                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2020 UT 24

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Respondent,
                                      v.
                            BRIAN NEWTON,
                               Petitioner.

                           No. 20180915
                      Heard December 9, 2019
                        Filed May 14, 2020

           On Certiorari to the Utah Court of Appeals

                     Third District, Salt Lake
                   The Honorable Paul B. Parker
                         No. 121905738

                                Attorneys:
  Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic.
     Gen., T. Langdon Fisher, Joseph S. Hill, Salt Lake City,
                         for respondent
 Ronald J. Yengich, Herschel Bullen, Salt Lake City, for petitioner

  JUSTICE HIMONAS authored the opinion of the Court, in which
      CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE PEARCE, and JUSTICE PETERSEN joined.
      JUSTICE PETERSEN filed a concurring opinion, in which
      CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE HIMONAS, and JUSTICE PEARCE joined.

   JUSTICE HIMONAS, opinion of the Court:
                          INTRODUCTION
   ¶1 Brian Newton had sexual intercourse with M.F., a woman
he met at a party some hours earlier. He said that M.F. consented
to—and even initiated—the intercourse. M.F., in contrast, said
that Newton raped her. In the aftermath, Newton was convicted
                          STATE v. NEWTON
                        Opinion of the Court

of aggravated sexual assault and aggravated assault. He then
obtained new counsel, moved for a new trial, and claimed (1) that
his trial counsel was ineffective for not having objected to the jury
instruction for rape and (2) that the State had violated the
disclosure requirements of Brady v. Maryland, 373 U.S. 83, 87
(1963), by refusing to conduct a forensic exam of M.F.’s cell phone.
The district court denied the motion and the court of appeals
affirmed. Because Newton was not prejudiced by any alleged
error in the jury instruction, 1 because the State had no duty under
Brady to conduct a forensic examination on the cell phone before
trial, and because the evidence ultimately retrieved from a
posttrial forensic examination of the cell phone was not material,
we affirm.
                          BACKGROUND
   ¶2 M.F. accused Newton of raping her in his car. He was
charged with two counts of aggravated sexual assault, one count
of aggravated kidnapping, and one count of aggravated assault.
At trial, M.F. and Newton each testified, giving their conflicting
accounts of what happened.
              M.F.’s and Newton’s Conflicting Accounts
    ¶3 M.F. testified at trial that Newton was at a party that she
attended on May 29, 2012. M.F. said that she drank alcohol at the
party and that she “told [Newton] that [she] hated him” because
“he was weird and creepy.” She explained at trial that she had felt
that way because of “the vib[e]s he gave off but then he was nice
after that.” Eventually, the two left the party together at around
3:00 a.m. to get a bite to eat. Newton drove her to a Subway,
where he bought a sandwich, and then to a parking lot, where the
attack occurred.
    ¶4 M.F. described how it unfolded. Newton got out of the
car, walked to the passenger side, and got on top of her, leaning
her chair back. Newton then unzipped her dress and “forcibly”
removed her underwear and bra. Meanwhile, M.F. was “fighting
back,” “screaming and crying and pushing him.” Newton then

__________________________________________________________
   1  Despite not opining on whether counsel was deficient in
failing to object to the jury instruction for rape, and for the benefit
of the courts and lawyers of this state, we encourage trial courts to
use Utah’s model jury instruction on rape. Infra ¶ 28.


                                    2
                        Cite at: 2020 UT 24
                       Opinion of the Court

put his hand around M.F.’s throat, choking her to the point that
she felt as though she would lose consciousness. At that point,
Newton raped M.F. vaginally. When he tried to rape her anally,
she “freaked out even more,” and he reacted by grabbing a gun
from the floor of the driver’s side of the car and pointing it at her
head, saying that if she was quiet and let him finish, he would
take her back to the party. He then flipped her back over and
again raped her vaginally.
    ¶5 M.F. also described how she fled from the car after
Newton drove away from the parking lot and slowed down for a
red light. In doing so, she said, she left her cell phone in his car.
M.F. began walking home. She ended up, however, at a Chevron
from which a stranger gave her a ride to her friend’s house. Some
of her friends were there—having been concerned about what had
happened to her and having had called the police. M.F. told them
about the attack. A police officer told M.F. that she should go to
the hospital, and she did. There, a sexual assault nurse examiner
performed a rape exam on M.F. 2
    ¶6 Newton told a story at trial very different than that of
M.F. He testified that his encounter with M.F. was entirely
consensual. He even said that M.F. initiated the encounter as they
left the Subway by stroking his penis and then—after Newton
parked—climbing on top of him to have intercourse. He also
testified that M.F. performed oral sex on him. Afterwards, he said,
he dropped her off at a place he thought to be her home. He said
that the only time M.F. would have seen a gun was when he got
into his vehicle and checked to make sure it was not stolen, as he
always did.
                           M.F.’s Injuries
   ¶7 At trial, the sexual assault nurse examiner—who had
performed a rape exam on M.F.—also testified. The nurse
observed that M.F.’s dress was on inside out and photographed
several injuries. Among the injuries were multiple genital injuries.
Specifically, M.F. had abrasions, bruising, and a “little chunk of



__________________________________________________________
   2When asked whether she would be surprised to learn that her
blood alcohol level was 0.09 at the hospital on May 30, M.F.
responded that she would not be.


