One of the texts reminded Hansen that he had been ―given $400 by Mr. Drommond for this particular situation and driving by the house.” And so the Kilpack–Hansen Hearsay Testimony was corroborated by other evidence.

¶111 The Kilpack–Buchanan Hearsay Testimony—which went toward Drommond‘s lack of remorse and his desire to kill members of Reed‘s family—was likewise corroborated by other evidence. First, Kilpack testified that Shakespeare told him that Drommond told her after the murder that ―he felt great because [Reed] was gone” and that ―if he had the power to do so, he would kill the entire Bradley family.” We held above that this testimony was properly before the jury because Drommond didn‘t object to it. Supra ¶ 103. It is thus proper for us to consider it in the harmless-beyond-a-reasonable-doubt analysis. Second, Carlson also testified that Drommond expressed no remorse for the murder and that it ―almost kind of seemed like a joke that he was [in jail].” Thus the jury heard other evidence that Drommond wanted to have members of Reed‘s family killed and that he didn‘t regret murdering Reed.

¶112 Overall, the Kilpack–Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay Testimony were just two small pieces of the State‘s case. The substance of the interviews was corroborated by other evidence before the jury and the overall strength of the prosecution‘s case was strong. Any constitutional error in admitting the evidence would not affect the mind of the average juror and was therefore harmless beyond a reasonable doubt.

III. VICTIM-IMPACT EVIDENCE

¶113 Drommond next maintains that certain victim-impact evidence violated his right to due process under the Utah Constitution.[13] This claim fails because most of the evidence that Drommond complains about is not victim-impact evidence. And the evidence that is victim-impact evidence wasn‘t prejudicial.

¶114 Utah Code section 76-3-207(2)(a)(iii) allows, during capital sentencing proceedings, the presentation of evidence about ―the victim and the impact of the crime on the victim‘s family and community without comparison to other persons or victims.” Victim-impact evidence is evidence that ―speaks to the victim‘s character, effects of the crime on the surviving family, or any opinions of the surviving members about the crime.” See State v. Lafferty, 2001 UT 19, ¶ 83, 20 P.3d 342. Evidence is not victim-impact evidence when it merely ―portrays . . . what took place at the crime scene.” See id.

¶115 Drommond characterizes evidence about the following as victim-impact evidence: the 1995 strangling, the 2005 strangling and the resulting protective order, Drommond‘s threatening emails to Reed, the ―bounty hunter service,” Drommond‘s requests that his friends break into Reed‘s house and scare her out of dating and getting remarried, the murder and the struggle to disarm and subdue Drommond, Drommond‘s lack of remorse, Drommond‘s postmurder statements that he wanted Reed‘s sister to be hurt or killed, Drommond‘s statements that he wanted to kill the entire Bradley family, Reed‘s autopsy, and the testimony of Reed‘s sister that Reed‘s children ―miss their mother very much” and that ―they don‘t understand what‘s happened.”[14]

¶116 The only evidence here that is victim-impact evidence is the testimony about Reed‘s children missing their mother. That evidence speaks to the ―effects of the crime on the surviving family.” Id. The rest of the evidence is not victim-impact evidence, however, because it does not go toward ―the victim‘s character, effects of the crime on the surviving family, or any opinions of the surviving members about the crime.” Id. It just describes the events before the crime, what took place at the crime scene, and Drommond‘s lack of remorse after the crime.

¶117 Because the other evidence is not victim-impact evidence, we need only determine whether the testimony about Reed‘s children missing their mother violated Drommond‘s right to due process under the Utah Constitution. Because Drommond has not shown that he was prejudiced by the victim-impact evidence, his claim fails.

¶118 We have never ―addressed what limitations, if any, the state constitution places on the use of victim-impact evidence during the penalty phase of a capital trial.”[15] State v. Maestas, 2012 UT 46, ¶ 307, 299 P.3d 892. That is because, ―[b]efore treating the constitutional issue on its merits, we determine whether the victim impact evidence . . . was prejudicial.” State v. Kell, 2002 UT 106, ¶ 52, 61 P.3d 1019 (footnote omitted). And if a ―potential error is not prejudicial,” we need not decide the constitutional limits on victim-impact evidence. Id. Following that logic in Kell and Maestas, we found a lack of prejudice and declined to reach the constitutional question. Id. ¶¶ 53–54; Maestas, 2012 UT 46, ¶ 317. Likewise, we do so today: Drommond has not shown that he was prejudiced by the testimony about the children missing their mother and so we do not address any constitutional limits on victim-impact evidence.

¶119 A defendant is prejudiced by an error if there is not ―a mere possibility, but a reasonable likelihood that the error affected the result.” Maestas, 2012 UT 46, ¶ 308 (citation omitted). When deciding ―whether a defendant was prejudiced by the admission of victim-impact evidence, we consider the totality of the evidence before the jury.” Id. (citation omitted) (internal quotation marks omitted). Prejudice is a high bar to meet; even ―detailed descriptions” of victims‘ grief may be admissible. Id. Victim-impact evidence may be prejudicial, however, “if it is pervasive, if it contains an opinion of the defendant‘s character or the appropriate sentence, if it exceeds a description of the ‘family‘s loss and mourning,‘ or if it fails to be ‘moderate in tone.‘” Id. (footnotes omitted) (citations omitted).

¶120 Drommond wasn‘t prejudiced by the testimony about the children missing their mother. In its entirety, the statement was this: “They of course miss their mother very much. And they don‘t understand what‘s happened. But they are good kids and I love them.” As in Maestas, this statement was “moderate in tone,” “not pervasive,” and “did not express an opinion about [Drommond‘s] character or the appropriate sentence.” Id. ¶ 313. Indeed, this victim-impact evidence was minimal. See State v. Arguelles, 2003 UT 1, ¶ 123, 63 P.3d 731 (holding that any error in admitting victim-impact evidence was harmless because it was “minimal”). And although even “vivid images of . . . grief . . . are not necessarily prejudicial,” Maestas, 2012 UT 46, ¶ 316, this short, benign testimony was in not even vivid. It was just a quick description of the family‘s loss and mourning.

¶121 We thus hold that the admitted victim-impact evidence testimony didn‘t prejudice Drommond, and we decline to define the constitutional limits on victim-impact evidence.

IV. FAILURE TO GIVE A JURY INSTRUCTION UNDER LAFFERTY

¶122 Drommond next protests the admission of evidence of his previous “uncharged crimes,” arguing that it violated his rights under the United States Constitution—the right to due process and the right to be free from cruel and unusual punishment. He maintains that the jury should have received an instruction prohibiting it from considering those crimes unless the jury found that the crimes had been proven beyond a reasonable doubt.[16] The State contends that such an instruction is not necessary because the evidence merely gave context to the crime for which Drommond had pleaded guilty, and wasn‘t evidence of unrelated, uncharged crimes. We agree with the State and hold that the trial court didn‘t abuse its discretion in refusing to give the jury instruction that Drommond advocates for.

