author: HARRIS, Judge:

text:
    DEGAO XU, Appellant and Cross-appellee, v. HONGGUANG ZHAO, Appellee and Cross-appellant.
    No. 20160453-CA
    Court of Appeals of Utah.
    Filed October 4, 2018
    Steve S. Christensen, Salt Lake City and Clinton R. Brimhall, Attorneys for Appellant and Cross-appellee.
    Brandon C. Bowen, Attorney for Appellee and Cross-appellant.
    Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
    Opinion
   HARRIS, Judge:

¶1 Degao Xu and Hongguang Zhao divorced in 2015, after twenty-three years of marriage. After a bench trial and post-trial motions, the trial court ultimately ordered Xu to pay $534 per month in alimony. Both parties are dissatisfied with that ruling, and both appeal. We affirm.

BACKGROUND

¶2 The parties were married in China in 1992, but later moved to Utah. During their marriage, Xu obtained a Ph.D. in physics and worked for various employers using that degree. During the last few years before the parties' separation, Zhao was working as a translator and as a Chinese-language customer service representative, and for a few months worked a second job as a hotel manager. Prior to their separation, the parties resided in a home with a monthly mortgage payment of over $1,800. In 2009, the parties began living separately, and in 2012 Xu filed for divorce.

¶3 After the petition for divorce was filed, Xu submitted financial declarations and supporting documentation, informing Zhao and the court that he earned $6,080 per month, and that he had monthly expenses of $5,987.31, including the $1,800 monthly mortgage payment. For her part, Zhao also completed a financial declaration, but claimed she had no income whatsoever and that her family members helped cover her monthly expenses, which she estimated amounted to $3,383.57, including a $650 housing expense. Zhao provided some documentation for a few of her expenses, but failed to provide any documentation for her claim that she had no income.

¶4 After reviewing Zhao's financial declaration, Xu made discovery requests asking Zhao to produce bank statements and tax returns. Zhao refused to comply with these requests, and Xu asked the trial court to order Zhao to produce the documents, which request the trial court granted. When Zhao failed to comply with the court's order, the court imposed a "discovery sanction" to the effect that Zhao would "not [be] permitted to introduce evidence in opposition to [Xu's] evidence of her income." In accordance with this sanction, the court ultimately barred Zhao from introducing evidence of her income at trial.

¶5 The case eventually proceeded to a bench trial, which was held in 2015. At trial, Xu revealed for the first time that he had recently been fired from his job, and attempted to introduce a new financial declaration indicating that he had no income other than unemployment benefits. However, during closing argument, when the court asked Xu's attorney how it should "deal with [Xu's] income," Xu's attorney responded by stating that the court should impute income to Xu based on his employment history, asserting that $60,000 to $79,000 would be a reasonable range, and asking the court to "place [Xu's] income at $60,000 per year." Xu also presented evidence of Zhao's income, which, per the discovery sanction, Zhao was not permitted to rebut. Xu presented evidence that, prior to their separation, Zhao had earned $2,150 per month at her primary job and $1,500 per month at a part-time, secondary job. At the conclusion of the trial, the court took the matter under advisement.

¶6 A few weeks later, the court issued findings of fact and conclusions of law. Although Xu had maintained he was unemployed, the court found that Xu had an "extended history of working at jobs ranging in annual pay from $60,000 to $89,000," and "[b]ased on such history" the court imputed income to Xu in the amount of $76,000 per year, or $6,333 per month. The court further determined that Xu's claimed expenses were overstated, in part because the court refused to grant Xu the $1,800 housing allowance on the ground that the parties could not afford to live at the premarital standard of living and because the court ordered that the marital home should be sold. Ultimately, the court determined that Xu's monthly expenses were $3,865.89, and that Xu's imputed income exceeds his expenses by over $2,400 each month.

¶7 The court imputed Zhao's income for her primary job at $2,150 per month, but declined to consider her income from her secondary job, reasoning that her "need should not be based on working a second job any more than [Xu's] ability to pay should be." In assessing Zhao's expenses, the court determined that Zhao's $650 housing expense was acceptable because "there is not enough money for both parties to continue to live at [the marital] standard of living." Ultimately, the court determined that Zhao's monthly expenses were $3,033.57, and that Zhao therefore had a monthly unmet need of $883.57 per month. In the end, the court ordered Xu to pay monthly alimony to Zhao, and the court set that amount at $1,600 per month for four years, and then $1,200 per month for another thirteen years.

¶8 After the trial court issued these findings, Xu filed a motion asking the court to amend its findings of fact and the resulting alimony calculation. In his motion, Xu first pointed out-citing Bingham v. Bingham , 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (stating that a "spouse's demonstrated need must ... constitute the maximum permissible alimony award")-that the ceiling for any alimony award was Zhao's unmet need, which the court had already determined was $883.57, and that any alimony award higher than that was improper. Xu also challenged some of the court's specific determinations regarding the parties' income and expenses. Specifically, Xu argued that Zhao had not done enough to prove her $650 monthly housing expense, which Xu asserted should be "removed" from her list of expenses. Next, Xu argued that the court should have considered Zhao's second job when determining her income. Finally, Xu argued that the court should not have imputed him income based on his work history, because the court had not made a finding that Xu was voluntarily underemployed and had not made any findings that the job market would allow Xu to actually make $76,000 per year.

¶9 In response, Zhao argued that the trial court's alimony determination was adequately supported by its factual findings, and posited that the court would have been within its discretion to determine that her expenses were in fact much higher than it had previously found. For example, Zhao noted that her current standard of living was well below the standard of living she enjoyed during the marriage, and that the court had nonetheless determined that her monthly housing expenses were $650 (the amount she claimed to be paying at the time of the trial) and not $1,800 (the amount the parties had paid on their mortgage on the marital home). Zhao also suggested that the parties' respective standard of living could be "equalized" simply "by allocating them the exact same amount in current expenses," and argued that her monthly expenses should be raised from $3,033.57 to $3,865.80 to match Xu's. Xu filed a reply memorandum responding to these arguments.

¶10 At oral argument on the motion, the court addressed its decision to impute income to Xu at $76,000, and noted that it had made that imputation after it reviewed Xu's work history and found that, while Xu did "have periods where he [was unemployed]," Xu was "always, in the past, able to get back" to full employment relatively quickly. The court also considered whether it should impute income to Zhao on the basis of her secondary job. Here, Xu argued that Zhao should be imputed income based on both of the jobs she held prior to separation because her lack of disclosure crippled the court's ability to "really know how much she was receiving, how much she was spending, [and] what the source of those funds were." Xu acknowledged that while "it's hard to look back [several] years and say that it's relevant today," the evidence of Zhao's income at the time of the separation was "all the [c]ourt had" due to her discovery noncompliance. The court apparently agreed with that argument, noting that it had decided that, "as a sanction," Zhao would not be allowed to contradict evidence Xu produced regarding her income and that this sanction may well justify a decision to impute Zhao income from her second job. Finally, the court allowed both parties to present argument related to whether it correctly imputed their expenses in its initial findings.

¶11 After the hearing, the court issued amended findings of fact and conclusions of law. In these amended findings, the court refused to alter its previous decision to impute to Xu an annual income of $76,000, but did explain its decision in more detail. The court noted that Xu's unemployment was a "temporary" condition and that Xu's "work history demonstrated him to be resourceful and able to acquire new employment in his field." Because of this, and because of Xu's work history "working at jobs ranging in annual pay from $60,000 to $89,000," the court again set Xu's income at $76,000 per year, or $6,333 per month. However, the court did alter its previous conclusion regarding Zhao's secondary job, and this time determined to assign to Zhao income received from a secondary job at a rate of $1,500 per month, which when added to her other income of $2,150 meant that Zhao's imputed monthly income, for the purposes of the alimony calculation, was $3,650. Finally, the court elected to raise both Xu's and Zhao's housing expenses to $1,800 per month to allow both of them "to enjoy the same standard of living [they] had during the marriage." The court declined to raise any of Zhao's other expenses (such as medical expenses, utility bills, and insurance expenses) to match Xu's expenses. Using these numbers, the court determined that Zhao's monthly expenses were $4,183, leaving her with an unmet monthly need of $533.37. The court determined that Xu could meet that need, and therefore ordered Xu to pay Zhao $534 in monthly alimony.

ISSUES AND STANDARDS OF REVIEW

¶12 Both parties appeal from the court's alimony determination, each raising two issues for our review.

¶13 First, Xu contends that the trial court erred when it determined, in its amended findings, that Zhao's monthly housing expense was $1,800. "The trial court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity." Goggin v. Goggin , 2013 UT 16, ¶ 26, 299 P.3d 1079 (quotation simplified). Thus, we will not disturb a trial court's determinations unless they are "clearly unjust or a clear abuse of discretion." Id. (quotation simplified).

¶14 Second, Xu contends that the trial court erred when it set his income at $76,000 per year. "Trial courts have considerable discretion in determining a spouse's income, and determinations of income will be upheld on appeal absent an abuse of discretion." Leppert v. Leppert , 2009 UT App 10, ¶ 7, 200 P.3d 223.

¶15 For her part, Zhao contends that the trial court erred when, relying on the discovery sanction, it included income from a second job in her income calculation. Again, we review a trial court's determination of a spouse's income for abuse of discretion. Id .

¶16 Next, Zhao contends that the trial court erred when it did not equalize all of her imputed expenses with Xu's. Trial courts have "considerable discretion" in determining the financial and property interests of parties and we will disturb such determinations only if they are "clearly unjust or a clear abuse of discretion." Goggin , 2013 UT 16, ¶ 26, 299 P.3d 1079 (quotation simplified).

