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State v. Norton

Court of Appeals of Utah

May 3, 2018

State of Utah, Appellee,
v.
Lonnie Norton, Appellant.

          Third District Court, West Jordan Department The Honorable Bruce C. Lubeck No. 131400015

          Lori J. Seppi, Attorney for Appellant

          Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen and Diana Hagen concurred.

          OPINION

          POHLMAN, JUDGE

         ¶1 Lonnie Norton appeals his convictions arising from events that occurred over one night in November 2012 when he broke into his parents-in-law's house, kidnapped his estranged wife (Wife), and sexually assaulted her. Norton alleges several errors related to the jury instructions and sentencing. We affirm.

         BACKGROUND

         ¶2 In October 2012, Wife left Norton, her husband of over twenty years, taking their children with her. After staying in a women's shelter for several days and after a protective order against Norton went into effect, Wife and the children moved into her parents' then-vacant house. The protective order permitted Norton to have supervised visits with the children and to communicate with Wife via email regarding "parent time, counseling, and school attendance."

         ¶3 On the date when the events leading to Norton's convictions occurred, Norton had overnight supervised parent time with the children in the marital home. Wife claimed that, on that night, Norton left the children and broke into her parents' house, after which he, among other things, kidnapped and raped her at gunpoint. The State charged Norton with aggravated kidnapping, a first degree felony; three counts of aggravated sexual assault, all first degree felonies; aggravated burglary, a first degree felony; aggravated assault, a third degree felony; violation of a protective order, a class A misdemeanor; and damage to or interruption of a communication device, a class B misdemeanor.

         ¶4 The case proceeded to a jury trial. Norton and Wife each testified about the events of that night and agreed on the following basic facts. It was snowing. After the children went to sleep, Norton retrieved Wife from her parents' house and drove the two to Fort Douglas on the University of Utah campus. Norton, who worked for the University, accessed a vacant office building with a key he had by virtue of his employment. Once inside the building, the parties had sexual intercourse in an office, after which Wife rinsed off in a bathroom across the hall. Norton then drove Wife first to the marital home to check on the children and then back to her parents' house. Aside from these facts, the parties' accounts differed significantly.

         Wife's Account

         ¶5 Wife testified that, on the night in question, she awoke in the middle of the night to "a loud bang" downstairs in her parents' house, which she "figured . . . was [from] the dryer" that she had previously moved in front of a door to block entry from the basement's outside entrance. Wife grabbed her phone and dialed 911 when Norton appeared "at the end of [her] bed." He punched her face with a closed fist, grabbed the phone, and duct-taped her head. She passed out, and when she regained consciousness, she was riding in Norton's car with him. She claimed that Norton "had a gun in his lap" and pointed it at her as she tried to open the car door. She realized that they were driving "up to the Fort Douglas area" near Norton's office at the University of Utah. After arriving at a building in the Fort Douglas area, Norton parked the car and told Wife that they were going to enter the building and that she "needed to be quiet or he would shoot [her]." Because she did not have any shoes on, Norton gave her a pair of his shoes and then led Wife toward the building and unlocked the entrance door.

         ¶6 Wife testified that Norton initially took her to a bathroom, where he "ripped the duct tape off [her] head" and began talking to her about their marriage, going to counseling, and getting back together. Wife rejected Norton's suggestions, and after talking for approximately twenty minutes, Norton told Wife "to take [her] shirt off." When she initially refused, he "pointed the gun at [her]" and again ordered her to take off her shirt. She complied. He then "squeezed [her] breasts" and led her to an office across the hall. Once there, he told her to "take off [her] pants." Again, she refused, and again he "pointed the gun at [her], " and she complied.

         ¶7 While Wife was undressing, Norton also undressed. Norton then "popped the magazine out of the gun" and put the gun pieces in a drawer. He "told [her] that [they] were going [to] have sex." She again told him, "no, " which Norton dismissed, and Wife asked if he was "going to rape [her]." Norton replied, "You can't rape somebody that you're married to, " and he laid down on the floor and pulled Wife on top of him. He then vaginally raped her. Wife testified that she made no effort to participate. She testified that at one point she grabbed his penis "really hard, " but that because she has rheumatoid arthritis, she did not "know how hard" the squeeze was. Norton responded by grabbing "both of [her] hands and . . . put[ting] them over [her] head in one of his hands."