¶123 Drommond objects specifically to evidence (1) that he asked Carlson to get him a gun so they could start a ―bounty hunter service” and intimidate people who owed Drommond money; (2) that he, two or three weeks before the murder, wanted Carlson and Hansen to break into Reed‘s house and scare her out of dating another man; (3) that he, on the day before the homicide, asked Hansen to break into Reed‘s house and scare her into not getting married to her fiancé; and (4) that he told his cellmate, Buchanan, that he wanted Reed‘s sister to be severely hurt or killed ―so that she could not take care of his children.”

¶124 Utah‘s capital sentencing statute allows the admission of aggravating or mitigating evidence that enables the court or jury body to appropriately sentence a defendant. See UTAH CODE § 76-3-207(2)(a). That evidence includes ―the nature and circumstances of the crime,” the defendant‘s ―character, background, history, and mental and physical condition,” ―the victim and the impact of the crime on the victim‘s family,” and ―any other facts in aggravation or mitigation of the penalty that the court considers relevant to the sentence.” Id. This wide-ranging information allows the court or jury to sentence the defendant based on the defendant‘s history, character, ―violent propensities and future dangerousness.” State v. Lafferty, 749 P.2d 1239, 1259 (Utah 1988), adhered to on reconsideration, 776 P.2d 631 (Utah 1989), and overruled on other grounds by Met v. State, 2016 UT 51, ¶¶ 89–90, 388 P.3d 447.

¶125 Drommond correctly asserts that, before the jury can consider other criminal activity as an aggravating factor, the jury must first be ―convinced beyond a reasonable doubt that the accused did commit the other crime.” Id. at 1260. So ―when the prosecution introduces evidence of aggravating factors in the form” of another crime that hasn‘t resulted in a conviction, ―the sentencing jury must be instructed (i) as to the elements of the other crime regarding which the evidence was adduced and (ii) that it is not to consider evidence of that crime as an aggravating factor unless it first finds that the prosecution has proven all the elements of the crime beyond a reasonable doubt.” Id.

¶126 The issue here, however, is whether the evidence that Drommond protests was used as evidence of other criminal activity and as an aggravating factor. We find that it wasn‘t. A beyond-a-reasonable-doubt instruction was thus unnecessary.

¶127 The facts of Lafferty illustrate that point. In Lafferty, the defendant was convicted of two counts of first-degree murder. Id. at 1241. During the penalty-phase trial, the State introduced evidence that the defendant ―had assaulted several people in jail while he awaited his trial.” Id. at 1258. On appeal, we held that the jury could not rely on the assaults as an aggravating factor for sentencing unless it was convinced that the defendant committed them. Id. at 1260.

¶128 Lafferty thus applies when the State uses evidence of other, unrelated criminal activity as ―important information about the accused‘s violent propensities and future dangerousness” or as ―evidence of a defendant‘s past criminal behavior so that the jury [can] have an accurate picture of the defendant‘s background, history, and character.”[17] State v. Maestas, 2012 UT 46, ¶ 287, 299 P.3d 892. No case has held, however, that Lafferty applies any time the jury hears evidence of conduct that could constitute other criminal activity. Context matters. “[E]vidence may be relevant in several different contexts.” State v. Carter, 888 P.2d 629, 654 (Utah 1995), superseded on other grounds by UTAH CODE § 76-3-207(2)(a)(iii) (1999). Evidence may, for example, be relevant to whether one committed a crime unrelated to the one for which the person is being sentenced (and thus relevant to future dangerousness or propensity for criminal activity), but it may also be relevant as evidence showing the nature and circumstances of the crime for which the person is being sentenced. We hold that Lafferty applies to the former use but not to the latter. In other words, Lafferty‘s beyond-a-reasonable-doubt standard does not apply when the State uses evidence merely to show the nature and circumstances of the crime for which the defendant is being sentenced—even if that evidence might be criminal activity in and of itself.

¶129 We must now determine whether Lafferty‘s beyond-a-reasonable-doubt standard applies here. The State, at Drommond‘s penalty-phase trial, didn‘t argue that the above evidence was evidence of crimes distinct from the aggravated murder for which he was being sentenced. Neither did it argue that the above evidence supported a sentence of life without the possibility of parole. Rather, the State presented the evidence as part of the circumstances of the murder. The evidence showed what Drommond did before the murder and informed the jury about Drommond‘s lack of remorse afterward. It showed how he got the murder weapon and his fixation on Reed dating another man in the weeks preceding the murder. The evidence wasn‘t used to claim that Drommond had a history of criminal activity or that he had committed similar crimes and so had a propensity for violence; the evidence was entwined with the crime for which Drommond had pleaded guilty and merely informed the jury about ―the nature and circumstances of the crime.” See UTAH CODE § 76-3-207(2). The evidence thus wasn‘t ―other . . . criminal activity” used ―as an aggravating factor,” Lafferty, 749 P.2d at 1260, in favor of a sentence of life without parole. So, Lafferty doesn‘t apply to the evidence, and the trial court didn‘t err by refusing to give the Lafferty beyond-a-reasonable-doubt instruction.[18]

¶130 In sum, the State didn‘t seek to prove that Drommond committed other crimes and to use those crimes as an aggravating factor. So the trial court didn‘t abuse its discretion by refusing to give a beyond-a-reasonable-doubt jury instruction under Lafferty.

V. CUMULATIVE ERROR DOCTRINE

¶131 Drommond last maintains that he deserves a new penalty-phase trial under the cumulative error doctrine. But he has inadequately briefed this argument and has thus failed to carry his burden of persuasion on appeal.

¶132 Our opinion in Bank of America v. Adamson, straightened out our briefing requirements. 2017 UT 2, ¶ 11, 391 P.3d 196. We held there that we do not have ―a bright-line rule determining when a brief is inadequate.”[19] Id. ¶ 12. As a result, we now focus our analysis on whether Drommond has made a ―sufficient argument for ruling in [his] favor” rather than ―on whether there is a technical deficiency in [briefing] meriting a default.” Id. (alteration in original). Under this analysis, a ―party must cite the legal authority on which its argument is based and then provide reasoned analysis of how that authority should apply in the particular case, including citations to the record when appropriate.” Id. ¶ 13; UTAH R. APP. P. 24(a)(8) (―The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”).

