State v. Wilder , 387 P.3d 512 ( 2016 )

2016 UT App 210THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
PERCY L. WILDER,
Appellant.
Opinion
No. 20140416-CA
Filed October 20, 2016
Second District Court, Ogden Department
The Honorable Mark R. DeCaria
No. 131900362
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
STEPHEN L. ROTH and SENIOR JUDGE RUSSELL W. BENCH
concurred. 1
ORME, Judge:
¶1 Defendant Percy L. Wilder appeals his convictions for
aggravated kidnapping and aggravated sexual assault, both first
degree felonies. Defendant challenges the sufficiency of the
evidence supporting his aggravated kidnapping conviction and
alleges that he received ineffective assistance of counsel when
his trial counsel failed to argue that the aggravated kidnapping
charge merged with the aggravated sexual assault charge.
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Wilder
He also claims that the trial court erred when it denied his
request for a post-trial evidentiary hearing to question an
allegedly biased juror. We affirm.
BACKGROUND 2
¶2 Defendant and the victim separately attended a party at
the home of a mutual acquaintance. Around 1:30 a.m.,
Defendant asked the victim if she would go outside to talk to
him. She told him no—multiple times. But eventually the victim
went out to her car to get her cellphone, and Defendant followed
her. Once outside, Defendant continued to ask the victim to talk,
but she declined, saying she was cold and needed to get back to
the party. Nonetheless, Defendant opened the driver-side door
of his car and asked the victim to sit down. Hoping he would
leave her alone if she spoke with him, the victim sat down on the
edge of the driver-side seat. Defendant then asked her to move
over, and when she did not, he sat down anyway. So she moved
into the passenger seat, opened the passenger-side door, and
hung one foot out the door.
¶3 While the victim’s leg was still outside the car, Defendant
started the car and began driving. Fearful that she would be run
over if she tried to escape, the victim remained in the car and
closed the door. She did, however, ask Defendant to stop.
Defendant told the victim that he was going to give a friend a
ride, but he did not pick up a friend. Instead—of all things—he
began repeatedly asking her for oral sex, a request that she
steadfastly refused.
2. “In reviewing a jury verdict, we view the evidence and all
reasonable inferences drawn therefrom in a light most favorable
to the verdict. We recite the facts accordingly.” State v. Hamilton,
827 P.2d 232, 233–34 (Utah 1992) (internal citations omitted).
20140416-CA 2 2016 UT App 210State v. Wilder
¶4 At around 2:00 a.m., after having driven a short distance,
Defendant parked in the back of an apartment complex parking
lot. There were no other people in the lot. Defendant then
demanded that the victim undress and give him oral sex.
Defendant became enraged when the victim refused, and he
threatened to “cut [her]” if she got out of the car. Defendant next
tried to put his hand up the victim’s shirt, but the victim pushed
him away. He reacted by reaching across her and biting her right
breast through her clothing.
¶5 To enhance her mobility, the victim removed her high-
heeled shoes. Defendant interpreted this, however, as her
beginning to undress, and he ordered her to proceed. When she
did not, he threatened to “gut [her] from head to toe” if she did
not immediately undress. Instead, the victim opened the car
door and jumped out. Defendant grabbed the back of her pants,
but she broke free of his grasp. The victim testified at trial that
she had been in Defendant’s parked car for approximately ten
minutes.
¶6 Free of Defendant, the victim ran into the apartment
complex, where she pounded on doors and screamed for help.
Defendant ran after her, and when he reached her, he grabbed
her by the hair and began dragging her back toward his car.
According to the victim’s estimate, he did this for about ten
seconds, and they traveled only about two steps. The victim then
was able to lock her legs and brace herself between the hallway
walls. In response, Defendant punched her in the face and then
released her. Defendant fled, and the victim sought help.
Residents heard the victim and came to her aid, and she called
911 and reported the incident. Following his apprehension, the
State charged Defendant with one count each of aggravated
kidnapping and aggravated sexual assault. Following a jury
trial, Defendant was convicted of both charges.