         ¶8 Wife testified that afterward Norton took her back to the bathroom and ordered her "to get in the bathtub and rinse [herself] off." She stated that her "hands were shaking really bad" and that Norton told her that she was not "doing a good enough job, " at which point he "shoved his fingers up in [her vagina] and tried to rinse himself out." Wife dried herself off with some paper towels, and they both got dressed.

         ¶9 Norton, having retrieved the gun, then told Wife to sit down on a chair. While he initially suggested the two reconcile, the conversation took a turn when he told her that "he was going [to] kill himself, " and he put the gun to his head. He then pointed the gun at Wife and said, "[M]aybe I'll kill you and then I'll kill myself." Norton "went back and forth" about shooting himself and Wife for a few minutes, after which Wife "got really mad" and "[t]old him to go ahead and shoot himself." At that point, "it just ended, " and Norton "took [Wife] back out into the car." Norton then drove them to their marital home and, after insisting that Wife "couldn't tell anybody" what had happened and that she needed to "make up some sort of story" to tell the children about how she hurt herself, he drove her back to her parents' house. Once there, Norton attempted to fix both a locked gate and the basement door through which he had entered earlier. He again told her not to tell anybody what had happened, and she told him she would not tell. After Norton left, Wife called the police, and an officer took her to the hospital.

         Norton's Account

         ¶10 Norton testified at trial that Wife willingly accompanied him to the Fort Douglas office building and that she initiated the sexual conduct that occurred. He claimed that Wife had "told [him] to come over" to her parents' house after their children had gone to sleep and that, after missing her call at approximately two o'clock in the morning, he drove to the house and parked in front. Though it was snowing, Norton testified that, "[a]fter a couple of minutes, " Wife came outside "in stocking feet" and got into the car with him. He gave her some Reeboks to wear. He claimed that as they drove, Wife suggested going to his office to talk. Norton thought that rather than his office, "it might not be a bad idea to . . . go up to one of the buildings that's part of [his] college up in the Fort Douglas area." Accordingly, he parked behind a building there and unlocked the entrance to a unit that used to be an officer's quarters and was recently vacated by its tenant.

         ¶11 Norton testified that, once inside, the parties went into an office, sat down, and began talking about marriage counseling and possible reconciliation. Norton claimed that as they were reminiscing about when they first married, Wife went over "and sat on [his] lap and put her arms around [him]" and they began kissing. He testified that they eventually moved to the floor, undressed, and that Wife "climbed on top of [him]" and had sex with him.

         ¶12 Norton testified that afterward they went into the bathroom and that Wife got in the bathtub. Norton said that normally they would shower, but that because the water in the building was cold, he told Wife that he was not going to shower. Instead, he suggested to Wife that she "just rinse off, " and he turned on the knob for her. He claimed that after Wife rinsed and dried herself off with paper towels he provided, they then went back into the office and dressed.

         ¶13 Norton testified that, at this point, the parties resumed their conversation about reconciliation. He stated that Wife indicated that she "didn't really want to reconcile, " which prompted him to say that he thought it would be fair for him to have joint custody of their children. Wife responded that she did not want joint custody, and she became angry-calling him names-when he said his attorney told him that he would be able to get joint custody. At one point during the exchange, Wife slapped Norton, and he claimed that he backhanded her "pretty hard" in response. He testified that Wife then tried to hit him again, and so he "grabbed her hands and [they] rastled for a minute, " which caused Wife to start crying. Norton stated that Wife then went into the bathroom, shut the door, and refused to come out for about ten minutes.

         ¶14 When Wife came out, Norton and Wife left the building and got back into the car. Norton testified that Wife asked to check on their children at the marital home, which they did. Norton then drove Wife to her parents' house. When they arrived, they discovered the front door was locked. Norton testified that he then went around to the back door, and along the way opened a locked gate by pushing it "real hard." He then went and "pushed" the laundry room back door open and walked through the house to let Wife in around front.

         ¶15 Norton testified that, once inside, he again tried to talk to Wife about joint custody, which angered Wife. Wife then threatened to call the police and accuse him of breaking into the house and beating her up. Norton "got scared" and left.

