State v. Blackwing

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                       KAIN BLACKWING,
                          Appellant.

                            Opinion
                       No. 20170851-CA
                       Filed May 7, 2020

         Third District Court, West Jordan Department
               The Honorable Bruce C. Lubeck
                         No. 151401859

        Andrew G. Deiss, John Robinson Jr., and Corey D.
                Riley, Attorneys for Appellant
          Sean D. Reyes, and Kris C. Leonard, Attorneys
                           for Appellee

     JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
                        concurred.

APPLEBY, Judge:

¶1     Kain Blackwing was convicted of, among other things,
seven counts of rape. He appeals, contending there was
insufficient evidence to sustain his convictions on three of the
counts. He also claims the district court erred when it did not
grant a new trial after the jury was given allegedly prejudicial
evidence in its deliberations. Because we conclude the State did
not establish one of the rape offenses occurred in Utah, we
reverse and vacate that conviction but affirm Blackwing’s
remaining convictions.
                        State v. Blackwing


                        BACKGROUND 1

¶2     Seventeen-year-old T.S. began martial arts and survival
training in early October 2013 under the tutelage of Blackwing, a
man in his forties. Most of the training took place at Blackwing’s
house. The training began in a small group, but gradually it
became one-on-one and increased in frequency. As T.S. began
spending more time with Blackwing, he taught her about “Shen
living,” telling her that he was “a Shen lord” and that “Shen can
have multiple women.” In fact, Blackwing had two putative
wives, who called him “My Lord.” After a few months of
training, Blackwing told T.S. he knew she had feelings for him,
and he reciprocated those feelings. They kissed.

¶3     Approximately one week after the kiss, in March 2014,
T.S. moved into the house that Blackwing shared with his two
putative wives. T.S. was given an office room as a bedroom, but
on her first night living in the house, she stayed in Blackwing’s
bedroom and they had sexual intercourse for the first time. They
had intercourse in March at least three more times.

¶4     One day in April 2014, while T.S. was at school,
Blackwing called to tell her that the police raided his house and
to warn her that an officer was going to the school to talk to her.
Blackwing warned T.S. not to “betray” him and “reminded [her]
that there was nothing going on,” that they “weren’t doing
anything wrong,” and that she “had to watch what [she] said.”
The officer came to the school and T.S. agreed to follow him to
the Division of Child and Family Services (DCFS) for an


1. On appeal from a jury verdict, “we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly,” presenting “conflicting evidence only as necessary
to understand issues raised on appeal.” State v. Holgate, 

, 

 (quotation simplified).




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                         State v. Blackwing


interview. At DCFS, a detective asked T.S. if she and Blackwing
“were engaging in any sexual activity,” to which she responded,
“No.” Later that month, Blackwing took T.S. to Texas “to spend
more time with [her] as his new wife.”

¶5     Several months later, as part of an unrelated case, T.S.
revealed her relationship with Blackwing to law enforcement. As
a result, Blackwing was charged with, among other things, four
counts of rape (counts 1, 2, 3, and 4) alleged to have occurred
from March 9, 2014 through March 31, 2014 and three counts of
rape (counts 5, 6, and 7) alleged to have occurred from April 1,
2014 through May 13, 2014. The State’s theory was that T.S.,
because of her age and Blackwing’s position of special trust or
his enticement of her, was incapable of consenting to sexual
intercourse. 2

¶6     The case proceeded to a jury trial, and T.S. testified about
the sexual intercourse she and Blackwing had during the month
of March. T.S. then said she and Blackwing had intercourse
“[m]ore than one time” in April, but after “the DCFS scare,” they
“didn’t have sex . . . as much” and did not have intercourse in
May 2014 until she turned eighteen later that month. When
asked if she and Blackwing “ha[d] intercourse at any point after
the DCFS [scare],” T.S. responded, “In Texas.” The State


2. “An act of sexual intercourse [or] rape . . . is without consent
of the victim under . . . the following circumstances: . . . the
victim is younger than 18 years of age and at the time of the
offense the actor . . . occupied a position of special trust in
relation to the victim . . . ; [or] the victim is 14 years of age or
older, but younger than 18 years of age, and the actor is more
than three years older than the victim and entices or coerces the
victim to submit or participate . . . .” 