                                   3
                         STATE v. NEWTON
                       Opinion of the Court

skin missing.” 3 The nurse testified that anybody who sustained
this last genital injury during consensual sex would stop the
intercourse since it would “be very painful.” The genital injuries,
the nurse agreed, could be “consistent with non-consensual
intercourse.”
    ¶8 Besides the genital injuries, M.F.’s trachea was tender and
slightly red. She also had a petechia (“redness of the skin that is
caused by pressure,” either sucking or pushing) on the neck,
which the nurse testified is “the type of injury that is consistent
with strangulation.” M.F. had other symptoms that indicated
strangulation too, including neck pain, difficulty swallowing,
voice changes, and memory loss.
   ¶9 M.F. also had several bruises on her arms and legs, two
scratches (one on the leg and one on the ankle), a blister on the
right heel, 4 areas of redness and a petechia on her breasts, and
redness on both shoulders and a scratch on one of them.
              The Rape Jury Instruction and the Verdict
    ¶10 At the conclusion of the trial, the district court gave the
following jury instruction: “‘Rape’ as defined in the law means the
actor knowingly, intentionally, or recklessly has sexual
intercourse with another without that person’s consent.”5
Newton’s counsel did not object to that instruction.




__________________________________________________________
   3 The sexual assault nurse examiner testified this last injury
would be caused, not by a penis, but by something sharp such as
a fingernail. Newton argues that the injury is inconsistent with
M.F.’s testimony because M.F. never testified that Newton used
something other than his penis. The sexual assault nurse
examiner, however, did testify that, during M.F.’s exam, M.F.
answered that Newton touched her vagina with both his penis and
a finger.
   4 The nurse reported that M.F. said this injury happened
because she walked barefoot after the attack.
   5The jury was also correctly instructed that a finding of rape
was required to convict Newton of aggravated sexual assault. See
UTAH CODE § 76-5-405.


                                   4
                        Cite at: 2020 UT 24
                       Opinion of the Court

             The Verdict, Posttrial Motions, and Appeal
    ¶11 The jury convicted Newton of one count of aggravated
sexual assault and aggravated assault and acquitted on the other
charges. After trial but before sentencing, Newton obtained new
counsel and moved for a new trial. Among the arguments raised
in the motion was the claim that his trial counsel had provided
ineffective assistance by failing to object to the rape jury
instruction.
    ¶12 Besides arguing for ineffective assistance of counsel,
Newton also contended that the State’s failure to conduct a
forensic examination of M.F.’s cell phone violated the disclosure
requirements of Brady v. Maryland, 373 U.S. 83, 87 (1963). M.F.’s
cell phone had been found about a year and a half after the assault
and had been given to the police. The State never did a forensic
examination of the cell phone, but had previously provided
Newton with a copy of the call and text logs of M.F.’s cell phone. 6
In response to Newton’s posttrial motion, the district court
ordered a forensic examination of the cell phone, the findings of
which were to be sent to the court for in camera review. The
examination revealed that Newton’s name and cell-phone number
had been entered in M.F.’s cell phone at 3:09 a.m. on the date of
the assault (while or near the time Newton and M.F. were at the
Subway). It also showed multiple text messages and phone calls
that had been received in the early morning hours that day, which
“were consistent with the testimonies of friends and family trying
to reach [M.F.] without response.” The last sent text was at 2:10
a.m.; it “did not contain any reference to where [M.F.] was or
what she was doing.”
    ¶13 After the in camera review of the cell-phone evidence, the
district court denied Newton’s motion for a new trial. It
concluded that Newton’s ineffective-assistance-of-counsel claim

__________________________________________________________
   6 Newton’s counsel mentioned to the prosecution before trial
that he would like to know what was on the cell phone. The State
responded that it did not have “the ability to grant access to the
phone.” Counsel did not respond by moving to have the cell
phone examined. The State did not examine the cell phone either.
The prosecutor later testified that he “had no idea what was on
the phone at all, one way or the other” and that he “had no reason
to believe there was anything relevant on the phone.”


                                   5
                          STATE v. NEWTON
                        Opinion of the Court

failed because the jury instruction correctly required mens rea as
to both the act of sexual intercourse and M.F.’s nonconsent. The
district court likewise rejected Newton’s Brady claim, determining
that “[t]he evidence found on [M.F.]’s phone post-trial was
unlikely to have affected the verdict.” That was because, upon
learning of the contact entry that took place at the Subway, the
jury could have concluded that M.F. “had no bias” against
Newton before the rape and because “[t]he [other] information
found on the phone also corroborated [her] testimony that friends
were trying to reach [M.F.] for hours without success.”
   ¶14 Newton appealed. He raised several issues, including his
arguments about the rape jury instruction and the alleged Brady
violation. The court of appeals affirmed. State v. Newton, 2018 UT
App 194, ¶ 38, 437 P.3d 429.
  ¶15 Newton filed a petition for certiorari, which we granted.
We have jurisdiction under Utah Code section 78A-3-102(3)(a).
                    STANDARD OF REVIEW
    ¶16 “On certiorari, we review the court of appeals’ decision
for correctness.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 32, 428
P.3d 1038 (citation omitted) (internal quotation marks omitted).
The issues of ineffective assistance of counsel and due process are
both mixed questions of law and fact. State v. Mohamud, 2017 UT
23, ¶ 10, 395 P.3d 133; Jacobs v. State, 2001 UT 17, ¶ 20, 20 P.3d 382.
We review the legal questions involved for correctness and the
factual findings for clear error. Mohamud, 2017 UT 23, ¶ 10.
                             ANALYSIS
    ¶17 We granted certiorari as to whether the court of appeals
erred in holding (1) that the district court had not erroneously
instructed the jury on the elements of rape and (2) that the State
did not violate the disclosure requirements of Brady v. Maryland,
373 U.S. 83, 87 (1963). 7
__________________________________________________________
   7  Newton also argues on appeal that trial counsel was
ineffective in failing “to investigate and present exculpatory
evidence.” The court of appeals did not address this claim because
Newton did not address the district court’s decision in his
appellate briefs. State v. Newton, 2018 UT App 194, ¶ 20, 437 P.3d
429. Since we did not grant certiorari as to this issue, we do not
address it either.