ANALYSIS

A

¶17 Xu first contends that the trial court erred when it determined that, in order to help raise her to the same standard of living the parties enjoyed during the marriage, Zhao's monthly housing expense should be considered to be $1,800. Xu challenges the trial court's determination on both procedural and substantive grounds.

¶18 Xu's procedural complaint is premised on the assumption that the trial court originally assessed Zhao's housing expenses as $650, and then sua sponte raised those expenses to $1,800 without giving Xu a chance to be heard on the matter. Xu asserts that no party "ask[ed] the [trial] court to find the housing expense to be that high," and therefore concludes that the trial court acted on its own motion, and contrary to due process, by raising Zhao's housing expenses. Xu notes that while he asked the court to amend its findings of fact, "Zhao did not file a motion or counter motion for additional findings of fact or a new trial in which she requested the Court to raise her housing expense, and Xu did not have an opportunity to oppose any such motion."

¶19 The record, however, does not support Xu's argument. As an initial matter, it was Xu who-in his motion to alter the trial court's findings-directly challenged the $650 housing expense the trial court originally assigned to Zhao, and even implied that the court should "remove" that expense from its calculation entirely. Then, in her response, Zhao raised the argument that $1,800 might be a better reflection of her monthly housing expenses because it was in keeping with the parties' standard of living prior to separation, and Xu had the opportunity to respond to that argument-and did in fact respond to it-in his reply memorandum. Thus, Xu put the issue of Zhao's housing expense before the court in the first instance, elicited a responsive counter-argument from Zhao that reflected the reasoning which eventually swayed the court, and had the opportunity to respond to that counter-argument in a reply brief. On this record, Xu has failed to persuade us that the trial court raised the issue sua sponte , or that Xu had anything less than a full and fair opportunity to address the issue.

¶20 Substantively, Xu asserts that the trial court abused its discretion in setting Zhao's monthly housing expense at $1,800 for three reasons. First, Xu argues that the trial court acted improperly by setting the parties' housing expense based on what they were paying at the time of their separation, but setting many of their other expenses based on their estimates of their post-separation financial needs. Xu argues that, because the court initially calculated his and Zhao's expenses as of the time of separation, the court "opt[ed] to adopt the standard of living existing at the time of trial" as its time frame for assessing the parties' expenses and was therefore foreclosed from including a pre-separation housing expense in its calculation.

¶21 We disagree, because a trial court may, in its discretion, assess some of the parties' expenses as of the time of separation, but nevertheless assess other expenses as of the time of trial. See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013) (stating that "[a]s a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony," but noting that "the court shall consider all relevant facts and equitable principles and may, in the court's discretion, base alimony on the standard of living that existed at the time of trial"); see also Kidd v. Kidd , 2014 UT App 26, ¶ 24, 321 P.3d 200 (noting that trial courts should "avoid focusing on actual expenses alone when assessing need because the expense level during separation may be necessarily lower than needed to maintain an appropriate standard of living for various reasons," and encouraging courts to consider "the standard of living during the marriage" as well as the expenses during separation (emphasis added) (quotation simplified) ).

¶22 Second, Xu asserts that the trial court abused its discretion in setting Zhao's monthly housing expenses at $1,800, because the "the evidence and testimony" on the record "cannot ... support[ ]" that figure. Xu argues that Zhao "presented a financial declaration ... reflecting that the rent on her residence ... was $650 per month," and that no evidence supported assigning a higher expense to her. Xu acknowledges that $1,800 was the approximate amount of the mortgage payment on the marital home prior to separation. Nonetheless, Xu argues that, to justify assigning that amount as Zhao's monthly housing expense, the court would need to make additional findings "that Zhao needed to spend $1,800 per month ... to live comfortably or to live at any particular level," and asserts that the court made no such findings.

¶23 We see the matter differently. We first note that the trial court did in fact find that its assigned housing expense reflected that Zhao "would be required to spend at least two times as much as she now pays in rent" in order "to enjoy the same standard of living she had during the marriage." We construe that statement to be a finding by the trial court that Zhao required the higher housing expense in order to live at a particular level-the level she enjoyed during her marriage. Second, we note that Xu cites to no case law-and we are aware of none-supporting his contention that a court, in determining alimony, must first make a finding that the parties need a specific expense item in order to "live comfortably" or "at any particular level" before determining to assign individual expenses as of the date of separation rather than as of the date of trial. Indeed, while the alimony statute encourages courts to consider the standard of living that "[existed] at the time of separation" in determining alimony, it does not require the court to make specific findings explaining how each imputed expense contributes or fails to contribute to that standard of living. Utah Code Ann. § 30-3-5(8)(e). We conclude that all of the evidence in the record-including, among other things, that the parties' spent $1,800 per month for housing during the marriage-is sufficient to support the trial court's amended finding regarding Zhao's housing expense.

¶24 Finally, Xu asserts that setting Zhao's housing expense at $1,800 was unwarranted because that amount was being spent, prior to separation, to house the entire family, and not just Zhao. We are unpersuaded, for two reasons. First, we note that Xu specifically asked the trial court to set his housing expense at $1,800, even though he was also living alone, because he was living in the same house in which the parties had lived during the marriage. Where one spouse asks the court to set his housing expense to reflect his perceived needs and the court has no evidence that the other spouse has significantly different needs, it is not improper for the court to set the housing expense for both spouses at the amount requested. Cf. Sauer v. Sauer , 2017 UT App 114, ¶ 10, 400 P.3d 1204 (noting that, when a husband asked for a higher housing allowance than his wife, and where there was no "claim or evidence that [the husband's] and [the wife's] reasonable housing needs differed or were wildly different than the housing they enjoyed during their marriage," this court saw "no impropriety in the trial court's decision to impute housing needs to [the wife] in the same amount as [the husband] had claimed was reasonable for him"). Second, we note that it is not an abuse of discretion for a trial court to calculate divorcing spouses' housing expenses by trying to determine what each spouse would need to live in a home of the same size and value as the marital home. See Farnsworth v. Farnsworth , 2012 UT App 282, ¶¶ 14-15, 288 P.3d 298 (holding that when a wife was "accustomed to living in a single-family home on property suitable for keeping horses," setting her housing expense at the amount that would be required to place her in a different home of that variety was "the appropriate measure of her housing needs"). Thus, the trial court did not abuse its discretion by setting Zhao's housing expense at the amount Xu had requested be allotted for his own housing, nor did it abuse its discretion by setting Zhao's housing expense at the amount she would theoretically need to continue to live in the type of home she enjoyed during her marriage: a single-family home similar to the marital home in which Xu continued to reside.

¶25 Part of the purpose of alimony is to "get the parties as close as possible to the same standard of living that existed during the marriage," and "to equalize the standards of living of each party." See Richardson v. Richardson , 2008 UT 57, ¶ 7, 201 P.3d 942. The trial court's decision to amend its findings to raise Zhao's housing expense from $650 to $1,800 was supported by competent evidence, and furthered these purposes of alimony. Accordingly, we find no abuse of discretion in the trial court's determination.

B

¶26 Xu next contends that the court erred when it set his income at $76,000 per year, despite his testimony during trial that he was unemployed. While Xu initially argued in his brief that the trial court was unjustified in imputing him income based on his prior work history, he acknowledged at oral argument that he waived any challenge to the court adopting an imputation methodology when his counsel advocated for it at trial. Indeed, at trial, Xu's counsel appropriately invited the court to assign income to Xu based on his employment history, indicated that $60,000 to $79,000 would be a reasonable range of income to consider, and asked the court to set Xu's income at $60,000. In light of this concession, Xu has narrowed his argument to assert that the court was not justified in assigning Xu an income figure of $76,000 (as opposed to $60,000).

¶27 "When determining the appropriate amount of alimony, a trial court must make findings as to the ability of the payor spouse to provide support." Rayner v. Rayner , 2013 UT App 269, ¶ 7, 316 P.3d 455 (quotation simplified). When doing so, the court shall base its income determination "upon employment potential and probable earnings as derived from" a long list of factors, including "work history." Fish v. Fish , 2010 UT App 292, ¶ 14, 242 P.3d 787 ; see also Olson v. Olson , 704 P.2d 564, 566 (Utah 1985) (noting that where a spouse "has experienced a temporary decrease in income, his historical earnings must be taken into account in determining the amount of alimony to be paid"). In this case, Xu's counsel invited the trial court to impute Xu's income based on his work history. The court did so and, after determining that Xu had an "extended history of working at jobs ranging in annual pay from $60,000 to $89,000," and reasoning that Xu's "work history demonstrated him to be resourceful and able to acquire new employment in his field," assigned Xu an income figure of $76,000, a figure that was well within both the range of income demonstrated by Xu's work history and the somewhat lower range suggested by Xu's counsel at trial.

¶28 On this record, the trial court did not abuse its discretion by imputing Xu annual income of $76,000.

C

¶29 On her cross-appeal, Zhao first contends that the trial court abused its discretion when it altered its initial calculation of her income to also reflect income from a secondary job. Zhao alleges that this was an abuse of discretion because the only "evidence before [the] court was that Zhao could not even find one job let alone a second," and that there was no evidence that she had worked in any job since 2009. Further, Zhao argues that the only evidence regarding any second job was in reference to an eight-month period in which she worked as a hotel manager, and Zhao asserts that drawing long-term conclusions from an eight-month work history is improper. Accordingly, Zhao argues that she should not have been imputed any income, and especially should not have been imputed income from both a primary and secondary job.