¶7 Sometime after trial but before sentencing, Defendant’s
daughter remembered that one of the jurors (Juror) had attended
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junior high school with her brothers, Defendant’s sons. Both
Defendant and the State interviewed Juror. Defendant moved
the trial court to arrest the verdict, asserting that Juror knew
Defendant’s children and was biased against him. 3 In this
motion, Defendant also alleged that Juror remained in the
courtroom for improper reasons after the jury had been
dismissed. The State countered that Juror remained in the
courtroom only to ask about his payment for jury service.
¶8 The State subsequently submitted its taped interview with
Juror as evidence that he was not biased. In the interview, Juror
admitted to the State’s investigator that he briefly attended
Defendant’s sons’ junior high school and that he knew one of the
sons in junior high, but Juror also said he had not remembered
the connection until after trial because he attended multiple
3. Defendant initially captioned his motion as a motion to arrest
the verdict. The State argued in its opposition brief that the court
should deny the motion because it presented new evidence,
which a rule 23 motion to arrest the verdict does not permit. See
Utah R. Crim. P. 23 (permitting the court “to arrest judgment if
the facts proved or admitted did not constitute a public
offense”). The State argued that such a motion typically is used
to challenge the sufficiency of the evidence at trial while a rule
24 motion for new trial is the proper way to challenge juror
misconduct. See id. R. 24(a) (permitting the court to “grant a new
trial in the interest of justice if there is any error or impropriety
which had a substantial adverse effect upon the rights of a
party”). In reply, Defendant asked the court to treat his motion
as one for a new trial. The record of the four hearings on the
motion does not show that the court directly addressed the issue,
but the court proceeded as if the motion were one for a new trial
and denied the motion for lack of evidence—not for procedural
reasons. Accordingly, we treat Defendant’s motion to arrest the
verdict as if it were a rule 24 motion for new trial.
20140416-CA 4 2016 UT App 210State v. Wilder
junior highs. He also claimed that he did not know Defendant’s
daughter and that he was unaware of any aspect of Defendant’s
circumstances prior to trial.
¶9 Although Defendant’s counsel had interviewed Juror,
Defendant proffered no evidence showing that Juror’s account,
as submitted by the State, was false or demonstrating Juror’s
bias. Instead, Defendant insisted that Juror had in fact attended
school with Defendant’s sons for three years, claiming that Juror
appeared in the school’s yearbook each of those years. 4 But
Defendant never presented the yearbooks as evidence. The court
decided that it would watch the State’s interview video and
make its decision. After a period of more than three months,
during which time the court held four hearings, the court denied
Defendant’s request for an evidentiary hearing, concluding that
there was insufficient information to warrant further inquiry.
¶10 After denying Defendant’s motion for a new trial, the
court sentenced Defendant to two sentences of fifteen years to
life in prison, to be served concurrently with one another but
consecutively to a sentence Defendant was already serving on an
unrelated conviction. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Defendant raises three issues on appeal. First, he asserts
that the trial court abused its discretion when it denied his
request for an evidentiary hearing in which Juror could be called
4. Even if Juror appeared in all three yearbooks, that would not
necessarily be inconsistent with his claim that he attended
multiple junior high schools. He might have enrolled during the
first year and departed during the third, for example, or he
might have divided all three school years between his parents’
households in varying school districts.
20140416-CA 5 2016 UT App 210State v. Wilder
to testify. We review the trial court’s denial of an evidentiary
hearing, and, therefore, of the motion for new trial, for an abuse
of discretion. See State v. Loose, 2000 UT 11, ¶ 16, 994 P.2d 1237.
“[L]egal determinations made by the trial court as a basis for its
denial of a new trial motion are reviewed for correctness.” Id. ¶ 8.
¶12 Second, Defendant argues that there was insufficient
evidence to convict him of aggravated kidnapping. “In
reviewing sufficiency of the evidence claims, we reverse a jury
verdict only when the evidence ‘is sufficiently inconclusive or
inherently improbable that reasonable minds must have
entertained a reasonable doubt.’ . . . We examine the evidence in
a light most favorable to the verdict.” State v. Boss, 2005 UT App
520, ¶ 9, 127 P.3d 1236 (quoting State v. Mead, 2001 UT 58, ¶ 65,
27 P.3d 1115). And if each element of the crime is supported by
at least some evidence, or reasonable inferences drawn from the
evidence, we inquire no further. Mead, 2001 UT 58, ¶ 67.