                                    6
                         Cite at: 2020 UT 24
                       Opinion of the Court

   ¶18 We conclude that Newton’s trial counsel was not
ineffective in failing to object to the jury instruction. We also
conclude that the State did not violate Brady’s disclosure
requirements.
                I. NEWTON’S CLAIM FOR
       INEFFECTIVE ASSISTANCE OF COUNSEL FAILS
    ¶19 Newton asserts an ineffective-assistance-of-counsel claim
under Strickland v. Washington, 466 U.S. 668 (1984). 8 He argues
specifically that his trial counsel was ineffective by not objecting
to the following jury instruction: “‘Rape’ as defined in the law
means the actor knowingly, intentionally, or recklessly has sexual
intercourse with another without that person’s consent.”
   ¶20 A claim for ineffective assistance of counsel requires
Newton to show “(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, 466 U.S. at 687.
   ¶21 We first explain how the jury instruction was arguably
ambiguous, without reaching the question of whether Newton’s
counsel was objectively deficient. And then we explain that, even

__________________________________________________________
   8 Newton argues that this court should also review the rape
jury instruction for plain error. The court of appeals reviewed this
argument and held that, because the district court did not err in
giving the instruction, there was no plain error. Newton, 2018 UT
App 194, ¶ 17 n.6. Without opining on whether the court of
appeals was correct in holding there was no error, we reject
Newton’s plain-error argument because “[p]roving plain error . . .
requires proving that any errors by the trial court . . . prejudiced
the defendant.” State v. McNeil, 2016 UT 3, ¶ 25, 365 P.3d 699
(footnote omitted). This prejudice test is “the same whether under
the claim of ineffective assistance or plain error.” State v. Beverly,
2018 UT 60, ¶ 37, 435 P.3d 160 (citation omitted). And we hold
below in our ineffective-assistance-of-counsel analysis that
Newton was not prejudiced by any alleged error in the rape jury
instruction. See infra ¶¶ 30–36. His plain-error argument
consequently fails.




                                    7
                         STATE v. NEWTON
                       Opinion of the Court

if Newton could show that counsel was objectively deficient,
Newton cannot show that he was prejudiced by it. For that reason,
his trial counsel was not ineffective.
           A. We Do Not Opine on Whether Trial Counsel’s
                    Performance Was Deficient
    ¶22 Newton argues that his trial counsel was objectively
deficient by virtue of not objecting to the rape jury instruction. By
failing to object, contends Newton, counsel did not make sure that
the jury was “clearly and accurately instructed” about consent.
And “no reasonable lawyer would have found an advantage in
understating the mens rea requirement as applied to the victim’s
nonconsent.” State v. Barela, 2015 UT 22, ¶ 27, 349 P.3d 676.
Ultimately, we do not reach this issue. Although the jury
instruction could have been clearer, Newton’s ineffective-
assistance-of-counsel claim fails for lack of prejudice.
    ¶23 To establish deficient performance, Newton must show
that his counsel’s “representation fell below an objective standard
of reasonableness.” Strickland, 466 U.S. at 688.
    ¶24 The court of appeals held that Newton’s claim for
ineffective assistance of counsel failed because Newton did not
show that trial counsel performed deficiently. State v. Newton,
2018 UT App 194, ¶ 29, 437 P.3d 429. Specifically, Newton did not
“demonstrate that counsel’s objection to the rape instruction
would not have been futile.” Id. ¶ 23; see State v. Kelley, 2000 UT
41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not
constitute ineffective assistance of counsel.”). In coming to that
conclusion, the court of appeals examined two Utah cases about
jury instructions for rape: Barela, 2015 UT 22, and State v. Marchet,
2009 UT App 262, 219 P.3d 75. Newton, 2018 UT App 194, ¶¶ 24–
29. Because these cases are relevant to our analysis here, we set
out their pertinent facts and holdings.
    ¶25 The court of appeals held in Marchet that the rape
instruction “accurately identified each element of the crime of
rape and correctly stated the applicable mental state.” 2009 UT
App 262, ¶ 22. The instruction in that case required the jury to
find the defendant guilty of rape if it found the following:
   1. “That [the defendant] had sexual intercourse with [the
      victim];”
   2. “That said act of intercourse was without the consent of
      [the victim];” and