¶30 While under ordinary circumstances a court's inclusion of income from a second job under the conditions Zhao describes would give us pause, here Zhao fails to take into account the impact of the discovery sanction the court applied to her with regard to her income information. During discovery, Zhao refused to provide any documentation (bank statements, tax returns) to substantiate her claim that she was not receiving any income, despite being ordered to do so by the court. As a result, the court eventually imposed a discovery sanction, noting that Zhao would not be able to contradict any evidence of her income that Xu was able to introduce. In this case, Xu introduced evidence that, prior to the separation, Zhao had held both a primary and secondary job, and that Zhao was working both of those jobs at the time the parties separated. Based on this evidence, the trial court inferred that Zhao continued to work those (or similar) jobs after the parties' separation, and due to her discovery violations Zhao was prohibited from contradicting this evidence at trial.

¶31 This case is similar to Breinholt v. Breinholt , 905 P.2d 877 (Utah Ct. App. 1995). In that case, a trial court granted a divorce to a husband and wife, and issued findings of fact and conclusions of law concerning alimony. Id. at 878-79. The husband was working two jobs at the time of the alimony calculation, but the court declined to consider his income from the second job, reasoning that it should "consider only the income from the equivalent of one ... full-time job" when calculating its support award. Id. at 880 (quotation simplified). On appeal, this court disagreed, holding that "when determining an alimony award, it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs," including income from a second job. Id . (quotation simplified). Accordingly, we held that it was an abuse of discretion for the court to decline to consider the husband's income from his second job. Id .

¶32 Here, Xu presented evidence that Zhao worked two jobs at the time of separation, and asked the court to infer that Zhao continued to be so employed between the separation and the trial. Because of her discovery misdeeds, Zhao was not permitted to contradict this evidence. While the trial court initially seemed to support Zhao's position, it later reasoned that, "because of the discovery sanction," it was justified in imputing Zhao's income at the last documented level she had received, including both of her jobs. In this unique situation, the trial court did not abuse its discretion when, pursuant to the discovery sanction, it elected to impute Zhao income from both the primary and secondary jobs she held during the last time her income was documented.

D

¶33 Finally, Zhao contends that the trial court abused its discretion when it elected to equalize her housing expense with Xu's but declined to equalize their other expenses, including utility expenses, medical expenses, and insurance expenses. Zhao argues that these expenses must be equalized to allow her to enjoy "the same standard of living" as Xu.

¶34 We disagree. While Zhao is correct that the "primary aims of alimony" include bringing "the parties as close as possible to the same standard of living that existed during the marriage, or otherwise equalizing the parties' standards of living," Jensen v. Jensen , 2008 UT App 392, ¶ 13, 197 P.3d 117 (quotation simplified), we have consistently discouraged trial courts from "simply attempting to equalize the parties' income, rather than going through the traditional needs analysis," when determining alimony, id . (quotation simplified). "This is so because, regardless of the payor spouse's ability to pay," alimony should be limited by the recipient spouse's "demonstrated need." Id . (quotation simplified). Because different people may pay different amounts to enjoy the same standard of living, simply electing to equalize all of the parties' expenses is inappropriate for an alimony calculation. Id . ; see also Willey v. Willey , 951 P.2d 226, 231-32 (Utah 1997) (upholding a trial court's refusal to impute medical expenses at a value not justified by a payee spouse's demonstrated need, and reversing a court of appeals holding to the contrary).

¶35 In this case, as the trial court observed, Xu's and Zhao's basic expenses differed. As indicated by their financial declarations, they spent different amounts on their medical care, utility bills, insurance, and several other recurring expenses. However, the mere fact that Zhao spent less than Xu on, for example, medical care does not in and of itself prove that Zhao needed to spend more in order to enjoy the same standard of living as Xu did. While large expenses like mortgage payments tend to be borne equally by marital partners, other expenses (like those required for medical care) often vary greatly from person to person. The trial court did not abuse its discretion by refusing to impute Zhao expenses that matched Xu's expenses dollar-for-dollar on every line-item.

CONCLUSION

¶36 The trial court did not abuse its discretion by determining that Zhao's monthly housing expenses were $1,800, imputing income to Xu at $76,000 per year, imputing additional income to Zhao based on her second job, or by declining to impute equal expenses to both Xu and Zhao in every category. We therefore affirm the trial court's alimony calculation.

      To the extent that Xu is asserting that a trial court, when asked to reconsider one of its findings, is bound to either (a) leave the finding undisturbed or (b) change the finding to exactly what the movant requests, we find that argument unconvincing. Once a movant asks a trial court to reconsider a finding or conclusion, the trial court retains discretion to reassess that finding or conclusion in its entirety. Cf. County Board of Equalization of Salt Lake County v. Tax Comm'n ex rel. Schneiter Enters. , 899 P.2d 1228, 1230 (Utah 1995) (stating that once a party raises an issue before a reviewing body, the reviewing body is "entitled to rule on precisely the issue [the movant] presented," even if that places the movant in a worse position than he was prior to his motion).

      We note that even if Xu had not agreed to the use of his work history to impute his income, the trial court would have been within its discretion to forbid Xu from introducing any evidence that he was unemployed, because Xu opted not to disclose that fact until the day of trial. Because Zhao had no reason to believe that Xu was unemployed prior to trial, Zhao had no opportunity to prepare for imputation-of-income arguments prior to trial.


source: Caselaw Access Project

author: CHRISTIANSEN FORSTER, Judge:

license: Public Domain

text:
    Danny P. PITCHER, Appellant, v. STATE of Utah and Board of Pardons and Parole, Appellees.
    No. 20160573-CA
    Court of Appeals of Utah.
    Filed October 4, 2018
    Lorenzo K. Miller, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, Erin T. Middleton, and Amanda N. Montague, Attorneys for Appellees
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Following a parole review hearing, the Utah Board of Pardons and Parole (the Board) determined that Danny P. Pitcher would serve his maximum sentence of life in prison. Pitcher petitioned the district court for relief from the Board's decision. He now appeals from the district court's dismissal of his petition for extraordinary relief. We reverse and remand for additional proceedings.

BACKGROUND

¶2 In 1999, Pitcher pleaded guilty to two counts of sodomy on a child. For each count, he was sentenced to a prison term of five years to life, with the two sentences ordered to run concurrently. In January 2014, the Board held a parole hearing.

¶3 At that hearing, the Board considered a letter from Pitcher's son (Son), who was not one of the victims of the charges to which Pitcher pleaded guilty. In his letter to the Board, Son alleged that Pitcher had sexually abused Son, Son's friends, and Son's cousins. Also in his letter, Son asked the Board to keep Pitcher in prison. Son appeared personally at the parole hearing and reiterated this request. In addition to Son's letter, the Board received letters from several of the producers and hosts of a reality television show on which Son had appeared. These letters advocated denying Pitcher parole as well. The Board also considered other uncharged allegations of abuse from Idaho and Colorado.

¶4 The Board denied Pitcher parole and ordered that he "expire [his] life sentence." A "Rationale for Decision" checklist was attached to the order, identifying ten aggravating factors and three mitigating factors that supported the Board's decision.

¶5 Pitcher subsequently filed a petition in the district court pursuant to rule 65B(d) of the Utah Rules of Civil Procedure, seeking extraordinary relief from the Board's decision. Pitcher's petition alleged that the Board's decision to expire his maximum sentence was fundamentally unfair and constituted cruel and unusual punishment. Pitcher also alleged that the Board violated his due process rights by denying him "real" access to the information the Board was considering, failing to provide a meaningful written explanation of its decision, denying him access to legal assistance during the parole process, and failing to give him a "meaningful" opportunity to address allegations made at the hearing.

¶6 Upon initial review of Pitcher's petition, the district court determined that no claims in the petition were frivolous and that the petition should be permitted to proceed. Accordingly, the court ordered the Board to respond. The Board filed an answer asserting, among other defenses, that Pitcher had failed to state a claim for which relief could be granted. Subsequently, the district court dismissed Pitcher's petition sua sponte, determining that Pitcher's claims lacked merit. Pitcher filed a motion to reconsider, which the court denied. Pitcher now appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Pitcher asserts that the district court erred in sua sponte dismissing his petition for extraordinary relief without a motion from the Board and without providing him an opportunity to respond. Whether the district court properly dismissed the petition is a question of law, which we review for correctness.

See Lancaster v. Utah Board of Pardons , 869 P.2d 945, 947 (Utah 1994).

ANALYSIS

¶8 " Rule 65B of the Utah Rules of Civil Procedure allows a petition for extraordinary relief where no other plain, speedy[,] and adequate remedy is available." Gilbert v. Maughan , 2016 UT 31, ¶ 15, 379 P.3d 1263 (quotation simplified); see also Utah R. Civ. P. 65B(a). However, such a petition "is not a proceeding for general review, and cannot be used as such." Gilbert , 2016 UT 31, ¶ 15, 379 P.3d 1263 (quotation simplified). This is particularly true in petitions seeking review of decisions of the Board of Pardons and Parole, whose decisions involving "paroles ... or terminations of sentence ... are final and are not subject to judicial review." Utah Code Ann. § 77-27-5(3) (LexisNexis 2017). The court's review of the Board's decisions is therefore limited to situations where (1) procedural due process was denied, see Foote v. Utah Board of Pardons , 808 P.2d 734, 735 (Utah 1991), or (2) there has been a clear abuse of discretion, see Ward v. Smith , 573 P.2d 781, 782 (Utah 1978) ; see also Utah R. Civ. P. 65B(d)(2)(D) (permitting individuals to seek extraordinary relief "where the Board of Pardons and Parole has exceeded its jurisdiction or failed to perform an act required by constitutional or statutory law"). In other words, courts may review "the fairness of the process by which the Board undertakes its sentencing function," but not the result. Lancaster v. Utah Board of Pardons , 869 P.2d 945, 947 (Utah 1994) (emphasis omitted).