¶13 Third, Defendant contends that his trial counsel was
ineffective for failing to argue that the aggravated kidnapping
charge merged with the aggravated sexual assault charge. “An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162. A defendant who claims ineffective assistance of
counsel must show “that counsel’s performance was deficient”
and prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion by Denying
Defendant’s Motion for New Trial.
¶14 Defendant first argues that the trial court should have
granted him an evidentiary hearing to question Juror, who
20140416-CA 6 2016 UT App 210State v. Wilder
attended junior high with both of Defendant’s sons but did not
disclose that information during voir dire. 5 Defendant argues
that he was entitled to a trial by an impartial jury and that
because Juror could have been challenged for cause during voir
dire, the court or counsel should have more fully investigated
Juror’s familiarity with Defendant. He asserts that, because his
motion for a new trial alleged juror misconduct, the motion
should have triggered such an investigation, including “full
questioning by both parties” in an evidentiary hearing.
¶15 A motion for a new trial must “be accompanied by
affidavits or evidence of the essential facts in support of the
motion.” Utah R. Crim. P. 24(b). And a defendant seeking a new
trial because of alleged juror bias has the burden to prove actual,
not suppositional, bias. Turner v. University of Utah Hosps.
& Clinics, 2013 UT 52, ¶ 29, 310 P.3d 1212 (requiring the party
alleging juror bias “to demonstrate that . . . [the] juror was, in
fact, biased”). Assuming the defendant presents some evidence,
5. While not identified as a distinct issue in the briefs, at oral
argument there was some discussion of whether Defendant’s
trial counsel properly handled this issue. We are unwilling to
say it was ineffective assistance for trial counsel not to offer
evidence of Juror’s bias or to press more adamantly for an
evidentiary hearing because counsel may well have chosen to
forgo such measures, perhaps knowing that there was no
evidence of actual juror bias. See Strickland v. Washington, 466
U.S. 668, 687, 689 (1984) (“[A] court must indulge a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance[.]”). For instance, counsel
may have known that, if Juror were called, he would testify to
having no knowledge of Defendant or his history of
incarceration. In other words, counsel may have known
Defendant was better off rolling the dice of innuendo and
supposition rather than developing the actual facts about Juror.
20140416-CA 7 2016 UT App 210State v. Wilder
the trial court may choose to hold an evidentiary hearing before
ruling on the motion for new trial. See State v. Stidham, 2014 UT
App 32, ¶ 27, 320 P.3d 696. But where a defendant fails to
provide an affidavit or other evidence, the trial court has nothing
to evaluate in an evidentiary hearing. 6 Thus, the issue here is
whether Defendant presented sufficient evidence in his motion
for new trial to suggest that Juror was actually biased so as to
necessitate an evidentiary hearing. And assuming Defendant did
not establish the need for an evidentiary hearing, the next
question is whether a new trial was nonetheless merited given
Defendant’s claim about Juror’s familiarity with Defendant’s
family members. See State v. James, 819 P.2d 781, 793 (Utah 1991).
¶16 Defendant alleged in his new trial motion that Juror
attended school with his sons, that it was common knowledge at
the school that Defendant was in prison, that Juror knew
Defendant’s daughter, and that Juror was the only member of
the jury to linger in the courtroom after the jury was dismissed.
But Defendant provided no affidavits or other evidence to
support these allegations, even though he interviewed Juror,
possessed the yearbooks he claimed would show that Juror
6. Rule 24 of the Utah Rules of Criminal Procedure contemplates
that the evidence in support of a rule 24 motion may take time to
procure, so it allows defendants a reasonable time to investigate
and produce that evidence. See Utah R. Crim. P. 24(b). Defendant
does not claim that he was not given this time. Rather, he urged
the trial court to use its resources to question Juror when
Defendant’s trial counsel in fact interviewed Juror but did not
secure his affidavit. Although Juror was subpoenaed for a
hearing, when Juror did not appear and the trial court offered
instead to review the State’s taped interview, Defendant
eventually acquiesced and failed to present any of the evidence
he alleged would show inconsistencies in Juror’s testimony and
establish Juror’s bias.