¶133 Drommond‘s argument is inadequately briefed because it does not meet rule 24(a)(8)‘s standard. Drommond could win his appeal under the cumulative error doctrine ―only if the cumulative effect of the several errors undermines our confidence . . . that a fair trial was had.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038 (alteration in original) (citation omitted). Yet Drommond didn‘t provide ―reasoned analysis” in his briefs about whether the alleged errors had a cumulative effect and, if so, why the cumulative effect of the alleged errors should undermine our confidence that his penalty-phase trial was fair. In other words, he didn‘t analyze the facts through the lens of the cited law.

¶134 Drommond‘s argument, rather than containing ―reasoned analysis” about the cumulative error doctrine, is conclusory. See Conocophillips Co. v. Utah Dept of Transp., 2017 UT App 68, ¶ 29, 397 P.3d 772 (rejecting an argument for cumulative error as inadequately briefed because it was ―confined to a single conclusory sentence” in the party‘s opening brief). Indeed, the argument in his opening brief just lists the alleged errors and concludes that the ―cumulative effect of these errors precluded Defendant from obtaining a fair trial and due process in violation of his federal and state constitutional rights.” And the argument in his reply brief is no more detailed. It claims simply that ―the cumulative effect of [the] errors magnifies the unfairness of the capital sentencing trial and requires reversal.” This is not the type of ―reasoned analysis” that our opinion in Bank of America contemplates.

¶135 Because Drommond has inadequately briefed his argument under the doctrine of cumulative error, he has failed to carry his burden of persuasion on appeal. Bank of Am., 2017 UT 2, ¶ 12. (―[A]n appellant who fails to adequately brief an issue ‘will almost certainly fail to carry its burden of persuasion on appeal.’” (citation omitted)).

CONCLUSION

¶136 Drommond is not entitled to a new penalty-phase trial. His sentence—life in prison without the possibility of parole— stands. We affirm.

Utah Family Law, LC | divorceutah.com | 801-466-9277.

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[1] According to Dr. Gummow, bipolar disorder NOS is the diagnosis that a physician gives a patient when the physician does not know what type of bipolar disorder the patient has.

[2] Dr. Gummow explained that there are ―several different types of bipolar disorders” but that ―bipolar disorder one means you‘ve had a clear manic episode and you have an episode of depression, multiple.

[3] Detective Kilpack also testified that Drommond‘s father told him that, a few weeks before the murder, Drommond “told his mother that he was going to hurt [Reed]” and “told [his mother] not to be a hero.” According to Kilpack, Drommond told his mother “that if he wasn‘t able to do it, he had an army that would accomplish it for him.”

[4] The parties do not point to clear definitions of these personality disorders in their briefs and so we do not define them here.

[5] Dr. Golding‘s diagnosis was characterized at trial as personality disorder not otherwise specified with cluster B traits.

[6] Effexor is a brand name for the antidepressant drug, venlafaxine. For consistency and ease of reference, we refer to the drug in this opinion as Effexor instead of venlafaxine.

[7] Drommond argues that this is a capital case. This is relevant, he says, to all of his claims because (1) counsel is held to a higher standard in capital cases for ineffective-assistance-of-counsel claims, (2) the right to confrontation applies to capital sentencing proceedings, (3) victim-impact evidence should be excluded from capital sentencing proceedings, and (4) uncharged crimes can be considered in capital sentencing proceedings only if they are proven beyond a reasonable doubt. He also argues that it allows us to review any palpable error, even if it wasn‘t objected to below. We need not distinguish between capital and noncapital cases in deciding any of the issues here because, even assuming it is a capital case, Drommond‘s claims fail.

[8] Drommond also argues that the hearsay testimony violated two other provisions of the Utah Constitution: article I, section 7 (the due process provision) and article I, section 9, which says in part that ―[p]ersons arrested or imprisoned shall not be treated with unnecessary rigor.” The argument based on these constitutional provisions, however, is inadequately briefed because Drommond does not provide any analysis about why those provisions specifically supply the right to confront witnesses at sentencing. See Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196 (―A party must cite the legal authority on which its argument is based and then provide reasoned analysis of how that authority should apply in the particular case . . . .”). Drommond has thus not met his burden of persuading us that he is entitled to relief under these provisions. See id. ¶¶ 12–13.

Drommond next contends that, even if there is no constitutional right to confrontation, the trial court erred by not properly evaluating whether the hearsay evidence was admissible under rule 403 of the Utah Rules of Evidence. But the Utah Rules of Evidence don‘t govern whether evidence is admissible in sentencing proceedings. UTAH R. EVID. 1101(c)(3). And whether evidence is admissible at a capital sentencing proceeding is governed by Utah Code section 76-3-207 and constitutional law. See, e.g., State v. Maestas, 2012 UT 46, ¶ 297, 299 P.3d 892 (holding that due process requires that ―evidence presented in the penalty phase . . . be relevant and reliable”). Thus, the trial court didn‘t err when it didn‘t evaluate the admissibility of the evidence under rule 403.

[9] The U.S. Supreme Court has held that defendants have no right to confront witnesses at sentencing proceedings—even at capital sentencing proceedings—under the Due Process Clause of the Fourteenth Amendment. Williams v. New York, 337 U.S. 241, 245 (1949) (affirming a sentencing procedure that allowed the sentencing judge to consider information about the defendant ―even though [it was] obtained outside the courtroom from persons whom a defendant has not been permitted to confront or cross-examine”). The Court in Williams based its holding in part on its belief that a sentencing judge must have ―the fullest information possible” about ―the defendant‘s life and characteristics.” Id. at 247. And the Court recognized ―that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination.” Id. at 250. In the end, however, Williams doesn‘t control the outcome of Drommond‘s Confrontation Clause challenge because it ―is a due process, rather than Sixth Amendment, case.” United States v. Fields, 483 F.3d 313, 327 (5th Cir. 2007). Indeed, the Confrontation Clause wasn‘t incorporated against the States by the Fourteenth Amendment‘s Due Process Clause until well after the Williams decision. See Pointer v. Texas, 380 U.S. 400 (1965).

[10] See United States v. Zerpa-Ruiz, 784 F. App‘x 353, 356 (6th Cir. 2019); United States v. Umaña, 750 F.3d 320, 348 (4th Cir. 2014); Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1076 (11th Cir. 2013); United States v. Ghiassi, 729 F.3d 690, 695–96 (7th Cir. 2013); Fields, 483 F.3d at 327; United States v. Bras, 483 F.3d 103, 109 (D.C. Cir. 2007); United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007); United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006); United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006); United States v. Brown, 430 F.3d 942, 943–44 (8th Cir. 2005); United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005).

[11] The U.S. Supreme Court overruled the Roberts ―indicia of reliability” test in Crawford v. Washington and instead held that an unavailable witness‘s hearsay statement can be admitted at trial only if it was previously “test[ed] in the crucible of cross-examination.” 541 U.S. 36, 61 (2004).