¶9 Rule 65B permits a court to summarily dismiss a frivolous claim for extraordinary relief without findings of fact or conclusions of law. Utah R. Civ. P. 65B(b)(5). In doing so, it must "stat[e] that the claim is frivolous on its face and the reasons for this conclusion." Id. If the court does not dismiss the claim as frivolous, the court is required to serve a copy of the petition upon the respondent and may issue an order directing the respondent to answer or otherwise respond. See id. R. 65B(b)(6).

¶10 Here, the district court did not dismiss Pitcher's claims as frivolous but instead ordered the Board to respond. After the Board filed an answer, but not a motion to dismiss, the district court sua sponte dismissed the petition because it "lack[ed] merit." The district court's memorandum decision dismissing the petition first emphasized the limits of the court's jurisdiction over the Board's actions and then noted that (1) Son fell within the Board's definition of "victim," see Utah Admin. Code R671-203-1 (2017) (defining "victim" as "any person, of any age, against whom a related crime or act is alleged to have been perpetrated or attempted") ; (2) Pitcher was not entitled to appointed counsel in connection with the parole proceedings; and (3) the Board's determination that Pitcher must expire his sentence was subject to redetermination in the future. The court then stated that Pitcher's claims lacked merit and dismissed the petition.

¶11 We agree with Pitcher that the district court erred in dismissing his petition sua sponte without a motion from the Board and without providing Pitcher an opportunity to argue the merits of his petition. The Board asserts that the court may have been merely reconsidering its non-final determination on the frivolousness of Pitcher's petition. But the frivolousness determination under rule 65B considers whether "the claim is frivolous on its face ." Utah R. Civ. P. 65B(b)(5) (emphasis added). The court engaged in this assessment, determined that Pitcher's claims were not frivolous on their face, and accordingly required the respondents to answer or otherwise respond to the petition. We are not persuaded that, in subsequently resolving the petition, the court was simply revisiting its frivolousness determination. The court did not identify this provision as a basis for its resolution of Pitcher's petition, nor did the court "stat[e] that the claim[s were] frivolous" or provide any "reasons for this conclusion." Id. It is also unlikely that the court regarded the claims frivolous on their face, on reconsideration, because it was not until the court received the Board's response to Pitcher's motion to reconsider that the court was able to determine, relying on the Board's arguments, that Pitcher's claims were meritless. By dismissing the case without further briefing or hearing, the district court denied Pitcher notice and a meaningful opportunity to defend against the dismissal. See Plumb v. State , 809 P.2d 734, 743 (Utah 1990) ("Timely and adequate notice and an opportunity to be heard in a meaningful way are at the very heart of procedural fairness." (quotation simplified) ).

¶12 The district court dismissed Pitcher's petition following the Board's filing of an answer. The parties do not dispute on appeal that the court acted sua sponte, without the prompt of a motion, and without any other apparent authority to resolve the case at that stage. Indeed, the Board "recognizes the district court's dismissal may have been procedurally inappropriate." Addressing Pitcher's motion for reconsideration, the court explained that "the claims were legally insufficient to proceed" and that "[n]o facts were found or adjudicated in this matter." The parties' arguments on appeal illustrate the conundrum created by the court's sua sponte decision. With no indication of the applicable standard or any factual findings to review, the parties struggle to fit the district court's memorandum decision into the framework of a rule 12(b)(6) dismissal or rule 56 summary judgment. See generally Utah R. Civ. P. 12(b) ; id. R. 56. Similarly, we are at a loss to select the appropriate measure by which we might meaningfully review the court's decision.

¶13 To be sure, rule 65B authorizes special procedures for petitions requesting extraordinary relief that are different from the general rules of procedure. It allows the court, for example, to set a "hearing on the merits" following the filing of a petition, even before a responsive pleading is filed. See id. R. 65B(d)(3). It also authorizes the court to direct the respondent to provide a record or transcript of the challenged proceedings. See id. In determining whether to dismiss Pitcher's claim that he was denied due process because he was not given adequate opportunity to review the evidence against him and did not have a meaningful opportunity to defend himself at the parole hearing, the legal question is not whether Pitcher actually had these opportunities but whether the denial of such opportunities, if proven, would be a violation of due process protections.

¶14 Of additional concern, the district court's decision to dismiss the petition did not address all of Pitcher's claims. The court's decision emphasized the limitations of its jurisdiction, apparently considering Pitcher's petition to be a challenge to the result of the Board's decision that Pitcher expire his life sentence. See Lancaster v. Utah Board of Pardons , 869 P.2d 945, 947 (Utah 1994) (explaining that courts "must review the fairness of the process by which the Board undertakes its sentencing function, but [the courts] do not sit as a panel of review on the result, absent some other constitutional claim"). Here, the court appears to have summarily dismissed his claims based primarily on Utah Code section 77-27-5(3), which limits judicial review of the Board's decisions. Many of Pitcher's allegations, however, raised due process or constitutional questions. These claims remain subject to judicial review. See Foote v. Utah Board of Pardons , 808 P.2d 734, 735 (Utah 1991). While the question of whether these claims are meritorious may be debatable, we agree with Pitcher that he was entitled, at a minimum, to participate in a debate about the sufficiency of the process provided by the Board at his parole hearing. While the court did address the merits of some of Pitcher's claims, it did not address those claims in full, appearing to rely instead on its assessment that the claims inappropriately challenged the Board's decision rather than the fairness of the process. Most notably, the court did not touch on Pitcher's claim that he was denied an adequate opportunity to review the evidence against him or to meaningfully defend himself at the parole hearing. The court also did not address Pitcher's claim that the Board erred in considering letters from other parties and relying on uncharged allegations of abuse in other states.

¶15 The Board argues that any failure to address the issues Pitcher asserts on appeal was harmless because Pitcher's petition did not elaborate on the facts supporting his claims. But this assertion illustrates precisely why it was error for the court to have dismissed the case sua sponte without giving Pitcher an opportunity to defend against the dismissal. Under Utah's "liberal standard of notice pleading," see Canfield v. Layton City , 2005 UT 60, ¶ 14, 122 P.3d 622, a petitioner need submit only "a short and plain ... statement of the claim showing that the party is entitled to relief" and a "demand for judgment for specified relief," Utah R. Civ. P. 8(a) ; see also id. R. 65B(b)(3) (requiring that a petition for extraordinary relief "contain a short, plain statement of the facts on the basis of which the petitioner seeks relief"). The statement of the claim should give the respondent "fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved." Williams v. State Farm Ins. Co. , 656 P.2d 966, 971 (Utah 1982) (quotation simplified). The petitioner is not required to provide full evidentiary support for the allegations at the pleading stage. We cannot conclude that the error was harmless if Pitcher asserted claims, in short and plain fashion, and was then denied the opportunity to elaborate on or develop the facts supporting his petition. Indeed, had the court proceeded to resolve the petition at a hearing on the merits, the court could have required the respondent to "deliver to the court a transcript or other record of the [challenged] proceedings." Utah R. Civ. P. 65B(d)(3).

¶16 Here, Pitcher claimed that the Board denied him due process as guaranteed under the Utah and United States Constitutions. Among other allegations, Pitcher asserted that he was denied (1) "real access to the information the Board was considering"; (2) the "right to an attorney or other legal assistance during the [Board's] decision-making process"; and (3) the "right to meaningfully address the Board and/or to defend against the ... allegations of non-victims." These are sufficient to fulfill the requirements of a short and plain statement under our notice-pleading standard. Accordingly, we see no merit in the Board's argument that we can affirm the dismissal of Pitcher's petition on the alternative basis that he failed to allege specific facts to support these allegations. When considering procedural due process claims, our supreme court has cautioned that "[p]recisely what due process requires of the board of pardons cannot be determined in the abstract, but must be determined only after the facts concerning the procedures followed by the board are" delineated. Foote , 808 P.2d at 735. This was not done.

¶17 We conclude that the district court erred in summarily dismissing Pitcher's petition sua sponte without the prompt of a dispositive motion, and without affording Pitcher a hearing on the merits of his petition as expressly provided for in rule 65B. Consequently, we express no opinion on the veracity or strength of Pitcher's underlying claims in his petition for extraordinary relief. The lack of legal authority-and corresponding standard-supporting the district court's summary dismissal, deprives us of any meaningful opportunity to gauge the correctness of that decision. Additionally, we decline the Board's invitation to step into the district court's shoes, perform the analysis it should have performed in the first instance, and affirm despite the "procedurally inappropriate" dismissal.

CONCLUSION

¶18 We conclude that the district court erred when, after determining that Pitcher's claims were not frivolous on their face, it dismissed Pitcher's petition without providing him an opportunity to address the court's dismissal or without affording him a hearing on the merits of his petition. Accordingly, we reverse the district court's dismissal of Pitcher's petition for extraordinary relief and remand for further proceedings.