20140416-CA 8 2016 UT App 210State v. Wilder
attended school with his sons for three years, and could,
presumably, have gotten sworn statements from his children
about their acquaintance with Juror and the basis for the claim
that their father’s imprisonment was a matter of common
knowledge at the school. Thus, we cannot conclude that the trial
court abused its considerable discretion in determining an
evidentiary hearing to evaluate new evidence was unnecessary,
when Defendant produced only innuendo and supposition
rather than actual evidence.
II. There Was Sufficient Evidence to Support Defendant’s
Aggravated Kidnapping Conviction.
¶17 Defendant next argues that there was insufficient
evidence to support his conviction for aggravated kidnapping.
At trial the State argued either of two episodes could constitute
an aggravated kidnapping: (1) when the car was parked in the
apartment complex parking lot and Defendant bit the victim or
(2) when Defendant pulled the victim by the hair inside the
apartment complex. Defendant contends that even if the jury
believed all of the evidence that the State offered regarding these
two episodes, neither constituted aggravated kidnapping.
Because the State focused its response on the incident inside the
apartment complex, we do the same.
¶18 To prove that an aggravated kidnapping occurred, the
State must demonstrate that either a kidnapping or an unlawful
detention occurred, in conjunction with aggravating
circumstances. Kidnapping is defined by Utah law, in relevant
part, as “intentionally or knowingly,” in violation of the law and
against the victim’s will, “detain[ing] or restrain[ing] the victim
for any substantial period of time” or “detain[ing] or
restrain[ing] the victim in circumstances exposing the victim to
risk of bodily injury.” Utah Code Ann. § 76-5-301 (LexisNexis
2012). An unlawful detention, on the other hand, requires only
that “the actor intentionally or knowingly, without authority of
law, and against the will of the victim, detains or restrains
20140416-CA 9 2016 UT App 210State v. Wilder
the victim.” Id. § 76-5-304(1) (emphasis added). Aggravated
kidnapping occurs when, during such a kidnapping or unlawful
detention, the suspect intentionally “facilitate[s] the commission,
[or] attempted commission, . . . of a felony; . . . hinder[s] or
delay[s] the discovery or reporting of a felony; . . . inflict[s]
bodily injury on or . . . terrorize[s] the victim or another; . . . or
. . . commit[s] a sexual offense.” Id. § 76-5-302(1)(b)(ii)–(iv), (vi).
¶19 Whether aggravating circumstances existed during the
episode in the apartment complex is not a close question. During
the detention, Defendant intentionally inflicted bodily injury on
the victim by punching her in the face while he was still holding
her by the hair. See id. § 76-1-601(3) (defining “[b]odily injury” as
“physical pain, illness, or any impairment of physical
condition”); State v. Finlayson (Finlayson II), 2014 UT App 282,
¶ 42, 362 P.3d 926 (relying on the victim’s testimony that the
defendant “hit and strangled her, . . . shoved her down the stairs,
and sat on her” as evidence that the defendant “act[ed] with the
intent to inflict bodily injury”). Further, Defendant does not
dispute that these aggravating circumstances occurred. Thus, if a
predicate kidnapping or unlawful detention occurred, the
requirements for an aggravated kidnapping were satisfied.
¶20 Although a closer question, a reasonable jury could also
have concluded that the episode in the hallway was an unlawful
detention and, in conjunction with the infliction of bodily injury,
an aggravated kidnapping. Defendant contends that the ten
seconds during which he pulled the victim by her hair was too
brief to satisfy the statute. But while the “kidnapping”
alternative under the aggravated kidnapping statute may
require “detain[ing] or restrain[ing] the victim for [a] substantial
period of time,” the “unlawful detention” alternative does not.
Compare Utah Code Ann. § 76-5-301(1)(a), with id. § 76-5-304(1).
