State v. Newberry

Summary

The Utah Court of Appeals affirmed Robert Gilham Newberry’s conviction for unlawful sexual activity with a minor. The court rejected his challenges to the admission of other-acts evidence under Utah Rules of Evidence 404(b) and 403 and his ineffective-assistance claims concerning unobjected-to testimony and testimony about nude Snapchat photographs. The court also concluded that the cumulative-error doctrine did not warrant reversal.

Holdings

1. Evidence of uncharged but inextricably intertwined sexual conduct against the same child victim is admissible as intrinsic evidence when it shows how the defendant groomed the victim and bears directly on the charged sexual offense; such evidence is not subject to Rule 404(b) because it is not extrinsic 'other' acts evidence.
2. Counsel did not perform deficiently by failing to object to testimony about additional uncharged sexual conduct because an objection reasonably could have been viewed as futile in light of the district court's admissibility ruling and the governing Utah law.
3. Counsel did not render ineffective assistance by eliciting testimony about the exchange of nude photographs because the questioning was a deliberate and reasonably supportable trial strategy aimed at undermining Becca's credibility and highlighting the lack of corroborating phone evidence.
4. The cumulative-error doctrine did not warrant reversal because the court identified no prejudicial error and, at most, one presumed but nonprejudicial error.

Questions Presented

1. Whether the district court erred by admitting evidence of Newberry's uncharged masturbation and touching incidents under Utah Rules of Evidence 404(b) and 403.
2. Whether trial counsel rendered ineffective assistance by failing to object to testimony about additional uncharged sexual conduct.
3. Whether trial counsel rendered ineffective assistance by eliciting testimony that Becca and Newberry exchanged nude photographs through Snapchat.
4. Whether cumulative error required reversal.

Disposition

affirmed