-
406(10)–(11) (LexisNexis 2013); see also 

 § 76-5-401.1(1)(c)
(defining “position of special trust”).




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                         State v. Blackwing


followed up by asking, “But after Texas, there was no
intercourse?” T.S. responded, “Not that I can recall, no.”

¶7     Among other exhibits, the State introduced audio of
telephone conversations between Blackwing and T.S. while
Blackwing was incarcerated. Any mention of Blackwing’s
incarceration was redacted from the audio.

¶8      After the State’s case-in-chief, Blackwing’s trial counsel
moved for a directed verdict, arguing the State did not present
sufficient evidence to show lack of consent. The district court
denied the motion. Blackwing did not put on a defense, and the
case was submitted to the jury. The compact disc containing
Blackwing’s jailhouse telephone calls was among the exhibits
sent with the jury for its deliberations.

¶9      The jury convicted Blackwing on all counts. Shortly after
trial, the prosecutor realized that the compact disc that was
given to the jury was labeled “Blackwing jail calls.” The
prosecutor brought this oversight to the attention of Blackwing’s
trial counsel, who, on October 3, 2017, moved the district court
for a new trial, arguing the label on the disc substantially
prejudiced Blackwing’s right to a fair trial. Before the district
court heard the motion, on October 16, 2017, Blackwing
appealed his convictions, and this court remanded the case to
the district court to rule on the motion for a new trial. After
briefing and oral argument, the district court denied the motion,
finding Blackwing was not deprived of his right to a fair trial
and, because the district court brought the label to the parties’
attention prior to trial and the defense did not object at that time,
any error was invited. The case is now before us on appeal.


            ISSUES AND STANDARDS OF REVIEW

¶10 Blackwing argues there was insufficient evidence that the
State had jurisdiction over the charged offenses in counts 5, 6,



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                         State v. Blackwing


and 7. Although Blackwing did not preserve this issue below,
“[c]riminal jurisdiction is a form of subject matter jurisdiction,”
and we “may dismiss a criminal charge for lack of criminal
jurisdiction at any time, regardless of whether the defendant
raised the issue before or during trial.” State v. Holm, 

, 

. 3 “Whether the district court had criminal
jurisdiction is a question of law, which we review for
correctness.” State v. Mills, 

, 

.

¶11 Blackwing also claims the district court erred when it
denied his motion for a new trial. When we have jurisdiction to
do so, we review a district court’s ruling on a motion for a new
trial for abuse of discretion. State v. Pinder, 

, 

.


                            ANALYSIS

            I. Jurisdiction Over the Charged Offenses

¶12 Blackwing argues there was insufficient evidence for the
jury to convict him of rape on counts 5, 6, and 7. Specifically, he
contends the district court did not have jurisdiction over the
charged offenses in those counts because the State did not
establish that the acts of sexual intercourse occurred in Utah
between April 1, 2014 and May 13, 2014. We conclude the State
failed to establish one of those offenses occurred in Utah during
this timeframe.

¶13 A person may be prosecuted for a crime in Utah if “the
offense is committed either wholly or partly within the state.”


3. Alternatively, Blackwing urges us to reach this issue through
the lens of an ineffective-assistance-of-counsel claim. Because we
resolve the matter based on jurisdiction, we do not address this
argument further.




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                        State v. Blackwing

(1)(a) (LexisNexis 2017); see also State
v. Mills, 

, 

. Although
jurisdiction is not technically an element of the crime, the State
must establish the existence of jurisdiction by a preponderance
of the evidence. 

(3); State v. Ireland,

, 

; see also Nevares v. M.L.S., 

, ¶ 32 n.4, 

 (“Jurisdiction is a matter that must be
proven by the prosecution under the Utah criminal code.”
(quotation simplified)). In other words, the State must have
established that it “[wa]s more likely than not” that Blackwing
and T.S. had sexual intercourse in Utah three times between
April 1, 2014 and May 13, 2014. See V.M. v. Division of Child
& Family Services, 

 (quotation simplified).