Thus, provided that the victim was unlawfully detained or
restrained, the amount of time the victim was under Defendant’s
control is of no moment. See State v. Mecham, 2000 UT App 247,
¶ 31 n.10, 9 P.3d 777 (“[T]here is no ‘substantial period’
20140416-CA 10 2016 UT App 210State v. Wilder
requirement in Utah’s aggravated kidnaping statute, unlike
Utah’s simple kidnaping statute.”) (citation omitted). See also
Finlayson II, 2014 UT App 282, ¶ 38 (determining that the State
had no obligation “to show that [the defendant] detained [the
victim] for a substantial period of time” in order to prove
aggravated kidnapping). Rather, to demonstrate aggravated
kidnapping of the unlawful detention variant, the State must
show, in addition to one or more aggravating circumstances,
only that the defendant unlawfully detained or restrained the
victim and that he did so intentionally or knowingly.
¶21 Defendant contends that the statute requires something
“more active” than what occurred here and that the plain
meaning of “detains or restrains,” as used in the unlawful
detention statute and by reference in the aggravated kidnapping
statute, requires some exertion of control, such as imprisonment.
Merriam-Webster’s Dictionary 7 defines “detain” as follows: “to
officially prevent (someone) from leaving a place: to hold or
keep (someone) in a prison or other place” or “to restrain
especially from proceeding.” Detain, Merriam-Webster’s
Dictionary, http://www.merriam-webster.com/dictionary/detain
[https://perma.cc/A4VF-W8UN]. And it defines “restrain” as “to
prevent from doing, exhibiting, or expressing something” or “to
limit, restrict, or keep under control” or “to deprive of liberty.”
Restrain, Merriam-Webster’s Dictionary, http://www.merriam-
webster.com/dictionary/restrain [https://perma.cc/VY9W-KFQ3].
These definitions imply that “detains or restrains” refers to
restriction of the victim’s movement, but neither definition
requires, as Defendant asserts, complete confinement or
imprisonment. And when interpreting the aggravated
kidnapping statute in State v. Sanchez, 2015 UT App 27, 344 P.3d
191, we affirmed the use of a jury instruction defining “detain or
7. “A starting point for our assessment of ordinary meaning is
the dictionary.” State v. Bagnes, 2014 UT 4, ¶ 14, 322 P.3d 719.
20140416-CA 11 2016 UT App 210State v. Wilder
restrain” as to “keep from proceeding, delay, keep in custody,
confine, control, check, repress, limit, or restrict.” Id. ¶¶ 15, 23
(internal quotation marks omitted). In that case, the jury reached
a guilty verdict for aggravated kidnapping when defendant
dragged the victim fifty-eight feet down a hallway. Id. ¶¶ 2, 4.
¶22 Based on Sanchez and the plain meaning of “detains or
restrains,” the question before us is whether a reasonable jury
could have concluded that Defendant intentionally acted,
however briefly, to impair the victim’s ability to move freely.
Here, the victim attempted to escape from Defendant by running
down an apartment complex hallway and knocking on doors.
Like in Sanchez, Defendant overpowered the victim by
intentionally grabbing her hair as he tried to drag her down the
hallway. He stopped her in her tracks and pulled on her, causing
her to move backwards. Further, although he did not succeed in
dragging her all the way back to his car, a reasonable jury could
have inferred that his actions prevented her from escaping at that
time. The plain meaning of the detention statute encompasses
these events. See Finlayson II, 2014 UT App 282, ¶¶ 38–45
(concluding that the defendant’s efforts to prevent the victim
from escaping through either the front or back door and then
sitting on her constituted aggravating kidnapping when
committed “with intent to inflict bodily injury” and “with the
intent to hinder or delay the discovery or reporting of a felony”);
State v. Ellis, 2014 UT App 185, ¶ 10, 336 P.3d 26 (concluding that
the defendant detained the victim, even though she was allowed
to move about within the walls of her own home, because the
defendant did not allow the victim to move freely away from
him and used physical force to continue the confinement and
keep her from escaping). We are not convinced that “reasonable
minds must have entertained reasonable doubt” that Defendant
exercised the control necessary to constitute a detention for
purposes of the aggravated kidnapping statute. See State v.
Dunn, 850 P.2d 1201, 1212 (Utah 1993).
20140416-CA 12 2016 UT App 210State v. Wilder
III. Trial Counsel Was Not Ineffective for Failing to Move to
Merge Defendant’s Convictions.