                                   8
                        Cite at: 2020 UT 24
                       Opinion of the Court

   3. “That the defendant acted intentionally or knowingly or
      recklessly.”
Id. ¶ 21. This instruction, said the court of appeals, was an
“accurate statement of the law” because it required a finding that
the defendant “intentionally, knowingly, or recklessly had
nonconsensual sexual intercourse with” the victim. Id. ¶ 22.
    ¶26 We fielded a similar ineffective-assistance-of-counsel
claim in Barela and held—in contrast to Marchet—that trial counsel
was deficient in failing to object to the jury instruction for rape.
2015 UT 22, ¶ 2. The instruction there required the jury to convict
the defendant of rape if it found the following:
   1. “The defendant”
   2. “Intentionally or knowingly;”
   3. “Had sexual intercourse with [the alleged victim];” and
   4. “That said act of intercourse was without the consent of
      [the alleged victim].”
Id. ¶ 13. This instruction was erroneous, we explained, because it
“implied that the mens rea requirement (‘intentionally or
knowingly’) applied only to the act of sexual intercourse, and not
to [the alleged victim’s] nonconsent” and “conveyed that idea by
coupling the mens rea requirement directly with the element of
sexual intercourse, and by articulating the element of [the alleged
victim’s] nonconsent without any apparent counterpart
requirement of mens rea.” Id. ¶ 26 (footnote omitted). We
distinguished the instruction from the one in Marchet without
opining on whether the Marchet instruction was correct: “[T]he
instruction in [Marchet] differed from the one here in a crucial
respect: the mens rea element was listed last, after both the ‘sexual
intercourse’ and ‘nonconsent’ elements. That instruction at least
arguably suggests that the mens rea element applies to all of the
above-listed elements.” Id. ¶ 26 n.3 (citation omitted). Then we
held that “reasonable trial counsel should have objected to” the
Barela instruction, since “no reasonable lawyer would have found
an advantage in understating the mens rea requirement as applied
to the victim’s nonconsent.” Id. ¶ 27.
   ¶27 The court of appeals in Newton’s case ultimately
concluded that Newton’s trial counsel was not deficient because
an objection would have been futile under Barela and Marchet.
Newton, 2018 UT App 194, ¶¶ 28–29. Unlike in Barela, said the
court of appeals, the rape instruction here “did not separate the

                                   9
                         STATE v. NEWTON
                       Opinion of the Court

mens rea from the act or the element of non-consent.” Id. ¶ 26.
And the court of appeals believed that Newton’s instruction was
even better than the Marchet instruction because, “[r]ather than
providing the culpable mental state as a catch-all at the end of the
instruction, Newton’s instruction seamlessly provided that the
applicable mens rea applied to both the act of sexual intercourse
and Victim’s non-consent.” Id. ¶ 28.
    ¶28 Because Newton’s claim for ineffective assistance fails for
lack of prejudice, infra ¶¶ 30–36, we need not decide whether the
court of appeals was correct in holding that an objection to the
jury instruction would have been futile. We write only to say that
the jury instruction is more ambiguous than acknowledged by the
court of appeals. A correct jury instruction on rape should require
a finding “not only that a defendant ‘knowingly, intentionally, or
recklessly had sexual intercourse,’ but also that he had the
requisite mens rea as to the victim’s nonconsent.” Barela, 2015 UT
22, ¶ 26 (citation omitted). But using a purely grammatical
interpretation, the mental state in Newton’s jury instruction could
arguably be read as applying to either the act of sexual intercourse
or the victim’s nonconsent, or both. On that basis, the jury
perhaps could have interpreted the instruction to mean that there
was no mens rea requirement as to the victim’s nonconsent. That
being said, we do not opine on whether trial counsel was deficient
in failing to object to the instruction, since Newton was not
prejudiced by any potential misstep. 9

__________________________________________________________
   9 There is a strong argument that a reasonable attorney could
have concluded that the instruction was correct under controlling
precedent. At the time of trial, Newton’s counsel did not have the
benefit of Barela, since that opinion had not been issued yet. Trial
counsel thus would have been able to rely on Marchet only—and
not Barela—for guidance. See Menzies v. State, 2014 UT 40, ¶ 76, 344
P.3d 581 (“Importantly, in assessing whether counsel’s
performance was deficient, we must look at the facts and law
available to counsel at the time of the representation.”). And this
court has said that the Marchet “instruction at least arguably
suggests that the mens rea element applies to all of the . . .
elements [of rape].” Barela, 2015 UT 22, ¶ 26 n.3. Because the
instruction here was somewhat similar to the instruction upheld
in Marchet, there is a strong argument that a reasonable attorney
at that time would not have objected to it. But we ultimately need
                                                    (continued . . .)
                                  10
                         Cite at: 2020 UT 24
                        Opinion of the Court

   ¶29 Going forward, however, district courts should ensure
that jury instructions for rape clearly require a finding that a
defendant “had the requisite mens rea as to the victim’s
nonconsent.” Id. They can accomplish that task simply by using
Model Utah Jury Instruction 1605:
      (DEFENDANT’S NAME) is charged [in Count__]
      with committing Rape [on or about DATE]. You
      cannot convict [him][her] of this offense unless,
      based on the evidence, you find beyond a reasonable
      doubt each of the following elements:
          1. (DEFENDANT’S NAME);
          2. Intentionally, knowingly, or recklessly had
             sexual intercourse with (VICTIM’S NAME);
          3. Without (VICTIM’S NAME)’s consent; and
          4. (DEFENDANT’S NAME) acted with intent,
             knowledge or recklessness that (VICTIM’S
             NAME) did not consent.
MODEL UTAH JURY INSTRS. 2d CR1605 (Advisory Comm. On
Criminal            Jury           Instructions          2015),
https://www.utcourts.gov/resources/muji/inc_list.asp?action=s
howRule&id=44#1605. There is no wiggle room in that instruction
as to whether the mens rea requirement applies to the act of
sexual intercourse, the victim’s nonconsent, or both. We thus
endorse its use.
                  B. Newton Was Not Prejudiced by
      Counsel’s Failure to Object to the Jury Instruction for Rape
    ¶30 Newton claims that he was prejudiced by counsel’s
failure to object to the rape jury instruction, arguing that because
Newton admitted to having sexual intercourse with M.F.,
“consent was the only element at issue.” And, he urges, “[g]iven
the totality of the evidence . . . , a reasonable jury could have
concluded that the truth about the incident was somewhere in the
middle of Newton’s version and [M.F.]’s version.” We disagree.
The totality of the evidence—including Newton’s and M.F.’s
testimony and her extensive injuries—does not support a finding


not decide the issue because Newton’s ineffective-assistance-of-
counsel claim fails on the prejudice prong. See infra ¶¶ 30–36.