      We note that rule 65B(b)"governs all petitions claiming that a person has been wrongfully restrained of personal liberty other than those specifically governed by Rule 65C." Utah R. Civ. P. 65B advisory committee's note. Here, Pitcher requested relief under subsection (d) of rule 65B, asserting that the Board "has exceeded its jurisdiction or failed to perform an act required by constitutional or statutory law." Utah R. Civ. P. 65B(d)(2)(D). Although subsection (d) does not expressly authorize dismissal of a frivolous petition, "[a] petition of any nature which fails to state a claim may be dismissed" as frivolous. See Lancaster v. Utah Board of Pardons , 869 P.2d 945, 948 (Utah 1994) (explaining that the district court properly dismissed a petition for extraordinary relief as frivolous on its face, despite the lack of express authority to do so in the applicable rule 65B subsection).

      It is worth noting that the current version of this rule eliminates this definition of "victim" and limits the definition to those against whom the defendant committed a criminal offense "for which a conviction was entered and for which the [Board] has jurisdiction" or who was "originally named in an allegation of criminal conduct." Utah Admin. Code R671-203-1(1) (2018).


text:
    STATE of Utah, Appellee, v. Joshua Robert KING, Appellant.
    No. 20170186-CA
    Court of Appeals of Utah.
    Filed October 4, 2018
    Diana Pierson and Sarah J. Carlquist, Attorneys for Appellant
    Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.
    Opinion
   HARRIS, Judge:

¶1 The district court ordered Joshua Robert King to pay restitution for damages he caused to a home in the course of burglarizing it. The court's restitution order was entered without objection. King, however, asserts that his counsel abandoned him after sentencing, and that he was either completely unrepresented or ineffectively represented during the restitution phase. We agree, and therefore vacate the restitution order and remand for further proceedings.

BACKGROUND

¶2 Late one evening, while heavily intoxicated, King attempted to forcibly enter a stranger's home. The homeowner confronted King and was able to push him out of the doorway, preventing him from entering the home. During the struggle, King fell down, his shoe came off, and the shoe broke one of the home's windows. The police later arrived and arrested King, and as they did so, he kicked and spat at them.

¶3 At the time, King was on parole related to previous offenses, and promptly contacted his parole officers to inform them of the arrest. King had exhibited relatively good behavior while on parole-at least up to that point-and King's parole officers did not immediately seek to have him recommitted to prison. King posted bail, and soon took steps to repair the damaged window, and offered to pay for any additional damage he may have caused.

¶4 Four months after his arrest, the State charged King with one count of aggravated burglary, two counts of propelling a bodily substance at a correctional or peace officer, and one count of assault against a peace officer. King retained private counsel, who eventually negotiated a plea agreement with the State in which King agreed to plead guilty to one count of burglary, a third-degree felony, and one count of propelling a bodily substance at a correctional or peace officer, a class A misdemeanor. In the plea statement, King admitted that he "tried to enter into a place [without] permission and caused damage." During his sentencing hearing, members of King's family spoke, expressing their support for King, explaining his lifelong struggle with alcohol, and detailing the many admirable character traits he possesses when not intoxicated. King spoke as well, and expressed remorse, telling the district court that, because he felt obligated to do so, he had already gone back to the home and fixed the window. Later in the hearing, King's attorney also mentioned that King had fixed the window, and the State never contradicted this account. The homeown er was not present at sentencing and had not given a statement.

¶5 At the conclusion of the sentencing hearing, the district court sentenced King to prison on the felony count and to a year in jail on the misdemeanor count, but ordered his terms of incarceration to run concurrently with each other, as well as with the sentence he was serving for his previous offense. At the prosecution's request, the district court also ordered King to pay "full and complete restitution," although the court left open the issue of the restitution amount.

¶6 Three weeks after the sentencing hearing, and before the State's deadline to seek a specific restitution amount, King's counsel filed a Notice of Withdrawal, stating that "[c]ounsel's scope of representation ... has been fulfilled." That notice was unaccompanied by a motion or a proposed order; the district court did not sign any order authorizing counsel's withdrawal.

¶7 Four days later, the State filed a Motion for Order of Restitution with the district court, requesting "complete and court ordered restitution in the amount of $400.00." This motion was served on King's counsel, but not on King himself. The motion was very brief, and neither the motion nor the accompanying order contained any documentation-or even any indication-as to what the $400 was intended to cover. No opposition or objection to the State's specific restitution request was ever filed. A few weeks later, the district court signed the State's apparently unopposed restitution order.

¶8 King learned of the restitution order a few weeks later, when he received a letter from the district attorney's office informing him that he "owe[d] money." King then sent multiple letters to the prosecutor and the court complaining about the restitution award, and the court set the matter for hearing.

¶9 At the hearing, King appeared without an attorney, and objected to the restitution award on the ground that "[t]he only thing that got broke was a window and it got fixed." The court asked King if he was still represented by counsel, and King answered that he was not. The prosecutor also believed King to be unrepresented, stating "the defendant's attorney, he withdrew." The court explained that it had signed the restitution order without holding a hearing because the order was unopposed. The court noted that King's attorney had filed a notice of withdrawal, but observed that "there wasn't an order filed that I could grant or deny the notice of withdrawal." After realizing that King may need replacement counsel, the court declined to take any further action at that hearing other than appointing a public defender to represent King in any future proceedings, including any appeal.

ISSUES AND STANDARDS OF REVIEW

¶10 King now appeals the restitution order, and asks us to consider two alternative arguments. First, King contends that he was denied the right to counsel because he was in fact unrepresented during restitution proceedings. Whether a defendant has the right to counsel during a particular phase of criminal proceedings is a constitutional issue that presents a question of law that we review for correctness. State v. Cabrera , 2007 UT App 194, ¶ 7, 163 P.3d 707.

¶11 Second, and in the alternative, King contends that, even if he was still represented during the restitution proceedings, his counsel provided ineffective assistance by failing to object to the State's motion for restitution. "A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law, which we consider de novo." State v. Courtney , 2017 UT App 172, ¶ 20, 424 P.3d 198 (quotation simplified).

ANALYSIS

¶12 We find King's second argument persuasive, and therefore do not reach the merits of his first argument. We agree with King that he was entitled to counsel during restitution proceedings in this case, see State v. Cabrera , 2007 UT App 194, ¶ 14, 163 P.3d 707 (holding that criminal defendants have the right to counsel at restitution hearings "when restitution is ordered as part of a sentence that also includes actual or suspended jail time"), and for the purposes of this appeal, we assume-without deciding-that he did in fact have an attorney during the restitution proceedings that occurred in this case. But even if King technically still had an attorney during the restitution proceedings, we agree with King that his attorney performed in a constitutionally ineffective manner by failing to object to the State's proposed restitution order.

¶13 "[T]he right to counsel is the right to the effective assistance of counsel." United States v. Cronic , 466 U.S. 648, 654, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (quotation simplified). A defendant has a right to the effective assistance of counsel, regardless of whether defendant's counsel is a public defender or a privately-retained lawyer. See Cuyler v. Sullivan , 446 U.S. 335, 344-45, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). "To succeed on a claim of ineffective assistance of counsel, a defendant must show both 'that counsel's performance was deficient' and 'that the deficient performance prejudiced the defense.' " State v. Galindo , 2017 UT App 117, ¶ 7, 402 P.3d 8 (quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

¶14 To show deficient performance, "a defendant must identify specific acts or omissions demonstrating that counsel's representation failed to meet an objective standard of reasonableness." State v. Montoya , 2004 UT 5, ¶ 24, 84 P.3d 1183 (quotation simplified). This standard does not guarantee an error-free trial. See Cronic , 466 U.S. at 656, 104 S.Ct. 2039 (stating that the Sixth Amendment is not violated "even if defense counsel may have made demonstrable errors"). Indeed, "we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and the defendant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." State v. Hales , 2007 UT 14, ¶ 70, 152 P.3d 321 (quotation simplified).

¶15 Failing to object to or oppose a motion is not, in and of itself, deficient performance, especially when an objection would be futile. See State v. Bragg , 2013 UT App 282, ¶ 20, 317 P.3d 452 (holding that a failure to object to the admission of evidence "that was clearly allowed" was not deficient performance); State v. Gunter , 2013 UT App 140, ¶ 35, 304 P.3d 866 (stating that "[t]here is no requirement that counsel engage in futile acts"). However, when there is no strategic reason for doing so and when the objection stands a reasonable chance of success, failing to object to a motion can constitute deficient performance. See, e.g. , State v. Milligan , 2012 UT App 47, ¶ 17, 287 P.3d 1 (finding deficient performance when counsel failed to object to the court's sentencing decision in a situation where there was "a reasonable probability that the trial court would have reached a different conclusion" had counsel objected).

¶16 In this case, there is no indication that counsel had any strategic reason for failing to object to the State's restitution request. The State posits that counsel may have been worried that an objection would result in a restitution order of more than $400, and that, given the relatively small amount requested, counsel made a tactical decision not to object. But nothing in the record supports this supposition, and the record contains numerous indications to the contrary. First and most notably, counsel filed a notice of withdrawal a few days before the State's restitution request and then failed to appear at the follow-up hearing, indicating that counsel's failure to object was not tactical but, rather, the result of counsel's belief that he was no longer representing King. Second, both counsel and King himself made statements, on the record, indicating that the only damage to the home that they were aware of was the broken window, and that King had already voluntarily repaired all of that damage prior to sentencing. Indeed, there is no evidence anywhere in the record-not even in the State's restitution request-that King caused any other damage to the home. Finally, in King's statements to the court at the review hearing, he avers that his attorney never contacted him to discuss the restitution request. On this record, we conclude that King has overcome the "strong presumption" that counsel's conduct was reasonable. See Hales , 2007 UT 14, ¶ 70.