¶14 T.S. testified that she and Blackwing did not have sex at
all in May 2014 until she turned eighteen, so each rape charged
in counts 5, 6, and 7 must have occurred in April 2014. The
relevant evidence pertaining to these charges was T.S.’s
testimony that (1) she and Blackwing had sex “[m]ore than one
time” in April, (2) DCFS raided the house and questioned T.S.
sometime that month, (3) after the DCFS raid they had
intercourse only in Texas, and (4) after they returned to Utah
from Texas, she could not recall whether they had intercourse.
Although Blackwing contends this evidence is insufficient to
establish that any of the three rape charges from counts 5, 6, and
7 took place in Utah in the specified timeframe, other evidence
supports a reasonable inference that at least two instances of
sexual intercourse in April took place in Utah. Specifically, T.S.
testified that her Shen instruction continued through the month
of April and included “how to please [Blackwing] sexually,” that
one of the “thing[s] [Blackwing] like[d] the most [wa]s sex,” and
that the office room she was given as a bedroom was used as a
“cover” in case there were visitors to the house. Further, viewing
T.S.’s testimony in the order and context it was given, it could be
readily inferred that the April incidents of intercourse occurred
before the DCFS visit and the trip to Texas.



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                        State v. Blackwing


¶15 Although the State argues this is enough to create a
reasonable inference that three acts of sexual intercourse
occurred in Utah between April 1 and the time when DCFS
raided the house, we disagree. The above evidence reasonably
supports the conclusion that two instances of sexual intercourse
occurred in Utah in April 2014. The phrase “[m]ore than one
time,” to which T.S. testified, necessarily supports a reasonable
inference that there were at least two instances of sexual
intercourse in April, before the trip to Texas. But although
“[m]ore than one time” can certainly mean three, four, five, or
fifty, such a conclusion, without more specific evidence,
impermissibly “rest[s] on mere speculation.” See State v. Pullman,

, 

. In short, the State did not
establish that it was “more likely than not” that Blackwing and
T.S. engaged in sexual intercourse more than two times in Utah
between April 1 and May 13, 2014, see V.M., 

 (quotation simplified), and we must therefore vacate count
7 on jurisdictional grounds.

                    II. Motion for a New Trial

¶16 Blackwing next argues the district court erred when it
denied his motion for a new trial. But we do not have
jurisdiction over this claim. Blackwing filed the motion for a new
trial on October 3, 2017. And on October 16, 2017, while the
motion was pending, Blackwing filed a notice of appeal. This
court remanded the case for the district court to resolve the
pending motion for a new trial, which it resolved in November
2018. But Blackwing did not file a new notice of appeal or an
amended notice of appeal as required under the Utah Rules of
Appellate Procedure. See Utah R. App. P. 4(b)(2) (“A notice of
appeal filed after announcement or entry of judgment, but before
entry of an order disposing of [a motion for a new trial], shall be
treated as filed after entry of the order and on the day thereof,
except that such a notice of appeal is effective to appeal only
from the underlying judgment.”). “To appeal from a final order



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                         State v. Blackwing


disposing of” a motion for a new trial, “a party must file a notice
of appeal or an amended notice of appeal.” 

 (emphasis added).
Because Blackwing failed to comply with this requirement, we
lack jurisdiction over the issue and cannot reach it. See, e.g., State
v. Mackin, 

, ¶¶ 7–9, 

 (concluding
this court lacked jurisdiction when the defendant “did not file a
new or amended notice of appeal from the district court’s denial
of his new trial motion”). 4


                          CONCLUSION

¶17 We reverse and vacate Blackwing’s conviction of rape on
count 7 because the State did not establish that the sexual
intercourse occurred in Utah, thereby depriving it of jurisdiction.
And because we have no jurisdiction over Blackwing’s appeal of
the district court’s denial of his motion for a new trial, we do not
reach that issue.




4. Citing Kilpatrick v. Bullough Abatement, Inc., 

, 

, Blackwing argues that because the State has not been
prejudiced by this jurisdictional failure, we should decide this
argument on its merits. But Kilpatrick gives us no such authority.
Kilpatrick instructs us to liberally construe a notice of appeal
where it “sufficiently identifies the final judgment at issue and
the opposing party is not prejudiced.” Id. ¶ 14 (emphasis added)
(quotation simplified). It does not allow us to excuse a failure to
file a notice of appeal from a final order simply because
prejudice may be lacking.




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