                                    11
                         STATE v. NEWTON
                       Opinion of the Court

that Newton was mistaken as to M.F.’s nonconsent. So even if
Newton’s counsel were deficient in failing to object to the jury
instruction, Newton has not shown that he was prejudiced by the
error.
    ¶31 Under the second prong of an ineffective-assistance-of
counsel-claim, “the defendant bears the burden of proving that
counsel’s errors actually had an adverse effect on the defense and
that there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different.” State v.
Beverly, 2018 UT 60, ¶ 30, 435 P.3d 160 (citation omitted). To show
a reasonable probability, the defendant must show “a probability
sufficient to undermine confidence in the outcome.” Id. (citation
omitted). When a court considers whether the defendant has
cleared this high hurdle, it “must consider the totality of the
evidence before the . . . jury.” Id. (citation omitted). And thus, “a
verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors than one with
overwhelming record support.” Id. (citation omitted).
    ¶32 We held in Barela that the defendant was prejudiced
when trial counsel failed to object to a jury instruction misstating
the requirement of mens rea as applied to the elements of rape.
2015 UT 22, ¶ 2. In Barela, the defendant, a massage therapist, had
sex with his client at a massage studio. Id. ¶ 4. He said that the
woman initiated the conduct and that it was consensual. Id. ¶ 5. In
contrast, she said the defendant unexpectedly began rubbing her
inner thigh, pulled her to the end of the massage table, dropped
his pants, and began having vaginal sex with her. Id. ¶ 6. In
response she neither physically resisted nor verbally told the
defendant “no.” Id. ¶ 7. She instead said and did nothing; she
“just froze.” Id. We held that the defendant was prejudiced by
counsel’s failure to object to the jury instruction because, if the
instruction “had clearly and correctly required the jury to find
mens rea as to [the alleged victim’s] nonconsent, the jury could
reasonably have acquitted [the defendant] on the basis of a
determination that he mistook [the alleged victim’s] reaction for
consent.” Id. ¶ 28. And thus, “a reasonable jury . . . could have
acquitted [the defendant] if correctly instructed—on the basis of a




                                   12
                        Cite at: 2020 UT 24
                       Opinion of the Court

determination that [he] had neither knowledge nor recklessness as
to [the alleged victim’s] nonconsent.” Id. ¶ 32. 10
    ¶33 Unlike the defendant in Barela, Newton has not shown
that, but for his counsel’s errors, the jury could have reasonably
acquitted him on the basis of a determination that he mistook
M.F.’s reaction for consent. To be sure, the record contains two
competing versions of what happened on the morning of the
assault. But neither supports a finding that Newton mistook
M.F.’s actions for consent. That is because, in Newton’s version,
M.F. unambiguously consented to—and even initiated—sexual
intercourse. In M.F.’s version, however, M.F. unambiguously
resisted by “fighting back” and “screaming and crying and
pushing [Newton].” In her version, Newton even choked her and
threatened her with a gun to force her to have sex with him.
   ¶34 Neither version gave the jury evidence from which it
could reasonably conclude that M.F. did not consent but that
Newton mistook her reaction as consent. Unlike in Barela, there is
no evidence that M.F., for example, “froze” during the encounter,
neither physically resisting Newton nor verbally telling him “no.”
See id. ¶ 7. And Newton points to no other evidence that he
mistook M.F.’s actions for consent. Indeed, the evidence shows
only that she either fought back or initiated the sex. As a result,
the jury could not “easily have thought that the truth fell
somewhere in between the two accounts,” id. ¶ 30, as Newton
argues. So in convicting Newton, the jury must have found that
M.F. did not consent and, by extension, must have concluded that
Newton “intentionally, knowingly, or recklessly had
nonconsensual sexual intercourse” with M.F. See Marchet, 2009 UT
App 262, ¶ 22 (emphasis added).
    ¶35 Besides there being no testimony as to ambiguous
consent, M.F.’s version was also corroborated by M.F.’s extensive
injuries. The record contains evidence that M.F. had been
strangled and evidence that M.F. had a genital injury that would

__________________________________________________________
   10 In finding prejudice in Barela, we relied on the fact that the
alleged victim “just froze,” and we distinguish Newton’s case, in
part, on that basis. But by so doing, we do not intend to endorse
the premise that when a victim responds to a sexual advance by
“freezing,” the defendant automatically has a viable defense to
rape (mistake as to the victim’s nonconsent).