¶17 To establish prejudice, "[t]he defendant must show that 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, 104 S.Ct. 2052 ; see also State v. Garcia , 2017 UT 53, ¶ 42, 424 P.3d 171. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. We are persuaded that, in this case, there is a reasonable probability that the district court would not have entered the State's restitution order if counsel had objected. As noted, both King and his counsel represented at sentencing that King had repaired the broken window, and there is no indication in the record that these representations were untrue. Moreover, there was no indication in the State's restitution paperwork-or anywhere else in the record-that its request was intended to cover anything other than the one broken window. Under these circumstances, our confidence in the accuracy of the restitution order is sufficiently undermined.

CONCLUSION

¶18 Assuming that King had an attorney at all during the restitution proceedings that occurred in this case, that attorney provided King with constitutionally ineffective assistance. Accordingly, we vacate the district court's restitution order, and remand this case for further proceedings regarding restitution.

      The parties agree that King's attorney failed to comply with applicable rules governing attorney withdrawal from representation in criminal cases. See Utah R. Crim. P. 36 ("[A]n attorney may not withdraw as counsel of record in criminal cases without the approval of the court."). Because the attorney failed to properly withdraw, he remained King's counsel of record through the restitution proceedings. We acknowledge, however, that the constitutional right to counsel "cannot be satisfied by mere formal appointment." United States v. Cronic , 466 U.S. 648, 655, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (quotation simplified); see also United States v. Collins , 430 F.3d 1260, 1264-66 (10th Cir. 2005) (holding that, where an attorney appeared at a hearing but, due to a pending motion to withdraw, "remained silent" and refused to advocate on his client's behalf, the client was effectively unrepresented for Sixth Amendment purposes). We need not delve deeper into this question, however, because we are persuaded that, even if King technically had a lawyer during the restitution proceedings, that attorney was ineffective.


author: TOOMEY, Judge:

text:
    STATE of Utah, Appellee, v. Brian NEWTON, Appellant.
    No. 20170205-CA
    Court of Appeals of Utah.
    Filed October 12, 2018
    Ronald J. Yengich, Salt Lake City, Attorney for Appellant.
    Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee.
    Judge Kate A. Toomey authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.
    Opinion
   TOOMEY, Judge:

¶1 A jury convicted Brian Newton of one count of first-degree aggravated sexual assault and one count of third-degree aggravated assault. After trial, Newton obtained new counsel and filed a motion to arrest judgment and for a new trial (the Motion for New Trial), claiming a jury instruction error, a Brady violation related to Victim's cell phone, and four instances of ineffective assistance of trial counsel. The district court denied the Motion for New Trial. We agree with the district court that there was no error in the jury instruction, that the State did not commit a Brady violation, and that the evidence on Victim's phone was neither material nor exculpatory. Because Newton fails to address the district court's ruling on the remaining ineffective assistance of counsel claims, we decline to address them on appeal. Accordingly, we affirm.

BACKGROUND

¶2 Victim attended a party at a friend's house where she met Newton and his girlfriend. Everyone at the party had been consuming alcohol. Victim spoke with Newton at the party but felt uncomfortable around him, at first, and told him that she thought "he was weird and creepy." But he was "nice after that."

¶3 The party continued through the early morning hours of the following day. At around 3:00 a.m., Newton asked Victim if she wanted to leave and get something to eat. Victim agreed, stating that she "didn't want to fall asleep" because she was waiting for her boyfriend. Newton first drove Victim to a fast food restaurant where Newton ordered food. He then drove Victim to a truck stop and parked in a dark part of the parking lot, away from other vehicles.

¶4 Newton and Victim listened to music for a while, and then he exited the vehicle, opened Victim's door, leaned her seat back, and got on top of her. Victim testified that she did not say anything at first but thought to herself, "What's going on." Newton "[f]orcibly" removed all of Victim's clothing and undergarments while she was "screaming and crying and pushing him." Newton put his hand around her neck and choked her to the point that she felt she was "going to lose consciousness" and then raped her. He first penetrated his penis into her vagina and then attempted to penetrate his penis into her anus but was unsuccessful because she "freaked out even more." Newton then grabbed a gun, held it to her head, and continued to rape her vaginally while she "cr[ied] quietly."

¶5 At one point, Victim said she needed to throw up. After Newton rolled down the window, she attempted to make loud retching noises to get the attention of anyone who might be nearby. She did not try to scream or call for help while the window was rolled down, because she feared that Newton would shoot her. Victim's efforts to summon assistance were unsuccessful. After ejaculating, Newton returned to the driver's side of the vehicle and Victim dressed. Newton drove away from the truck stop and told Victim that "he had to make a phone call to a friend to see if he had to kill [her] or not." When he slowed down at a red light, Victim jumped out and ran barefoot to the nearest neighborhood she could find, leaving her cell phone in the vehicle.

¶6 Victim eventually arrived at a gas station where a man offered to help by giving her a ride. Although Victim did not know the man, Victim felt "scatterbrained" and "needed help," so she accepted his offer, and he drove her to her friend's house. When Victim arrived at the friend's house the police were already there. Victim explained to an officer that Newton raped her and threatened her with a gun. The officer told her to go to the hospital for a sexual assault examination.

¶7 During the examination, the sexual assault nurse examiner (Nurse) swabbed Victim's vagina, mouth, and belly button to collect DNA, which matched Newton's DNA. Nurse also took photographs of Victim's body. One photograph revealed a petechia-redness of the skin caused by pressure, either sucking or pushing-on Victim's trachea, which is an injury "consistent with strangulation." The other photographs included: three injuries on Victim's breasts and one on the front of a shoulder, marked by redness and a petechia ; a bruise on the inside of an elbow and one on a forearm; numerous bruises and a petechia on her thighs; bruises on her knees and an ankle; and a blister on her heel"from walking barefoot after the assault." Nurse also examined Victim's genital injuries and noted bruises and an open abrasion in and around her labia. At trial, Nurse testified that there was also a "little chunk of skin" missing in a location where "[a]nybody who had [sustained] an injury like that consensually would be [the result of] an accident and ... [i]ntercourse would be stopped by the woman because it would be very painful." Nurse also testified that the injuries could be "consistent with non-consensual intercourse," but she also conceded that "regardless of how careful you are, there can be some sort of injuries sometimes during consensual intercourse."

¶8 Newton testified in his defense at trial. He said that, at the party, Victim "asked [him] if [he] wanted to go get something to eat." He agreed and escorted her to his car where he "checked for [his] concealed carry [gun] because [he] wouldn't want it to be missing and be used in a possible crime." Newton kept his gun in a safe under his seat that requires a "four to six entry combination" to open. He then drove Victim to a fast food restaurant. After picking up his order, they returned to his car and he started to drive away. He testified that when he "reached back to put [his] hand on [her] headrest," she put her hand on his leg and "proceeded to move her hand up ... [and] started to undo [his] pants." Newton decided to pull over into a parking lot. Victim began to stroke his penis and then they started to kiss. According to Newton, Victim "climbed over on top of [him] in the driver's seat" and they removed their clothes.

¶9 According to Newton, while engaging in sexual intercourse, Victim bumped the horn on the steering wheel, and they both agreed to move to the passenger seat. Newton described different sexual positions they used, including being on top of and behind Victim. At one point, Victim said she needed to throw up. Newton rolled down the window and heard some retching noises after which Victim said she felt fine. He testified they both put their clothes back on after having sex and he drove Victim to her house. Newton testified that Victim "passed out" during the drive. When he got to her house, he left Victim sitting on a wooden bench on the porch. He also testified that he never removed the gun from the safe and the only time Victim could have seen it was when he "opened the safe to check" that it was still there.

¶10 The jury convicted Newton of one count of first-degree aggravated sexual assault and one count of third-degree aggravated assault. He was acquitted of a second count of first-degree aggravated sexual assault and one count of first-degree aggravated kidnapping.

¶11 Following the convictions, Newton hired new counsel who filed the Motion for New Trial. Newton argued that his original trial counsel rendered ineffective assistance by failing to object to the jury instruction defining rape. He also argued that the State committed a Brady violation when it did not conduct a forensic examination of Victim's cell phone.

¶12 The court first addressed the jury instruction claim. The jury was instructed that to convict Newton of aggravated sexual assault, the jury was required to find:

1. The defendant, BRIAN NEWTON,
2. In the course of committing rape,
3. Did any one of the following:
a. Used, or threated [Victim] with the use of, a dangerous weapon, or
b. Compelled, or attempted to compel, [Victim] to submit to rape, by threat of kidnapping, death, or serious bodily injury to be inflicted imminently on any person; and
4. The defendant acted intentionally, knowingly, or recklessly.

The next instruction read: " 'Rape' as defined in the law means the actor knowingly, intentionally, or recklessly has sexual intercourse with another without that person's consent."

¶13 Newton argued that State v. Barela , 2015 UT 22, 349 P.3d 676, "compel[led the] court to find [his] trial counsel ineffective for failing to object to the jury instruction given on the elements of the crime of Rape because [it] did not clearly establish the requirement of mens rea as to [Victim's] non consent." But the court disagreed, distinguishing the rape instruction in Barela from the instruction given at Newton's trial. It explained that, because the instruction was one sentence long and the terms "knowingly, intentionally or recklessly ... immediately precede[d] words describing the prohibited conduct, sexual intercourse with another person without that person's consent," "[t]here [was] no room for the jury to imply a difference between the act of intercourse and the non-consent of [Victim]." Accordingly, the court concluded that trial counsel was not constitutionally ineffective for failing to object to the instruction and that the district court did not commit plain error when it gave the rape instruction to the jury.