[12] Drommond has not argued for an exception to our preservation rule.

[13] 13 Drommond also claims the victim-impact evidence violated his right to due process under the United States Constitution. The Due Process Clause of the Fourteenth Amendment bars victim-impact evidence that ―is so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825 (1991). Because the victim-impact evidence wasn‘t prejudicial, infra ¶¶ 117–21, it didn‘t violate the U.S. Constitution.

[14] Drommond also complains that the jury saw a photograph of Reed and her two children. When the State moved to admit the photograph at trial, Drommond‘s trial counsel said that he had no objection. And because Drommond‘s trial counsel didn‘t object, Drommond has lost the chance to argue on appeal that its admission was erroneous. State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (citation omitted) (holding that, to preserve an issue for appeal, a party must raise a ―timely and specific objection” (emphasis omitted)).

[15] This court has previously indicated, without deciding, that Utah Code section 76-3-207(2)(a)(iii) may violate the Utah Constitution. State v. Ott, 2010 UT 1, ¶ 24 n.3, 247 P.3d 344. The State asks us to ―reconsider Ott because it incorrectly extended death-penalty victim-impact precedent to a non-death sentencing.” We need not decide either of these issues today because the victim-impact evidence didn‘t prejudice Drommond.

[16] Drommond also argues that the evidence of the “uncharged crimes” violated his state constitutional rights—his rights under article I, sections 7, 9, and 12. But Drommond has failed to carry his burden of persuasion on appeal for these arguments because they were inadequately briefed. See Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196. Drommond cites these constitutional

provisions and a few cases but does not provide sufficient ―development of that authority” or sufficient ―reasoned analysis based on that authority.” Angilau v. Winder, 2011 UT 13, ¶ 27, 248 P.3d 975 (citation omitted); see also Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 46, 70 P.3d 904 (declaring an appellant‘s brief inadequate when it ―merely cite[d] a few cases” and ―provide[d] very little analysis”).

[17] See also Maestas, 2012 UT 46, ¶¶ 1, 278–79 (applying Lafferty in a death-penalty case in which the defendant had been convicted of committing aggravated murder during an aggravated burglary and the State had introduced evidence that the defendant had committed previous aggravated burglaries that were not related to the crime for which the defendant was sentenced); Arguelles, 2003 UT 1, ¶¶ 1, 22, 111 (applying Lafferty in an aggravated murder case because the State presented evidence of the defendant‘s past crimes); State v. Taylor, 818 P.2d 1030, 1031–35 (Utah 1991) (applying Lafferty in a first-degree murder case in which the defendant had raped and killed a young girl and the State presented evidence that the defendant, as a juvenile, (1) had sexual intercourse with his younger sister against her will, (2) burglarized a home, and (3) sexually abused a six-year-old neighbor girl and evidence that the defendant, as an adult, (1) was convicted of burglary and carrying a concealed weapon and (2) molested young girls at a public swimming pool); State v. Parsons, 781 P.2d 1275, 1276, 1279, 1283 (Utah 1989) (applying Lafferty in a death-penalty case in which the defendant had been convicted of first-degree murder after stabbing his victim to death and the State introduced as evidence of aggravating circumstances that the defendant murdered the victim “as a person on parole who knowingly possessed or had a firearm under his control or custody” in violation of a Utah criminal statute).

[18] The State also argues that Lafferty does not apply because Lafferty was a death-penalty case, and Drommond‘s is not. We need not decide whether Lafferty applies to non-death-sentence-eligible cases because, even assuming it does, it does not apply to the evidence challenged here.

[19] We realize that the briefs for this appeal were filed in 2010 and so the parties didn‘t have the benefit of our opinion in Bank of America. But at that time, we routinely declined to address issues that were inadequately briefed. See, e.g., State v. Timmerman, 2009 UT 58, ¶ 25 n.5, 218 P.3d 590 (―An issue is inadequately briefed if the argument merely contains bald citations to authority [without] development of that authority and reasoned analysis based on that authority.” (alteration in original) (citation omitted) (internal quotation marks omitted)).

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State v. Norton – 2020 UT 46 – Utah Supreme Court

https://www.utcourts.gov/opinions/supopin/State%20v.%20Norton20200713_20180514_46.pdf
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.

Opinion of the Court

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.

BACKGROUND[1]

¶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 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 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 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 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 “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 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.

¶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]

Opinion of the Court

¶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

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.

¶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.

¶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 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 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 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.

¶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 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 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 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 § 76-1­402(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 76-9­702.1(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 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 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 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 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 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 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. Martinez-Castellanos, 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 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, 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. § 77-8a-1(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 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, 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 § 77-18-1(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 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 a surprising step. She goes on to address the question of whether the rule established in LeBeau[16]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.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[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.

[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).

[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 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 § 76-2­103(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 his conduct,” and when the person is “aware that his conduct is reasonably certain to cause the result.” See id. § 76-2-103(2).

[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).

[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).

[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).

[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. § 76-5­402(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).

[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.

[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.

[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.

[15] Without published opinions, it is more difficult to determine how district courts have responded to its requirements.

[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”).

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Who initiates divorce more often? Husbands or wives?

Who initiates divorce more often? Husbands or wives?

In the United State of America, although the percentages vary depending on the study, the research is unanimous in finding that wives initiate divorce more often than husbands. Between 65% and 70% more, generally. This study published in 2017 set the percentage of wife-initiated divorces at 69%.

You’ll see a lot of articles that claim women file 80% of divorces, but I could not find any studies or statistics to back that claim.

As to why wives file for divorce more often than men, this MSN article (the accuracy for which I cannot vouch) summarized this study from American Psychological Association (ASA) as follows:

  1. Women are more likely to feel like marriage is holding them back.
  2. Women tend to do more emotional labor in a marriage.
  3. Women are less likely to tolerate “bad behavior” today.

I can tell you from experience as a divorce lawyer that one reason husbands are reluctant to file for divorce is because they are afraid of being labeled pariahs; culturally, it’s easier to sympathize with a woman seeking a divorce because there is this belief that a woman seeking a divorce is a victim seeking escape or relief, while men who seek divorce are often presumed to be self-absorbed cads.

According to this article in PMC*

  • when men are not employed, both husbands or wives are more likely to leave the marriage.
  • when wives report better than average marital satisfaction, their employment affects neither their nor their husbands’ exits.
  • when wives report below average marital satisfaction, their employment makes it more likely that they will leave.