                                  13
                         STATE v. NEWTON
                       Opinion of the Court

have been so painful that she would have stopped any consensual
sexual intercourse. Plus, she had multiple bruises on her legs and
arms. Newton’s evidence at trial did not account for those
injuries; 11 M.F.’s did. As a result, this evidence supports a finding
that Newton used force during the sexual intercourse and, in turn,
a finding that he knew that M.F. did not consent to the
intercourse.
    ¶36 In the end, even if the jury instruction were clearer as to
mens rea for nonconsent, a reasonable jury could not have
acquitted Newton based on “a determination that [he] had neither
knowledge nor recklessness as to [the alleged victim’s]
nonconsent.” Barela, 2015 UT 22, ¶ 32. Thus Newton has not
shown “a probability sufficient to undermine confidence in the
outcome,” Beverly, 2018 UT 60, ¶ 30, and his ineffective-assistance-
of-counsel claim fails for lack of prejudice.
              II. NEWTON’S BRADY CLAIM FAILS
   ¶37 Next, Newton argues that his convictions should be
reversed because the State violated the disclosure requirements of
Brady v. Maryland, 373 U.S. 83, 87 (1963), by refusing to conduct a
forensic examination of M.F.’s cell phone. To establish a Brady
violation, a defendant must show (1) that the prosecution
suppressed evidence, (2) that the evidence is favorable to the
accused, and (3) that the evidence is material to either guilt or to
punishment. Id. Because Newton’s Brady claim fails under the first


__________________________________________________________
   11 Newton argues in his reply brief that the sexual assault
nurse examiner’s testimony about the bruises is undermined by a
private investigator’s posttrial testimony that he interviewed
people who told him that M.F. had sex with her boyfriend “out in
the wilderness in the forest in some area” the day before the
sexual assault. Newton argues that the sexual assault nurse
examiner did not know about that alleged event and so her
testimony about the bruises was ill informed. This alleged
incident, however, was not in the trial testimony, and we do not
consider it on appeal for the purposes of prejudice. And even if
we were to consider it, it would not change the outcome of our
analysis: Newton points to no testimony—even posttrial
testimony—that M.F. sustained injuries during that alleged
incident in the forest.


                                   14
                         Cite at: 2020 UT 24
                       Opinion of the Court

and third elements, we affirm the court of appeals without
addressing the second element.
            A. The Prosecution Did Not Suppress Evidence
   ¶38 Newton argues that the prosecution had “a constitutional
obligation to seek out any evidence on [M.F.’s] phone, regardless
of whether it thought that the phone would contain anything of
value” because “[p]rosecutors have an affirmative duty to seek
out, analyze, i.e., look at the evidence solely within the hands of
the prosecution team.” The court of appeals rejected this
argument, holding that “the State did not commit a Brady
violation when it did not independently conduct a forensic
examination of [M.F.]’s cell phone.” State v. Newton, 2018 UT App
194, ¶ 34, 437 P.3d 429.
    ¶39 Under the first prong of the Brady analysis, a prosecutor
must “disclose known, favorable evidence rising to a material level
of importance.” Kyles v. Whitley, 514 U.S. 419, 438 (1995) (emphasis
added). This, in turn, requires a prosecutor to “learn of any
favorable evidence known to the others acting on the government’s
behalf in the case, including the police.” Id. at 437 (emphasis
added). 12 But a prosecutor generally has no duty “to search for
exculpatory evidence, conduct tests, or exhaustively pursue every

__________________________________________________________
   12We note that some federal cases at first blush seem to impose
a duty on a prosecutor to obtain “readily available” information
even when the prosecutor is unaware of the information. But a
deeper reading reveals that these cases all deal with the
prosecutor’s duty to get information from other government
actors or entities. See, e.g., United States v. Perdomo, 929 F.2d 967,
971 (3d Cir. 1991) (holding that prosecutor’s failure to check local
Virgin Islands records for the criminal background of a key
prosecution witness was a Brady violation because the information
was readily available); United States v. Auten, 632 F.2d 478, 481
(5th Cir. 1980) (holding that the government had knowledge for
purposes of Brady of the criminal record of a key witness when it
chose not to run an FBI or NCIC check on the witness and the
criminal record was readily available to it). They are not
applicable here, however, because this case is about the
prosecution’s duty to conduct tests on evidence—not its duty to
search for evidence known to other government actors such as
criminal records.


                                   15
                         STATE v. NEWTON
                       Opinion of the Court

angle on a case.” State v. Shaffer, 725 P.2d 1301, 1305–06 (Utah
1986) (citation omitted) (holding that the cremation of the victim’s
body before gunshot-residue tests were performed was not a
Brady violation when “evidence of gunshot residue offered a
‘mere possibility’ of evidence favorable to the defendant”). 13 Such
duty arises under Brady only when “the exculpatory value of
untested . . . evidence” is “apparent.” State v. Bakalov, 1999 UT 45,
¶¶ 49–50, 979 P.2d 799 (holding that there was no Brady violation
when the State did not test a semen sample); see also Arizona v.
Youngblood, 488 U.S. 51, 56–58 (1988) (holding that the police’s
failure to perform tests on semen samples did not violate the Due
Process Clause, absent bad faith); People ex rel. Gallagher v. Dist.
Court In & For Arapahoe Cty., 656 P.2d 1287, 1291–92 (Colo. 1983)
(holding that the police’s failure to conduct a trace-metal test on
victim’s hands before burial was a suppression of evidence when
it was “implausible” that the “test had no value”).
    ¶40 The State had no duty under Brady to conduct a forensic
examination of M.F.’s cell phone. Nothing indicates that the
prosecution or another government actor knew of any favorable,
material evidence that would be revealed by conducting a forensic
examination of the cell phone. Instead, “this evidence was simply
an avenue of investigation that might have led in any number of
directions.” Youngblood, 488 U.S. at 56 n.*. Indeed, the prosecutor
testified at a posttrial hearing that he “had no idea what was on
the phone at all, one way or the other,” and that he “had no
reason to believe there was anything relevant on the phone.”
Although Newton has made the bald assertion that “the
prosecutor intentionally stuck his head in the sand,” he has not
provided evidence that the exculpatory value of testing the cell
__________________________________________________________
   13 See also Arizona v. Youngblood, 488 U.S. 51, 59 (1988) (“[T]he
police do not have a constitutional duty to perform any particular
tests.”); State v. Rhodes, 543 P.2d 1129, 1133 (Ariz. 1975) (holding
that failure to take fingerprints from certain areas of or items in a
crime scene was not a Brady violation); People ex rel. Gallagher v.
Dist. Court In & For Arapahoe Cty., 656 P.2d 1287, 1291 (Colo. 1983)
(“[P]olice investigators have no general duty to search out
possible exculpatory evidence or to perform tests to determine
marginally relevant facts that, with the benefit of hindsight, a
defendant might speculate would have been of possible value to
support his defense against a criminal charge.”).