¶23 Finally, Defendant contends that even if there was
sufficient evidence to support his aggravated kidnapping
conviction, his trial counsel was ineffective for failing to argue
that the two convictions should merge. To prove ineffective
assistance of counsel, Defendant must show that trial counsel’s
decision not to move for merger was objectively unreasonable,
and therefore deficient, and that the decision prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because we
hold that Defendant’s two convictions did not merge as a matter
of law, Defendant was not prejudiced by his counsel’s failure to
make the argument and, therefore, his counsel was not
ineffective. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546(“Failure to raise futile objections does not constitute ineffective
assistance of counsel.”).
¶24 Merger protects defendants from multiple punishments
for different but related offenses arising out of the same criminal
activity. State v. Lee, 2006 UT 5, ¶ 31, 128 P.3d 1179 (“Where two
crimes are defined narrowly enough that proof of one does not
constitute proof of the other, but broadly enough that both may
arise from the same facts, merger may be appropriate.”). Merger
commonly applies when “a defendant . . . [is] charged with
committing both a violent crime, in which a detention is
inherent, and . . . kidnaping based solely on the detention
necessary to the commission of the [violent] crime.” State v. Diaz,
2002 UT App 288, ¶ 17, 55 P.3d 1131. Thus, we must determine
whether the kidnapping was “merely incidental or subsidiary to
[the violent] crime.” State v. Couch, 635 P.2d 89, 93 (Utah 1981).
¶25 To do so, we require the State to prove that the detention
of the victim (1) was not “slight, inconsequential and merely
incidental to the other crime,” (2) was not “the kind inherent in
the nature of the other crime,” and (3) had “some significance
independent of the other crime.” State v. Finlayson (Finlayson I),
20140416-CA 13 2016 UT App 210State v. Wilder
2000 UT 10, ¶ 23, 994 P.2d 1243 (citation and internal quotation
marks omitted). Applying this three-part test in Finlayson I,
where a defendant blocked his victim’s escape during a sexual
assault and then handcuffed her so that he could continue the
assault, id. ¶ 4, our Supreme Court concluded that the defendant’s
convictions for aggravated sexual assault and aggravated
kidnapping should have merged. Id. ¶¶ 23–24. Merger was
appropriate because the acts of detention were committed during
the course of a sexual assault, did not exceed the time necessary
for the sexual assault, and had no independent significance from
the assault. Id.
¶26 In Finlayson II, 8 we applied the Finlayson I test and held
that the defendant’s convictions for aggravated assault and
aggravated kidnapping did not merge. Finlayson II, 2014 UT App
282, ¶ 53. There, the defendant physically assaulted the victim in
their shared residence before she briefly escaped. Id. ¶ 2. When
the victim broke free of the defendant and ran to the front door
of the house, the defendant blocked the door. Id. ¶ 4. He then
threw her off of a landing and down a flight of stairs to the
basement, strangled her again, and sat on her for twenty
minutes. Id. ¶¶ 4–5. Merger was inappropriate because the acts
of detention—blocking the victim’s exit from the house and
sitting on top of her—were not inconsequential and the period of
restraint was not incidental, as he held her for more than the
amount of time necessary to complete the original assault.
Further, the detention was not “inherent in the nature of the
aggravated assault” but was independently significant because
8. The reader likely will have observed that the two cases
involving the same defendant Finlayson are fourteen years
apart. The cases were appeals from convictions involving two
entirely separate incidents and two different victims. See
Finlayson II, 2014 UT App 282, ¶ 3 n.5, 362 P.3d 926.
20140416-CA 14 2016 UT App 210State v. Wilder
he could have pushed her down the stairs without also detaining
her. Id. ¶¶ 51–52.