*PubMed Central (PMC) is a free archive of biomedical and life sciences journal literature at the U.S. National Institutes of Health’s National Library of Medicine (NIH/NLM). It is a repository for journal literature deposited by participating publishers, as well as for author manuscripts that have been submitted in compliance with the NIH Public Access Policy and similar policies of other research funding agencies.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Who-are-the-biggest-initiates-of-divorce-Why-is-that/answer/Eric-Johnson-311

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2020 UT App 21 – UTAH COURT OF APPEALS – common law marriage

2020 UT App 21 – THE UTAH COURT OF APPEALS

JULIE RIVET, Appellant,
v.
LOUIS HOPPIE, Appellee.

Opinion
No. 20181018-CA
Filed February 13, 2020

First District Court, Logan Department
The Honorable Brian G. Cannell
No. 164100697

Marlin J. Grant, Attorney for Appellant Paul H. Gosnell, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 During a years-long relationship, and after four marriage proposals, Julie Rivet and Louis Hoppie never formally married. Toward the end of the relationship, Rivet petitioned the district court to recognize a common-law marriage between her and Hoppie. After three hearings, the district court ruled that Rivet “failed to establish a common-law marriage under Utah Code Ann. Section 30-1-4.5.” Specifically, the district court concluded that although Rivet met four of the elements required to establish the existence of a common-law marriage, she did not satisfy the final elements requiring the parties to hold themselves out as a married couple and to acquire a uniform and general reputation as husband and wife. We affirm.

BACKGROUND

¶2        Rivet and Hoppie began their relationship in 2009. In September 2015, the parties “ceased cohabitating” but did not officially terminate the relationship until sometime in 2017. In December 2016, Rivet petitioned the district court to recognize the relationship as a common-law marriage.

¶3        During the first evidentiary hearing, Rivet moved to admit two contested exhibits: (1) an affidavit from Rivet’s former attorney concerning statements made by Hoppie in their discussion on how to resolve the petition (Exhibit 2) and (2) a collection of written statements by members of the parties’ community expressing their opinions regarding the parties’ relationship status (Exhibit 10). Hoppie challenged the exhibits as hearsay. Rivet conceded the statements contained in the exhibits were hearsay, but suggested that the hearing was informal and that the statements could be considered. The court asked Rivet’s counsel if there was “something . . . that says I can rely on [the] documents,” explaining that if there was support for their admission, the court would allow it. Rivet did not engage with the court on the question or provide a theory under which the exhibits could be admitted. The court excluded the exhibits as hearsay. Later, during the same hearing, Rivet referenced Exhibit 2 to refresh the recollection of a witness, prompting an objection from Hoppie. The court interjected, “I haven’t received [Exhibit 2] as evidence. . . . [I]t refreshed [the witness’s] recollection.” Rivet then stated she sought to introduce Exhibit 2 only for that purpose, after which the court reiterated, “I’m not going to receive [Exhibit 2] at this stage.” Rivet simply responded, “Okay.” The court further indicated that Rivet’s former attorney could be called to testify at a later hearing. But Rivet never called her former attorney to testify.

¶4        Rivet also sought to introduce Exhibit 10, comprising the responses of several individuals to the query: “In your opinion did Julie Rivet and Lou Hoppie appear to be living together the same as a married couple? And, represent themselves in public and social gatherings as such?” The court responded, “It’s technically hearsay. . . . So I’m not going to receive it . . . . We’ll reserve the issue and allow for those witnesses to be brought before the Court.” Rivet offered no response.

¶5        For the duration of the hearing, the parties presented conflicting evidence concerning the nature of the relationship, including testimony from their friends. At the conclusion of the hearing, Rivet asked whether she needed to call the individuals represented in Exhibit 10 as witnesses. The court responded, “It’s your burden. I’m not going to tell you how to present it to me. . . . You’re going to have to put on your case and live with it.”

¶6        During the second evidentiary hearing, Rivet called only one of the seventeen individuals identified in Exhibit 10 to testify. Additional testimony was offered by Hoppie’s son, Hoppie’s insurance agent, and the parties themselves.

¶7        Also during the second hearing, Rivet twice tried to reference a portion of Exhibit 2. Both times, the court told Rivet it would not admit the exhibit, and the court later explained that its decision to exclude Exhibit 2 was based on rule 408 of the Utah Rules of Evidence, which bars, in some circumstances, the admission of evidence connected with compromise offers and negotiations. Throughout the hearing, the parties presented additional evidence, including tax documents showing Hoppie’s filing status as single during a period of the relationship, bank statements showing the parties maintained separate financial accounts, and insurance documents identifying Hoppie as single and Rivet as married.

¶8        During the third hearing, the court heard additional argument from Rivet and Hoppie and acknowledged receiving a trust document executed by Hoppie referencing Rivet as “beneficiary.” The court then ruled and concluded that Rivet did not prove the elements of a common-law marriage by a preponderance of the evidence. The court later issued a memorandum decision finding that Rivet and Hoppie “cohabitated with one another, and assumed marital rights, duties, and obligations thus establishing the elements of Utah Code Ann. Section 30-1-4.5(1)(a)–(d).” But the court also found that the parties merely “held themselves out as being in a committed relationship . . . . [T]hey did not hold themselves out as husband and wife, nor did they acquire a uniform or general reputation as husband and wife as required by Utah Code Ann. Section 30-1-4.5(1)(e).” Accordingly, the court denied Rivet’s requested relief and dismissed her petition. Rivet appeals.

ISSUE AND STANDARD OF REVIEW

¶9        On appeal, Rivet contends that the district court’s “findings were insufficient to support [Hoppie’s] position” that there was no common-law marriage.[1] In substance, Rivet does not contest the adequacy of the court’s findings, but the sufficiency of the evidence supporting some of its findings. Additionally, Rivet’s framing of the issue flips the script. It was Rivet, as the petitioner, who bore the burden of proving the elements of a common-law marriage. See Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App. 1998) (stating that a claimant “must prove each of six different elements to establish” a common-law marriage). “We do not reverse a [district] court’s findings of fact unless they are clearly erroneous.” Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171 (cleaned up). Furthermore, when a party fails to challenge factual findings “we assume that the record supports the findings . . . and proceed to a review of the accuracy of the lower court’s conclusions of law and the application of that law in the case.” Heber City Corp. v. Simpson, 942 P.2d 307, 312 (Utah 1997) (cleaned up); see also Hansen, 958 P.2d at 936–37.