                                   16
                         Cite at: 2020 UT 24
                        Opinion of the Court

phone—if there was any—was apparent. Thus the State did not
violate Brady when it did not complete a forensic examination of
the cell phone.
           B. Evidence on the Cell Phone Was Not Material
   ¶41 Newton also argues that the evidence discovered through
the posttrial forensic examination of the phone was material. We
disagree. And so, in addition to failing on the suppression prong,
Newton’s Brady claim independently fails on the materiality
prong.
    ¶42 Evidence is material for the purposes of Brady “only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “A
‘reasonable probability’ of a different result is one in which the
suppressed evidence undermines confidence in the outcome of
the trial.” Turner v. United States, 137 S. Ct. 1885, 1893 (2017)
(citation omitted) (internal quotation marks omitted). And
therefore “[t]he possibility that [the evidence] could have
exculpated [the defendant] if . . . tested is not enough to satisfy the
standard of constitutional materiality . . . . ” Youngblood, 488 U.S.
at 56 n.*. We determine the materiality by evaluating “the
withheld evidence in the context of the entire record.” Turner, 137
S. Ct. at 1893 (citation omitted) (internal quotation marks
omitted).
    ¶43 Newton makes a single argument about the cell-phone
evidence’s materiality. He says that the fact “that M.F. entered
Newton as a contact in her phone the morning of the alleged
incident” would have contradicted “M.F.’s testimony that Newton
was ‘weird and creepy,’ and that she never flirted with him, told
him she hated him, and had a boyfriend of her own.” The
evidence of the contact entry, contends Newton, “would have
allowed counsel to thoroughly cross-examine M.F. as to why,
where she had a boyfriend, she would want Newton’s contact
information.”
    ¶44 The court of appeals held that the district court did not
err when it determined that the evidence collected from M.F.’s cell
phone was not material. Newton, 2018 UT App 194, ¶¶ 35–37. In
so doing, it implicitly endorsed the district court’s view that the
evidence “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.” Id. ¶ 36. It also noted that M.F. “testified on direct
                                    17
                        STATE v. NEWTON
                     Petersen, J., concurring

and cross-examination that after telling Newton that she thought
he was ‘weird and creepy,’ ‘he was nice after that.’” Id. ¶ 37. And
Newton did not “explain how entering his phone number before
the rape would have ‘provided circumstantial evidence of
consent.’” Id.
    ¶45 We agree with the court of appeals. Newton has failed to
show any likelihood that a pretrial examination of the cell phone
would have affected the outcome of his trial. Thus the evidence
learned from the forensic examination of the cell phone was not
material. It was consistent with M.F.’s testimony that she was
friendly with Newton before he attacked her. As the court of
appeals acknowledged, even though M.F. described her initial
impression of Newton as “weird and creepy,” she also said that
“he was nice after that.” Id. And as the State notes, the jury also
heard other evidence of M.F.’s attitude toward Newton—i.e., her
acceptance of his invitation to ride alone with him at 3:00 a.m. to
Subway and video footage showing her with Newton and
seemingly happy at Subway. Neither did the evidence of the
contact entry impeach M.F.’s testimony that she did not flirt with
Newton and that she had a boyfriend. The State summed it up
well: “One may note another’s contact information for any
number of reasons. The significance of the evidence was therefore
ambiguous at best.”
    ¶46 In the end, the cell-phone evidence “adds nothing to
[Newton]’s case and would not have raised a reasonable doubt as
to his guilt.” State v. Shabata, 678 P.2d 785, 788 (Utah 1984). The
cell-phone evidence was thus not material, and the State did not
violate Brady by not conducting a forensic examination on the cell
phone.
                         CONCLUSION
   ¶47 Newton was not prejudiced by the rape jury instruction.
And the State had no duty under Brady to conduct a forensic
examination on the phone. We thus affirm the decision of the
court of appeals.