¶14 The court also considered Newton's Brady claim. In support of his argument that the State committed a Brady violation, Newton directed the court to his pretrial motion for access to Victim's cell phone "for the purpose of a forensic examination," asserting that the cell phone "may have exculpatory evidence contained within it" and may undermine the jury's verdict. The State opposed the motion, arguing that "the State is not aware of evidence contained on the phone that 'tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced punishment.' " (Quoting Utah R. Crim. P. 16(a)(4).) The State further noted that Newton did not show "good cause" to authorize the search of Victim's cell phone because the motion was based on Newton's "naked belief that the phone 'may have exculpatory evidence contained within it.' " (Quoting Utah R. Crim. P. 16(a)(5).) The police did not conduct a forensic examination of Victim's cell phone, but the State provided trial counsel with the "call and text records" obtained from it. Following the Motion for New Trial, the court determined that the content of the phone and its condition when found were relevant to Newton's post-trial claims and ordered a "full forensic examination of the cell phone."

¶15 The forensic analysis revealed that Victim entered Newton's name and cell phone number into her phone at around 3:09 a.m., shortly after they left the party and prior to the rape. It also revealed a "series of phone calls and text messages that were received" during the period between their departure from the party and the rape. Following an evidentiary hearing, the court determined that the cell phone evidence was neither material nor exculpatory, because the jury could have interpreted it to mean that Victim had "no bias" against Newton prior to the rape, and because the "information found on the phone also corroborated the testimony that friends were trying to reach [Victim] for hours without success." The court concluded that the "evidence found on [Victim's] phone post-trial was unlikely to have affected the verdict" given that "the evidence against [Newton] was substantial" and that the forensic examination of the cell phone corroborated Victim's testimony.

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

ISSUES AND STANDARDS OF REVIEW

¶17 Newton contends the "jury was improperly instructed regarding the mens rea element of rape" and asks this court to review this issue for plain error, manifest injustice, and ineffective assistance of counsel. Newton raised this issue before the district court in the Motion for New Trial, based on the ineffective assistance of counsel. We therefore review Newton's argument only to the extent he challenges the district court's ruling. See Allen v. Friel , 2008 UT 56, ¶ 4, 194 P.3d 903 (affirming the district court's decision because the defendant "ignored one of the most fundamental principles of the appellate process when he did not identify any flaws in the district court's order that required reversal"); cf. Ellis v. State , 2014 UT App 50, ¶ 5, 321 P.3d 1174 (per curiam) ("Because an appellate court reviews the decision of a [district] court, an appellant must address the rationale of the [district] court's rulings and identify why the ruling should be overturned."). When the district court "has previously held an evidentiary hearing on a motion based on ineffective assistance of counsel, such a claim presents a mixed question of law and fact." State v. Burnside , 2016 UT App 224, ¶ 18, 387 P.3d 570 (quotation simplified). We therefore "review the district court's factual findings for clear error and its legal conclusions for correctness." Id.

¶18 Newton also contends the State "failed to pursue and disclose material evidence from [Victim's] cell phone," which he argues amounted to a Brady violation. Because this issue was raised before the district court, we review the district court's "factual findings for clear error and its legal conclusions for correctness." Id. Relatedly, Newton contends the district court erroneously determined the evidence located on Victim's cell phone was not material and exculpatory and therefore erred in denying the Motion for New Trial on that basis. When the district court denies a motion to arrest judgment and for a new trial, we review that decision for an abuse of discretion, but "we review the legal standards applied by the [district] court in denying such a motion for correctness." State v. Montoya , 2017 UT App 110, ¶ 11, 400 P.3d 1193 (quotation simplified).

¶19 Finally, Newton contends his trial counsel was ineffective for failing to (1) "object to inadmissible prejudicial testimony," (2) "investigate," and (3) "adequately prepare for trial." Newton raised these claims of ineffective assistance of counsel before the district court. The court held evidentiary hearings on these allegations and issued an order denying Newton's motion, supported with findings of fact and conclusions of law.

¶20 On appeal, Newton makes the same three arguments, without challenging the court's findings of fact or conclusions of law. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Craft , 2017 UT App 87, ¶ 15, 397 P.3d 889 (quotation simplified). But Newton does not raise these issues for the first time on appeal. Instead, he asserts the same arguments that the district court ruled on. The issues before us are therefore mixed questions of law and fact, and "we review the district court's factual findings for clear error and its legal conclusions for correctness." Burnside , 2016 UT App 224, ¶ 18, 387 P.3d 570 (quotation simplified). To succeed on appeal, Newton necessarily must challenge the district court's factual findings and conclusions of law, and he cannot make the same arguments anew while ignoring the proceedings below that adjudicated the same issues. See id. ¶¶ 42-43. Because Newton "has failed to address (or even acknowledge) the [district] court's decision on the[se] issue[s]," see id. ¶ 42, he cannot meet his burden of persuasion on appeal and we therefore do not further address them, see Ellis , 2014 UT App 50, ¶ 5, 321 P.3d 1174.

ANALYSIS

I. The Jury Instruction

¶21 Newton contends the district court erred in determining that trial counsel was not constitutionally ineffective for failing to object to the rape jury instruction and in denying the Motion for New Trial on that basis. He argues that the court erred in determining the rape instruction was correct because the instruction was one sentence that did not separate the mens rea from the acts required to commit rape. The instruction read: " 'Rape' as defined in the law means the actor knowingly, intentionally, or recklessly has sexual intercourse with another without that person's consent." He asserts that the instruction did not provide that "knowingly, intentionally, or recklessly" applied to "the element of non-consent" and counsel should therefore have objected to it. We disagree.

¶22 To succeed on a claim of ineffective assistance of counsel, a defendant must demonstrate "(1) that counsel's performance was objectively deficient, and (2) a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial." State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 ; see also Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When the defendant fails to make a sufficient showing on one of the Strickland prongs, we need not address both of them. See State v. Veale , 2012 UT App 131, ¶ 5, 278 P.3d 153. Because Newton fails to demonstrate that trial counsel performed deficiently, we do not address the prejudice prong.

¶23 To demonstrate that trial counsel performed deficiently, Newton "must overcome the strong presumption that his trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsel's actions." Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). "It is well settled that counsel's performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests." State v. Perez-Avila , 2006 UT App 71, ¶ 7, 131 P.3d 864. Newton therefore must demonstrate that counsel's objection to the rape instruction would not have been futile.

¶24 Here, the district court determined that the jury instruction defining the elements of rape was "not incorrect and therefore [did] not provide a basis for a claim of ineffective assistance of counsel." The court rejected Newton's argument that the jury instruction defining rape was similar to the erroneous instruction in State v. Barela , 2015 UT 22, 349 P.3d 676. We likewise conclude that the jury instruction in Barela is distinguishable from the instruction given at Newton's trial.

¶25 In Barela , the jury was instructed that to find Barela guilty of rape it would have to find:

1. The defendant, Robert K. Barela,
2. Intentionally or knowingly;
3. Had sexual intercourse with K.M.;
4. That said act of intercourse was without the consent of K.M.

Id. ¶ 13. The Barela court held that the "instruction was in error" because it "implied that the mens rea requirement ... applied only to the act of sexual intercourse, and not to [the victim's] nonconsent ... by coupling the mens rea requirement directly with the element of sexual intercourse, and by articulating the element of [the victim's] nonconsent without any apparent counterpart requirement of mens rea." Id. ¶ 26. Further, the erroneous instruction "was reasonably likely to have affected the verdict" because "even in [the victim's] account, she never explicitly (in words) or openly (in physical resistance) rebuffed Barela's advances." Id. ¶¶ 28-29. The victim's account of the alleged rape was also inconsistent over time. See id. ¶ 11.

¶26 Here, the jury instruction provided: " 'Rape' as defined in the law means the actor knowingly, intentionally, or recklessly has sexual intercourse with another without that person's consent." Unlike in Barela , the instruction did not separate the mens rea from the act or the element of non-consent. In addition, the Utah Code provides that "[a] person commits rape when the actor has sexual intercourse with another person without the victim's consent." Utah Code Ann. § 76-5-402(1) (LexisNexis 2017). Our legislature has provided that "when the definition of [a criminal] offense does not specify a culpable mental state and the offense does not involve strict liability, intent, knowledge, or recklessness shall suffice to establish criminal responsibility." Id. § 76-2-102. The application of the required culpable mental state of "intent, knowledge, or recklessness" to section 76-5-402's definition of rape results in the rape instruction provided to the jury. We are therefore unpersuaded by Newton's argument that, because "the jury was not law-trained," "it [was] unrealistic for counsel, or the court, to assume that the jury would know based on the one sentence instruction, that mens rea was also required for the element of non-consent."

¶27 To further support our conclusion that the jury instruction properly informed the jury of the necessary elements of rape, we refer to the jury instruction for rape given in State v. Marchet , 2009 UT App 262, 219 P.3d 75. In that case, the jury was instructed that it could convict the defendant of rape if it found:

1. ... [the defendant] had sexual intercourse with [the victim]; and
2. That said act of intercourse was without the consent of [the victim]; and
3. That the defendant acted intentionally or knowingly or recklessly.