¶27 Similarly, in State v. Lee, 2006 UT 5, 128 P.3d 1179, and
State v. Sanchez, 2015 UT App 27, 344 P.3d 191, merger did not
occur when the defendants sexually assaulted their victims and
subsequently dragged them a short distance. See Lee, 2006 UT 5,
¶ 34; Sanchez, 2015 UT App 27, ¶¶ 2, 7. In Lee, the defendant
grabbed a woman who was walking on the side of a highway
and sexually assaulted her. 2006 UT 5, ¶¶ 3–4. After she broke
free, the woman resumed walking down the highway, but the
defendant grabbed her from behind, slamming her to the
pavement and dragging her across the highway. Id. ¶ 4. He
controlled her long enough to pull her into an alleyway, kick her
repeatedly, and pull her pants down. Id. The Utah Supreme
Court concluded that the dragging, kicking, and second
disrobing were not “inherent in the nature of” the first sexual
assault, explaining that “most assaults do not involve the
relocation of the victim from one site to another.” Id. ¶ 34. And
this episode was “significantly independent of” the first sexual
assault because it “made the assault far more difficult to detect
than it would have been on [the highway].” Id.
¶28 In Sanchez, we held that merger did not occur when a
defendant assaulted a victim who subsequently escaped to an
apartment down the hall from where the original assault
occurred, whereupon the defendant caught up to the victim and
dragged her fifty-eight feet down a hallway and back into his
own apartment to prevent her from getting help. 2015 UT App
27, ¶¶ 2–3, 12, 16. He then bit her ear so hard that it was nearly
ripped off. Id. ¶ 3. These activities were not inherent in the initial
simple assault. Id. ¶ 12. In both cases, our analysis focused on the
defendants’ overpowering their victims and dragging them to
different, less public locations. Lee, 2006 UT 5, ¶ 34; Sanchez, 2015
UT App 27, ¶ 12.
20140416-CA 15 2016 UT App 210State v. Wilder
¶29 Here, if the State based its aggravated kidnapping charge
only on the episode in the car, Finlayson I would be dispositive.
In the car, Defendant controlled the victim, and she was not free
to leave, as illustrated by his threatening to gut her and grabbing
her pants in an attempt to prevent her escape. But he detained
her only for the purpose of continuing the ongoing sexual
assault, as was the case in Finlayson I.
¶30 The aggravated kidnapping conviction in this case can,
however, readily be sustained on the basis of the events in the
hallway, which are much more similar to Finlayson II, Lee, and
Sanchez. In each of those cases, the defendant, after an initial
assault, stopped the victim’s escape and then detained her. As in
those cases, Defendant sexually assaulted the victim before she
successfully escaped, and then he initiated a new criminal act by
impeding her movement—grabbing her hair and pulling her
down the hallway. Similar to the defendants throwing the victim
down the stairs in Finlayson II, kicking and disrobing the victim
in Lee, and biting and bloodying the victim in Sanchez, Defendant
here detained the victim long enough to commit an uncharged
assault by punching her in the face. And as in the previous cases,
while the dragging was only for a short period of time, that
period exceeded the time Defendant needed to commit the
sexual assault, as that crime was already complete when the
victim escaped from Defendant’s car and began frantically
searching for help in the apartment complex. Thus, the hair
pulling and dragging down the hallway were not incidental to
the sexual assault but were a part of a subsequent physical
assault. Likewise, the detention was not of the kind inherent in
the sexual assault because it came after the completion of the
sexual assault. Finally, the acts of detention had independent
significance because, as in Finlayson II, Defendant did not need
to chase the victim and do violence to her in order to perpetrate
the sexual assault. And as in Sanchez, it is fair to infer that
Defendant detained the victim, in part, to keep her from finding
help and reporting the sexual assault.
20140416-CA 16 2016 UT App 210State v. Wilder
¶31 Because we conclude that, as a matter of law, trial counsel
could not have established that the kidnapping and sexual
assault charges merged, we also conclude that counsel’s election
not to move for merger of the two convictions was not
ineffective assistance. Counsel is not obligated to make futile
motions. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.
CONCLUSION
¶32 Defendant has failed to persuade us that any of his claims
on appeal have merit. First, Defendant did not produce evidence
in support of his motion for new trial, and we defer to the trial
court’s substantial discretion in denying the requested new trial
for lack of evidence. Second, there was sufficient evidence from
which a reasonable jury could have found that Defendant
committed an aggravated kidnapping. And third, Defendant’s
trial counsel did not provide ineffective assistance for failing to
argue merger when, as a matter of law, merger was not
appropriate in this case and any such motion would therefore
have been futile.
¶33 Affirmed.
20140416-CA 17 2016 UT App 210