   JUSTICE PETERSEN, concurring:
   ¶48 In this opinion, we endorse the Model Utah Jury
Instruction for rape. MODEL UTAH JURY INSTRS. 2d CR1605
(Advisory Comm. On Criminal Jury Instructions 2015),
https://www.utcourts.gov/resources/muji/. I agree with this
endorsement, based on the relevant statutes. But I write to flag a

                                   18
                           Cite at: 2020 UT 24
                        Petersen, J., concurring

problem with the fourth element of the instruction, which relates
to the defendant’s mens rea as to the victim’s nonconsent. The
Model Utah Jury Instruction committee appears also to have
noted this issue.
    ¶49 Model Utah Jury Instruction 1605 provides a clear
instruction for the offense of rape. It states:
       (DEFENDANT’S NAME) is charged [in Count__]
       with committing Rape [on or about DATE]. You
       cannot convict [him][her] of this offense unless,
       based on the evidence, you find beyond a reasonable
       doubt each of the following elements:
           1. (DEFENDANT’S NAME);
           2. Intentionally, knowingly, or recklessly had
              sexual intercourse with (VICTIM’S NAME);
           3. Without (VICTIM’S NAME)’s consent; and
           4. (DEFENDANT’S NAME) acted with intent,
              knowledge or recklessness that (VICTIM’S
              NAME) did not consent.
   Id.; see also supra ¶ 29.
    ¶50 The fourth element of the instruction relates to the
defendant’s mental state as to the victim’s nonconsent—in other
words, the defendant’s awareness that the victim did not consent
to the intercourse. It requires the prosecution to prove that the
defendant acted with “intent, knowledge or recklessness that [the
victim] did not consent.” MODEL UTAH JURY INSTRS. 2d CR1605
(Advisory Comm. On Criminal Jury Instructions 2015),
https://www.utcourts.gov/resources/muji/ (emphasis added).
    ¶51 This is correct under the applicable statutes. The rape
statute does not specify a particular mental state for the offense of
rape in general, or for the defendant’s mental state as to the
victim’s nonconsent in particular. See UTAH CODE § 76-5-402. In
such a situation, Utah Code section 76-2-102 directs that “when
the definition of the offense does not specify a culpable mental
state and the offense does not involve strict liability,” then “intent,
knowledge, or recklessness shall suffice to establish criminal
responsibility.” (Emphasis added.) We have concluded that this
statute requires us to include intent, knowledge, or recklessness as
the applicable mental states for the victim’s nonconsent.
    ¶52 But while “knowledge” and “recklessness” make sense in
this context, “intent” does not. Knowledge and recklessness can
                                     19
                          STATE v. NEWTON
                       Petersen, J., concurring

relate to a person’s awareness of the circumstances surrounding
the person’s conduct. Here, the relevant surrounding
circumstance is that the person with whom the defendant is
having intercourse does not in fact consent to the intercourse. The
legislature has explained that a person engages in conduct
“[k]nowingly, or with knowledge, with respect . . . to
circumstances surrounding his conduct when he is aware of the . . .
existing circumstances.” UTAH CODE § 76-2-103(2) (emphasis
added). And a person engages in conduct “[r]ecklessly with
respect to circumstances surrounding his conduct . . . when he is
aware of but consciously disregards a substantial and unjustifiable risk
that the circumstances exist.” Id. § 76-2-103(3) (emphasis added).
   ¶53 Knowledge and recklessness are compatible with the
fourth element of the rape jury instruction. The prosecution must
prove either that: (1) the defendant knew that the victim did not
consent—i.e., the defendant was aware that the victim did not
consent; or (2) the defendant was reckless as to whether the victim
did not consent—i.e., the defendant was aware of but consciously
disregarded a substantial and unjustifiable risk that the victim did
not consent.
    ¶54 In contrast, the meaning of “intent” does not correspond
to a person’s awareness of a surrounding circumstance. Rather, the
legislature has explained that a person engages in conduct
“[i]ntentionally, or with intent . . . with respect to the nature of his
conduct or to a result of his conduct, when it is his conscious
objective or desire to engage in the conduct or cause the result.”
Id. § 76-2-103(1).
    ¶55 While a person may intend to engage in nonconsensual
intercourse by, for example, rendering another person
unconscious and then having sex with that person, this is not a
substitute for the requisite mens rea for the victim’s nonconsent.
The prosecution must prove that the victim did not, in fact,
consent (element three). Then, element four requires the
prosecution to prove that the defendant was aware that the victim
did not actually consent. A defendant’s intent for the victim to be
unconscious and nonconsenting is substantively different than his
awareness of the actual fact that the person with whom he had
intercourse did not consent to it. Certainly, evidence that a
defendant intentionally drugged a victim into unconsciousness
would be relevant to prove that the defendant was aware the
victim was not consenting during intercourse. But the two
concepts are legally distinct. And element four requires proof of

                                    20
                        Cite at: 2020 UT 24
                     Petersen, J., concurring

the latter concept. Accordingly, the mens rea for the victim’s
nonconsent in element four should be knowledge or recklessness,
but not intent.
    ¶56 The Model Utah Jury Instruction committee seems to
have also made this observation. It has commented that
“[a]lthough the committee believes that the applicable mens rea as
to element 4 would be knowledge or recklessness, it has included
intent based on the Utah Supreme Court’s opinion in State v.
Barela, 2015 UT 22.” MODEL UTAH JURY INSTRS. 2d CR1605
committee notes (Advisory Comm. On Criminal Jury Instructions
2015), https://www.utcourts.gov/resources/muji/.
   ¶57 I agree with the committee that “intent” is incompatible
with the mens rea for the victim’s nonconsent. However, I concur
with the majority opinion on this point because I conclude that
Utah Code section 76-2-103(2) does not give us the freedom to
exclude “intent” of our own accord in element four. I write
separately to raise this issue, however, for possible refinement by
the legislature if it so chooses.




                                  21