ANALYSIS

¶10 Rivet contends that certain of the court’s findings are clearly erroneous because of how the court weighed the evidence. Although Rivet enumerates several findings as clearly erroneous, she substantively challenges only a few of those. See Hahn v. Hahn, 2018 UT App 135, ¶ 20, 427 P.3d 1195 (declining to address inadequately briefed issues under rule 24(a)(8) of the Utah Rules of Appellate Procedure). Consequently, Rivet fails to adequately challenge pertinent findings that independently support the district court’s conclusion that Rivet failed to establish the final elements of a common-law marriage: that the parties “hold themselves out as and have acquired a uniform and general reputation as husband and wife.” Utah Code Ann. § 30-1-4.5(1)(e) (LexisNexis 2019).[2]

¶11 This court has indicated that a partial or divided reputation of marriage is insufficient to meet the requirements of section 30-1-4.5(1)(e). See Hansen v. Hansen, 958 P.2d 931, 936 (Utah Ct. App. 1998). A partial or divided reputation of marriage may be shown when “the parties’ closest friends [do] not consider the [parties] married” and the parties are “not consistent in holding themselves out as married to the rest of the world.” Id. Such circumstances “negate[] the establishment . . . of the statutory requirement that the couple acquire[] a uniform and general reputation as husband and wife.” Id. (cleaned up).

¶12 The district court made unchallenged findings that negated the establishment of section 30-1-4.5(1)(e). In particular, the court found the following:

  1. During the course of the relationship the parties held themselves out as being in a committed relationship, however, they did not hold themselves out as husband and wife, nor did they acquire a uniform or general reputation as husband and wife . . . .

. . . .

  1. . . . [Rivet’s witness] also stated . . . that neither party wore wedding rings . . . and that the parties never referred to each other as “husband” or “wife” but instead referred to each other by the first names. . . . [The witness] while testifying . . . claimed that they held themselves out as husband and wife. However, when pressed for examples of the parties holding themselves out as a married couple he could provide none, and admitted that his belief they were married was based merely on an assumption.
  2. [Hoppie’s] witnesses each testified that they knew the parties were not married . . . [and n]ever observed either party refer to themselves as “husband,” “wife,” or “spouse.”
  3. [Another witness] testified that [Hoppie] never requested changing his status to married . . . or listing [Rivet] as a spouse. . . . [H]e did not believe [Hoppie] had a reputation of being a married individual. . . . [H]e did not believe the parties were married because of discussions they had with him in his office, and . . . [Hoppie] was always opposed to bringing [Rivet] onto other legal documents or referring to her as a spouse.

¶13 The unchallenged findings indicate at least some of the parties’ friends and family did not consider them to be married and the parties did not consistently represent themselves to be husband and wife. Those facts negate the establishment of the statutory requirements under Hansen. Accordingly, the unchallenged findings adequately support the district court’s conclusion that Rivet “failed to establish a common-law marriage under Utah Code Ann. Section 30-1-4.5.” Therefore, the district court accurately applied the law in denying Rivet’s petition.

CONCLUSION

¶14 The district court correctly concluded that Rivet failed to establish a common-law marriage in light of its findings indicating that the parties did not hold themselves out as, and did not acquire a uniform and general reputation as, husband and wife. We therefore affirm the district court’s dismissal of the petition.[3]

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] Rivet also contends that the court erred by not admitting Exhibits 2 and 10 into evidence, arguing that they were admissible under four separate rules of evidence. We decline to address the argument because Rivet did not preserve these issues. While Rivet offered Exhibits 2 and 10, she provided no justification for their admission, much less the four legal theories she presents for the first time on appeal. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise and argue an issue in the [district] court, it has failed to preserve the issue . . . .”). We also decline to review Rivet’s appeal of the district court’s exclusion of Exhibit 2 because Rivet does not challenge the court’s alternative basis for its decision under rule 408 of the Utah Rules of Evidence. And when an appellant “fails to challenge the [district] court’s alternative basis for its decision,” the reviewing court generally may not consider the issue sua sponte. Deseret First Fed. Credit Union v. Parkin, 2014 UT App 267, ¶ 13, 339 P.3d 471 (citing Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903).

[2] The statutory provision in effect at the relevant time does not differ in any material way from the current provision. We therefore cite the current version of the Utah Code for the reader’s convenience.

[3] Hoppie seeks attorney fees incurred on appeal under rule 33 of the Utah Rules of Appellate Procedure, arguing that Rivet’s appeal is frivolous “[g]iven the findings in Hansen v. Hansen, . . . and the clear record supporting the trial court’s findings.” Rule 33 permits an award of damages, including attorney fees, for appeals “not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.” Utah R. App. P. 33(b). “The sanction for bringing a frivolous appeal is applied only in egregious cases, lest there be an improper chilling of the right to appeal erroneous lower court decisions.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 36, 440 P.3d 757 (cleaned up). While Rivet’s arguments are ultimately unpersuasive, they were not so egregious as to warrant an imposition of rule 33 sanctions. We therefore decline to award Hoppie attorney fees.

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Why do courts seem to rule against husbands so unfavorably regarding custody and alimony?

Sometimes a husband/father is legitimately ruled against in a child custody case because he is unfit to exercise custody. Sometimes that unfitness may be his own fault (he’s abusive and/or neglectful), other times the unfitness may be due to circumstances beyond his control (disabled or has a job and/or job schedule that is incompatible with exercising custody).

But where there is no parental unfitness, why do so many fathers lose on the issue of custody? Simple:

Sexism.

The idea (in some courts) that women are presumptively better parents than are men. The idea (in other courts) that no matter how well a man can prove himself to be a fit parent the conventional wisdom accepts the woman as an even better parent. The idea (in still other courts) that a mother’s contributions to a child’s upbringing are more important than a father’s.

Sometimes it’s institutionalized sexism. The “it’s been this way for so long, so it’s going to stay this way” way of thinking.

It is often subconscious sexism.

It is often sexism that is not malicious but born out of a sincerely held—though erroneous—belief (much like some people who are racist because they believe other races are inferior and not because of any kind of hatred for other races).

But it’s sexism just the same. Plain and simple.

Fortunately, sexist custody awards are quietly and relatively quickly (given how slowly the wheels of justice generally turn) becoming a thing of the past.

It’s getting harder and harder to rule against fit men on the issue of custody. Getting harder to justify the silly “reasons” that have been given for denying men sole or joint custody. Getting harder to write off men as generally uncaring, uninterested, and incapable as parents. Getting harder to justify the silly “reasons” that have been given for denying men sole or joint custody. Sadly (but more factually accurately), it’s getting harder to justify presuming all women generally to be “natural born” parental wonders.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Why-do-the-court-systems-seem-to-rule-against-husbands-so-unfavorably-in-regards-to-parental-rights-and-spousal-support/answer/Eric-Johnson-311

Have we reached the point where mothers are not immediately deemed the best candidates for child custody?

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Should I be cleaning up after my husband?

Is it a common thing in a marriage for me to be cleaning up after my husband as if he is just another one of our children?

Many men who, if their mothers were homemakers, understandably believe that one of a wife’s duties is housekeeping and cleaning up after her family members.