Id. ¶ 21. The defendant challenged the instruction, arguing that it "[did] not adequately inform the jury that the State had the burden of proving his mental state with regard to each element of the crime of rape." Id. Specifically, he argued that the instruction "did not require the jury to find any mental state on [the defendant's] part with regard to [the victim's] consent or lack thereof." Id. (quotation simplified). This court disagreed, explaining that the Utah Code "defines the crime of rape as consisting of two elements: (1) the act of sexual intercourse (2) committed without the other person's consent." Id. ¶ 22. It further explained that, under the Utah Code, the defendant could not be convicted of rape unless he acted intentionally, knowingly, or recklessly. Id. The rape instruction therefore "accurately identified each element of the crime of rape and correctly stated the applicable mental state" because the jury was instructed that to convict the defendant of rape it "must find beyond a reasonable doubt that he intentionally, knowingly, or recklessly had nonconsensual sexual intercourse with [the victim]." Id.

¶28 The jury instruction in Newton's case is more similar to the instruction provided in Marchet than to the one provided in Barela . In addition, it is even less likely that the jury in Newton's case misinterpreted the elements necessary to find that he raped Victim than the jury in Marchet . Rather than providing the culpable mental state as a catch-all at the end of the instruction, see id. ¶ 21, Newton's instruction seamlessly provided that the applicable mens rea applied to both the act of sexual intercourse and Victim's non-consent.

¶29 We agree with the district court that there was no error in the jury instruction and therefore there was "no room for the jury to imply a difference between the act of intercourse and the non-consent of [Victim]." As a result, any objection on trial counsel's part would have been futile and Newton's claim of ineffective assistance of counsel with respect to the jury instruction fails.

II. The Brady Violation

¶30 Newton contends the district court erroneously denied the Motion for New Trial because (1) the State violated its "affirmative duty to seek out exculpatory evidence, and turn such evidence over to the defendant," and (2) the court erred in determining that the evidence collected from Victim's cell phone was not material and exculpatory. On his first point, he argues that Victim's cell phone was a critical piece of evidence that was alluded to throughout trial and that the State was "obligate[d]" to review the evidence that it may have contained. On his second point, he asserts that the evidence collected from Victim's cell phone was material and exculpatory because it "directly contradict[ed] [Victim's testimony] and undermine[d] her credibility." We address each argument in turn.

¶31 "[T]he suppression by the prosecution of evidence favorable to an accused upon request [by the defense] violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Further, "regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley , 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quotation simplified).

¶32 First, Newton argues the State committed a Brady violation when it failed to conduct a forensic examination of Victim's cell phone once it had been turned over to the police. He cites Kyles in support of this argument. But his reliance on Kyles is misplaced. There, the United States Supreme Court explained that the prosecution has "a degree of discretion" when determining "materiality in terms of the cumulative effect of suppression" of evidence. Id. at 437, 115 S.Ct. 1555. But this discretion has "a corresponding burden." Id. Because the prosecution "alone can know what is undisclosed, [it] must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of 'reasonable probability' is reached." Id. "This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Id. (emphasis added).

¶33 The evidence on Victim's cell phone was unknown to the prosecution or any other person "acting on the government's behalf in [this] case." See id. Before trial, the State opposed Newton's motion to discover Victim's cell phone "for the purpose of a forensic examination," arguing that "the State [was] not aware of evidence contained on the phone that 'tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced punishment.' " (Quoting Utah R. Crim. P. 16(a)(4).) The State further argued that Newton did not show "good cause" to authorize the search of Victim's cell phone because the motion was based on Newton's "naked belief that the phone may have exculpatory evidence contained within it." See Utah R. Crim. P. 16(a)(5). And at a post-trial evidentiary hearing, the prosecutor testified that he "had no idea of anything that was on the phone," either inculpatory or exculpatory, and that he never directed anyone to "look into what was on the phone."

¶34 The prosecutor therefore did not have knowledge of the forensic evidence of the cell phone, and the record does not reflect that Newton elicited evidence that the prosecutor or any other individual working for the State should have known there was exculpatory evidence on the cell phone. See Kyles , 514 U.S. at 437, 115 S.Ct. 1555 (explaining that prosecutors have "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police" (emphasis added) ). And none of the cases Newton cites require the prosecution to "seek out" exculpatory information unknown to it or any others acting on its behalf. We therefore reject Newton's argument that, "once the police were in possession of [Victim's] cell phone, ... the State had a constitutional obligation to seek out any evidence that was on the phone, regardless of whether it thought that the phone would contain anything of value." We conclude that the State did not commit a Brady violation when it did not independently conduct a forensic examination of Victim's cell phone.

¶35 Second, Newton argues that the district court erred when it determined that the evidence collected from Victim's cell phone was not material and exculpatory.

¶36 The district court determined that the evidence on Victim's cell phone was relevant to Newton's claim of ineffective assistance of counsel. It therefore granted Newton's post-trial motion to discover Victim's cell phone and ordered a forensic examination to determine whether it contained exculpatory evidence. The examination revealed that Victim entered Newton's name and cell phone number into her phone after leaving the party, but prior to the rape, and that her phone received a series of unanswered phone calls and text messages. The court concluded this evidence was the information was not material and exculpatory and was "unlikely to have affected the verdict," because it could show only that Victim had "no bias" against Newton prior to the rape, and it corroborated Victim's account that her friends unsuccessfully attempted to contact her during the incident.

¶37 Newton challenges this conclusion. He relies on the assertion that the evidence that Victim entered his phone number into her cell phone just before the rape undermined her credibility because she testified that he was "weird and creepy." But Victim also testified on direct and cross-examination that after telling Newton that she thought he was "weird and creepy," "he was nice after that." In addition, Newton fails to explain how entering his phone number before the rape would have "provided circumstantial evidence of consent." We therefore conclude the district court did not err in denying the Motion for New Trial after determining that the evidence on Victim's cell phone was not material and exculpatory.

CONCLUSION

¶38 We conclude that because the jury instruction defining rape accurately articulated the elements of the crime, any objection to the instruction would have been futile and Newton therefore cannot show ineffective assistance of counsel. We further conclude the State did not commit a Brady violation, because it did not have knowledge that the cell phone may have contained exculpatory evidence. Finally, we conclude the district court did not err in determining that the forensic examination of the cell phone did not reveal material and exculpatory evidence. Accordingly, we affirm.

      Brady v. Maryland , 373 U.S. 83, 86-87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("[T]he suppression by the prosecution of evidence favorable to an accused upon request violates [the Due Process Clause of the Fourteenth Amendment] where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.").

      "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal." State v. Holgate , 2000 UT 74, ¶ 2, 10 P.3d 346 (quotation simplified).

      During the examination, Victim stated that one of the bruises on her right thigh existed before the assault.

      Newton raised numerous other ineffective assistance of counsel claims in the Motion for New Trial, but as we discuss in greater detail below, see infra ¶¶ 19-20 & n.8, we are precluded from reaching those arguments and therefore do not articulate the factual circumstances relevant to them. We note, however, that any remedy Newton might have for his argument that he did not receive a fair trial because he was not represented by the specific attorney his father hired on his behalf does not lie with this court. Especially considering the district court's conclusions that the attorney who represented Newton at trial was not constitutionally ineffective on any claim Newton raised and the court did not find credible the testimony of Newton's father.

      A surveillance video of the fast food restaurant showed that Newton and Victim entered the restaurant around 3:00 a.m., that Victim was seen using her cell phone, and that Victim and Newton left together at around 3:09 a.m.

      To the extent Newton argues that we should review this issue under the rubrics of plain error and manifest injustice, those arguments fail. "[I]n most circumstances manifest injustice is synonymous with plain error," and to succeed on a claim of plain error, Newton "must establish harmful error that should have been obvious to the [district] court." State v. Reigelsperger , 2017 UT App 101, ¶ 39, 400 P.3d 1127. Because we conclude that there was no error in the rape jury instruction, see infra ¶ 29, Newton cannot prevail under the rubric of plain error.

      Newton also argues that the "cumulative errors require a new trial." "Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence that a fair trial was had." State v. Dunn , 850 P.2d 1201, 1229 (Utah 1993) (quotation simplified). Because we conclude that no error occurred, see infra ¶¶ 29, 34, 37, the cumulative error doctrine does not apply.

      A situation in which a defendant argues ineffective assistance of counsel in post-trial motions before the district court is similar to petitions for post-conviction relief based on ineffective assistance of counsel. These motions and petitions are filed with the district court and the district court generally rules on them with supportive findings of fact and conclusions of law. In appeals from the denial of a petition for post-conviction relief, the defendant must challenge the rationale for the district court's ruling to demonstrate error in that ruling. See Ellis v. State , 2014 UT App 50, ¶ 5, 321 P.3d 1174 (per curiam). We see no difference in a defendant's burden on appeal when the district court has adjudicated the same claim of ineffective assistance of counsel in a post-trial motion for a new trial. Compare Archuleta v. Galetka , 2011 UT 73, ¶ 25, 267 P.3d 232 (explaining that, in the context of post-conviction relief, "when confronted with ineffective assistance of counsel claims, we review a lower court's purely factual findings for clear error, but we review the application of the law to the facts for correctness" (quotation simplified) ), with State v. Burnside , 2016 UT App 224, ¶ 18, 387 P.3d 570 ("In a situation ... in which the [district] court has previously held an evidentiary hearing on a motion based on ineffective assistance of counsel ... we review the district court's factual findings for clear error and its legal conclusions for correctness." (quotation simplified) ).