         The Jury Instructions

         ¶16 The State charged Norton with eight offenses of varying severity related to the events described above, specifically one count each of aggravated burglary, aggravated kidnapping, aggravated assault, violation of a protective order, and damage to or interruption of a communication device. The State also charged him with three counts of aggravated sexual assault, and the court specified which episode of abuse each count referred to in its instructions, referring to them as Count 2, Count 3, and Count 4. Count 2 concerned the "allegation of the touching of [Wife's] breast"; Count 3 concerned "the allegation of sexual intercourse"; and Count 4 concerned "the penetration of [Wife's] vagina by [Norton's] fingers."

          ¶17 Defense counsel requested lesser included offense instructions for the aggravated burglary charge, the aggravated kidnapping charge, and all counts of the aggravated sexual assault charges. The court permitted only one lesser included offense instruction for each count. For aggravated burglary, the court instructed on the lesser included offense of burglary, but it declined to instruct on both aggravated assault and assault. For the aggravated kidnapping charge, the court instructed on the lesser included offense of kidnapping, but it declined to instruct on unlawful detention. And for the aggravated sexual assault charges, the court permitted lesser included offense instructions related to each particular act. For Counts 2 and 4, it permitted the lesser included offense instruction of forcible sexual abuse. For Count 3, it instructed on rape. It declined counsel's request to instruct on sexual battery for those counts.

         The Verdict

         ¶18 The jury convicted Norton of two of the three charged counts of aggravated sexual assault-the counts pertaining to sexual intercourse and Norton inserting his fingers into Wife's vagina-and acquitted him of the aggravated sexual assault charge related to touching Wife's breasts. In addition, the jury convicted Norton of the lesser offense of kidnapping, the lesser offense of burglary, violation of a protective order, and a class B misdemeanor assault. The jury acquitted Norton of the damage to or interruption of a communication device count.

         Sentencing: The Three Tiers

         ¶19 The court instructed the jury that "[a] person commits aggravated sexual assault" if

in the course of a rape or attempted rape or forcible sexual abuse, or attempted forcible sexual abuse, a person uses, or threatens the victim with the use of a dangerous weapon or compels, or attempts to compel, the victim to submit by threat of kidnaping, death, or serious bodily injury to be inflicted imminently.

         (Quotation simplified.) Thus, the jury was instructed that it could convict Norton of aggravated sexual assault based upon the underlying acts of a rape, an attempted rape, forcible sexual abuse, or an attempted forcible sexual abuse. However, at trial, no special verdict form was requested or given. As a result, although the jury convicted Norton of two aggravated sexual assault charges, it did not specify on which underlying offenses it relied to convict Norton of those charges.

         ¶20 During sentencing, defense counsel requested that the trial court sentence Norton under the lowest tier of the aggravated sexual assault sentencing scheme-the six-years-to-life tier.[1] Counsel explained to the court that because there was not a special verdict form, it was inappropriate to sentence Norton according to the highest tier-the fifteen-years-to-life tier. Counsel asserted that the jury instruction "allow[ed] for the jury to find the defendant guilty . . . for the offense based on an attempted forcible sexual abuse, " and contended that "there's no indication or evidence that the jury made a finding other than that." He also contended that, because there was no special verdict form, it would violate Norton's right to a jury trial to find at sentencing that he committed a completed act under the highest tier where the jury could find from the evidence that Norton committed attempted forcible sexual abuse. In response, the State argued that Norton should be sentenced under the highest tier because "there was never any evidence that this was an attempted forcible sex abuse or an attempted rape. It was all evidence that it was an actual rape and actual forcible sex abuse."

         ¶21 Although the court determined that defense counsel's argument had some merit, the court ultimately agreed with the State, taking a "common sense approach" and determining that although the instructions included the offenses of attempted rape and attempted forcible sexual abuse, "[t]he evidence presented is that there was an actual act of sexual intercourse" and "an actual . . . insertion [in her vagina] by his hand." Accordingly, the court ruled that it was proper to sentence him at the highest tier because the "evidence as presented" related to actual, not attempted, conduct and "there was never an argument made that this was an attempted rape or attempted forcible sexual abuse."