Fewer women are homemakers now, but men my age often had mothers who did the housekeeping, housecleaning, and laundry, and so it’s not absurd for such a man to believe “that’s just what wives do,” just as it’s not uncommon for many women who, after they marry, believe that the husband earning all the money is “just what husbands do.”

If the family you and your husband have formed is different, because you may both work or because you are the primary earner and your husband spends more time in the home, then you have various options (some clearly better than others):

  1. suck it up and wait on your husband hand and foot, as he is accustomed and as he believes he is entitled;
  2. complain incessantly about how unfair your husband is treating you by being a slob in the hope he will change;
  3. discuss with your husband the fact that you did not marry him to become his domestic servant and that because of the dynamics of the family, you will both have to share in the housekeeping;
  4. divorce him, if his slobbery outweighs his other merits as a husband;
  5. hire a housekeeper.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Is-it-a-common-thing-in-a-marriage-for-me-to-be-cleaning-up-after-my-husband-as-if-he-is-just-another-one-of-our-children/answer/Eric-Johnson-311

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Will the court take seriously my desire to include in the divorce decree a provision that at no time should step-parents or a parent’s significant other be inappropriately dressed?

Question: Will the court take seriously my desire to include in the divorce decree a provision that at no time should step-parents or a parent’s significant other be inappropriately dressed?

Question Detail: My wife and I are separated now for 2 years. She served me papers because she said she never loved me and wanted a divorce. The paperwork has been all filed on my end but she still hasn’t completed her end of the paperwork. Well she has had a relationship now with a guy for 8 months. He is around my children almost every time. She has them (joint custody). She has posted pictures of him on a hike and swimming shirtless holding them with my girls on Facebook. They are ages 6 and 3. I find this to be inappropriate. Am I wrong? I have asked her not to let this continue because he doesn’t need to be skin to skin with my girls. I realize its outdoor pictures and it may appear harmless but to most people but these are my girls. I don’t even walk around or take pics like that with them. I want it to stop but she says there is nothing wrong with it. I need to know if I’m over reacting or if I make a valid case.

This is a common kind of question. This may answer your question, if you reside in Utah:

Utah Code § 76-9-702.5.  Lewdness involving a child. 

(1)        A person is guilty of lewdness involving a child if the person under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, sexual abuse of a child, aggravated sexual abuse of a child, or an attempt to commit any of those offenses, intentionally or knowingly does any of the following to, or in the presence of, a child who is under 14 years of age:

(a)        performs an act of sexual intercourse or sodomy;

(b)        exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area:

(i)         in a public place; or

(ii)        in a private place:

(A)       under circumstances the person should know will likely cause affront or alarm; or

(B)       with the intent to arouse or gratify the sexual desire of the actor or the child;

(c)        masturbates;

(d)       under circumstances not amounting to sexual exploitation of a child under Section 76-5b-201, causes a child under the age of 14 years to expose his or her genitals, anus, or breast, if female, to the actor, with the intent to arouse or gratify the sexual desire of the actor or the child; or

(e)        performs any other act of lewdness.

(2)(a)   Lewdness involving a child is a class A misdemeanor, except under Subsection (2)(b).

(b)        Lewdness involving a child is a third degree felony if at the time of the violation:

(i)         the person is a sex offender as defined in Section 77-27-21.7; or

(ii)        the person has previously been convicted of a violation of this section.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Here are some more statutory provisions that may be of interest:

Utah Code § 76-9-702.  Lewdness.

(1)        A person is guilty of lewdness if the person under circumstances not amounting to rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, or an attempt to commit any of these offenses, performs any of the following acts in a public place or under circumstances which the person should know will likely cause affront or alarm to, on, or in the presence of another who is 14 years of age or older:

(a)        an act of sexual intercourse or sodomy;

(b)        exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area;

(c)        masturbates; or

(d)       any other act of lewdness.

(2)

(a)        A person convicted the first or second time of a violation of Subsection (1) is guilty of a class B misdemeanor, except under Subsection (2)(b).

(b)        A person convicted of a violation of Subsection (1) is guilty of a third degree felony if at the time of the violation:

(i)         the person is a sex offender as defined in Section 77-27-21.7;

(ii)        the person has been previously convicted two or more times of violating Subsection (1); or

(iii)       the person has previously been convicted of a violation of Subsection (1) and has also previously been convicted of a violation of Section 76-9-702.5.

(c)

(i)         For purposes of this Subsection (2) and Subsection 77-41-102(17), a plea of guilty or nolo contendere to a charge under this section that is held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction.

(ii)        This Subsection (2)(c) also applies if the charge under this Subsection (2) has been subsequently reduced or dismissed in accordance with the plea in abeyance agreement.

(3)        A woman’s breast feeding, including breast feeding in any location where the woman otherwise may rightfully be, does not under any circumstance constitute a lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.

Utah Code § 76-10-1227.  Indecent public displays — Definitions.

(1)        For purposes of this section and Section 76-10-1228:

(a)        “Description or depiction of illicit sex or sexual immorality” means:

(i)         human genitals in a state of sexual stimulation or arousal;

(ii)        acts of human masturbation, sexual intercourse, or sodomy;

(iii)       fondling or other erotic touching of human genitals or pubic region; or

(iv)       fondling or other erotic touching of the human buttock or female breast.

(b)        “Nude or partially denuded figure” means:

(i)         less than completely and opaquely covering human:

(A)       genitals;

(B)       pubic regions;

(C)       buttock; and

(D)       female breast below a point immediately above the top of the areola; and

(ii)        human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(2)

(a)        Subject to Subsection (2)(c), this section and Section 76-10-1228 do not apply to any material which, when taken as a whole, has serious value for minors.

(b)        As used in Subsection (2)(a), “serious value” means having serious literary, artistic, political, or scientific value for minors, taking into consideration the ages of all minors who could be exposed to the material.

(c)        A description or depiction of illicit sex or sexual immorality as defined in Subsection (1)(a)(i), (ii), or (iii) has no serious value for minors.

Utah Code § 76-10-1228.  Indecent public displays — Prohibitions — Penalty.

(1)        Subject to the affirmative defense in Subsection 76-10-1208(3), a person is guilty of a class A misdemeanor who willfully or knowingly:

(a)        engages in the business of selling, lending, giving away, showing, advertising for sale, or distributing to a minor or has in the person’s possession with intent to engage in that business or to otherwise offer for sale or commercial distribution to a minor any material with:

(i)         a description or depiction of illicit sex or sexual immorality; or

(ii)        a nude or partially denuded figure; or

(b)        publicly displays at newsstands or any other establishment frequented by minors, or where the minors are or may be invited as a part of the general public, any motion picture, or any live, taped, or recorded performance, or any still picture or photograph, or any book, pocket book, pamphlet, or magazine the cover or content of which:

(i)         exploits, is devoted to, or is principally made up of one or more descriptions or depictions of illicit sex or sexual immorality; or

(ii)        consists of one or more pictures of nude or partially denuded figures.

(2)

(a)        A violation of this section is punishable by:

(i)         a minimum mandatory fine of not less than $500; and

(ii)        incarceration, without suspension of sentence in any way, for a term of not less than 30 days.

(b)        This section supersedes Section 77-18-1.

Utah Code § 76-10-1208.  Affirmative defenses.

(1)        It is an affirmative defense to prosecution under this part that the distribution of pornographic material is restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.

(2)        It is not a defense to prosecution under this part that the actor is a motion picture projectionist, usher, ticket-taker, bookstore employee, or otherwise is required to violate this part incident to the person’s employment.

(3)        It is an affirmative defense to prosecution under Section 76-10-1206, 76-10-1227, or 76-10-1228 for displaying or exhibiting an outer portion of material, that the material is:

(a)        in a sealed opaque wrapper that covers at least the lower 2/3 of the material so that the lower 2/3 of the material is concealed from view;

(b)        placed behind a blinder rack; or

(c)        displayed in an area from which a minor is physically excluded if the material cannot be viewed by the minor from an area in which a minor is allowed.

Utah Code § 32B-1-504.  General requirements on attire and conduct.

The following attire and conduct on premises or at an event regulated by the commission under this title are considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited:

(1)        employing or using a person in the sale, offer for sale, or furnishing of an alcoholic product while the person is in:

(a)        a state of nudity;

(b)        a state of seminudity; or

(c)        performance attire or clothing that exposes to view any portion of:

(i)         the female breast below the top of the areola; or

(ii)        the cleft of the buttocks;

(2)        employing or using the services of a person to mingle with patrons while the person is in:

(a)        a state of nudity;

(b)        a state of seminudity; or

(c)        performance attire or clothing that exposes to view any portion of:

(i)         the female breast below the top of the areola; or

(ii)        the cleft of the buttocks;

(3)        encouraging or permitting a person to:

(a)        engage in or simulate an act of:

(i)         sexual intercourse;

(ii)        masturbation;

(iii)       sodomy;

(iv)       bestiality;

(v)        oral copulation;

(vi)       flagellation; or

(vii)      a sexual act that is prohibited by Utah law; or

(b)        touch, caress, or fondle the breast, buttocks, anus, or genitals of any other person;

(4)        permitting a person to wear or use a device or covering that:

(a)        is exposed to view; and

(b)        simulates all or any portion of the human genitals, anus, pubic area, or female breast;

(5)        permitting a person to use an artificial device or inanimate object to depict an act prohibited by this section;

(6)        permitting a person to remain on premises or at an event who exposes to public view any portion of that person’s:

(a)        genitals, pubic area, or anus; or

(b)        in the case of a female, the areola and nipple of the breast; or

(7)        showing a film, still picture, electronic reproduction, or other visual reproduction depicting:

(a)        an act or simulated act of:

(i)         sexual intercourse;

(ii)        masturbation;

(iii)       sodomy;

(iv)       bestiality;

(v)        oral copulation;

(vi)       flagellation; or

(vii)      a sexual act that is prohibited by Utah law;

(b)        a person being touched, caressed, or fondled on the breast, buttocks, anus, or genitals;

(c)        a scene wherein an artificial device or inanimate object is employed to depict, or a drawing is employed to portray, an act prohibited by this section; or

(d)       a scene wherein a person displays the genitals or anus.

Utah Code § 76-5b-203.  Distribution of an intimate image — Penalty.

(1)        As used in this section:

(a)        “Distribute” means selling, exhibiting, displaying, wholesaling, retailing, providing, giving, granting admission to, providing access to, or otherwise transferring or presenting an image to another individual, with or without consideration.

(b)        “Intimate image” means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts:

(i)         exposed human male or female genitals or pubic area, with less than an opaque covering;

(ii)        a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or

(iii)       the individual engaged in any sexually explicit conduct.

(c)        “Sexually explicit conduct” means actual or simulated:

(i)         sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii)        masturbation;

(iii)       bestiality;

(iv)       sadistic or masochistic activities;

(v)        exhibition of the genitals, pubic region, buttocks, or female breast of any individual;

(vi)       visual depiction of nudity or partial nudity;

(vii)      fondling or touching of the genitals, pubic region, buttocks, or female breast; or

(viii)     explicit representation of the defecation or urination functions.

(d)       “Simulated sexually explicit conduct” means a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.

(2)        An actor commits the offense of distribution of intimate images if the actor, with the intent to cause emotional distress or harm, knowingly or intentionally distributes to any third party any intimate image of an individual who is 18 years of age or older, if:

(a)        the actor knows that the depicted individual has not given consent to the actor to distribute the intimate image;

(b)        the intimate image was created by or provided to the actor under circumstances in which the individual has a reasonable expectation of privacy; and

(c)        actual emotional distress or harm is caused to the person as a result of the distribution under this section.

(3)        This section does not apply to:

(a)

(i)         lawful practices of law enforcement agencies;

(ii)        prosecutorial agency functions;

(iii)       the reporting of a criminal offense;

(iv)       court proceedings or any other judicial proceeding; or

(v)        lawful and generally accepted medical practices and procedures;

(b)        an intimate image if the individual portrayed in the image voluntarily allows public exposure of the image; or

(c)        an intimate image that is portrayed in a lawful commercial setting.

(4)

(a)        This section does not apply to an Internet service provider or interactive computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service, information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined in 47 U.S.C. Sec. 522, if:

(i)         the distribution of an intimate image by the Internet service provider occurs only incidentally through the provider’s function of:

(A)       transmitting or routing data from one person to another person; or

(B)       providing a connection between one person and another person;

(ii)        the provider does not intentionally aid or abet in the distribution of the intimate image; and

(iii)       the provider does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute the intimate image.

(b)        This section does not apply to a hosting company, as defined in Section 76-10-1230, if:

(i)         the distribution of an intimate image by the hosting company occurs only incidentally through the hosting company’s function of providing data storage space or data caching to a person;

(ii)        the hosting company does not intentionally engage, aid, or abet in the distribution of the intimate image; and

(iii)       the hosting company does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the intimate image.

(c)        A service provider, as defined in Section 76-10-1230, is not negligent under this section if it complies with Section 76-10-1231.

(5)

(a)        Distribution of an intimate image is a class A misdemeanor except under Subsection (5)(b).

(b)        Distribution of an intimate image is a third degree felony on a second or subsequent conviction for an offense under this section that arises from a separate criminal episode as defined in Section 76-1-401.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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