         Sentencing: The Interests of Justice Analysis

         ¶22 Once the court determined that it was proper to sentence Norton at the highest tier for the aggravated sexual assault convictions, defense counsel then requested that the court impose terms of six-years-to-life on those counts and to run the sentences concurrently.[2] In requesting the lesser sentence, defense counsel identified several facts which, in his opinion, merited a lesser sentence. Norton also made a statement, expressing his regret at having violated the protective order and for having hurt Wife and his family and stating a desire to move forward personally and professionally to "rebuild [his] life." In response, the State requested that the court impose the presumptive sentences of fifteen years to life on both of the aggravated sexual assault counts and that the sentences run consecutively. The State contended that a lesser sentence on those counts made "no sense, " particularly where Norton had not accepted responsibility for what he had done and the crimes were "terrible." The court also had the benefit of the Presentence Investigation Report (the PSI) prepared by Adult Probation & Parole, which recommended imprisonment according to the statutory terms and indicated that "there are not enough mitigating circumstances to override the serious nature of the current offense."

         ¶23 The court sentenced Norton to the presumptive fifteen years to life on each of the aggravated sexual assault counts. It recognized that Norton had "a good past in many, many ways" but that "one of the real difficulties" in the case was Norton's "inability and unwillingness to follow the truth, " stating that the court and the jury did not believe the events happened "at all the way [Norton said] they happened." The court also stated that Norton's conduct "went[] way, way, way over the line" and was of a kind "that simply cannot be accepted in our society, " and that while it recognized a fifteen years to life sentence would be lengthy, especially given Norton's age, the extreme and harmful nature of Norton's conduct merited the presumptive sentence. Nonetheless, the court stated that Norton was "entitled to some mercy" in that it did not believe that the sentences ought to be consecutive. Accordingly, on the aggravated sexual assault counts, the court sentenced him to two terms of fifteen years to life, with the sentences to run concurrently.

         ¶24 Norton timely appealed from the court's judgment, sentence, and commitment.

         ISSUES AND STANDARDS OF REVIEW

         ¶25 Norton first argues that the court erred by giving instructions of aggravated sexual assault and its lesser included offenses that did not properly inform the jury of the mens rea that applies to the nonconsent element. "Generally, whether a jury instruction correctly states the law presents a question of law which we review for correctness, " and we "will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case." State v. Moore, 2015 UT App 112, ¶ 4, 349 P.3d 797 (quotation simplified).

         ¶26 Norton next argues that the court erred by refusing to give requested lesser included offense instructions on the aggravated sexual assault, aggravated kidnapping, and aggravated burglary counts. "A trial court's refusal to grant a lesser included offense instruction is a question of law, which we review for correctness." State v. Reece, 2015 UT 45, ¶ 16, 349 P.3d 712 (quotation simplified).

         ¶27 Finally, Norton asserts two claims of error concerning his sentence. First, he argues that the court violated his right to due process and his right to trial by jury when it sentenced him under the highest sentencing tier on the aggravated sexual assault counts for which he was convicted. "[C]onstitutional questions present questions of law that we review for correctness without deference to the lower court's ruling." State v. Candedo, 2010 UT 32, ¶ 7, 232 P.3d 1008. Second, Norton argues that the court abused its discretion when it imposed two terms of fifteen years to life on the two aggravated sexual assault convictions "without conducting the statutorily mandated interests-of-justice analysis." We review a trial court's sentencing decision for an abuse of discretion. See LeBeau v. State, 2014 UT 39, ¶ 16, 337 P.3d 254 ("An appellate court will . . . only set aside a sentence if the sentence represents an abuse of discretion, if the district court fails to consider all legally relevant factors, or if the sentence imposed is clearly excessive." (quotation simplified)).

         ANALYSIS

         I. Jury Instructions

         ¶28 Norton first argues that the instructions on the aggravated sexual assault charges and the associated lesser included offenses of rape and forcible sexual abuse misstated the law. Norton asserts that under State v. Barela, 2015 UT 22, 349 P.3d 676, the instructions "failed to instruct the jury that it could not convict unless it found that Norton acted with the requisite mens rea as to [Wife's] nonconsent" and that, had the ...


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