State v. Zaragoza , 287 P.3d 510 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100749‐CA
)
v. ) FILED
) (September 27, 2012)
Jonathan Eric Zaragoza, )
) 2012 UT App 268Defendant and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 091904897
The Honorable Michele M. Christiansen, the Honorable Anthony B. Quinn, and the
Honorable Dennis M. Fuchs1
Attorneys: Troy L. Booher and Christopher L. Stout, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Thorne, McHugh, and Roth.
THORNE, Judge:
¶1 Defendant Jonathan Eric Zaragoza appeals from his convictions for aggravated
kidnapping, see Utah Code Ann. § 76‐5‐302 (2008), aggravated assault, see id. § 76‐5‐103
1
Judge Anthony B. Quinn presided over the trial and Judge Michele M.
Christiansen conducted the pretrial hearing on the State’s motion to admit certain
statements finding wrongdoing on the part of Defendant. Judge Dennis M. Fuchs
presided over the sentencing.
(2008),2 and domestic violence in the presence of a child, see id. § 76‐5‐109.1 (Supp.
2012).3 We affirm.
¶2 Defendant’s charges arise from a dispute between Defendant and his wife, Ms.
Zaragoza (Wife), at a motel where the couple was staying with a friend and Wife’s
eight‐year‐old daughter. After the incident, Wife contacted the police, who
photographed the motel room and Wife’s injuries. Wife gave two witness statements to
the police. Before trial, Wife invoked her state constitutional spousal testimonial
privilege, stating that she would not testify against Defendant. The State moved to
admit Wife’s witness statements under the forfeiture‐by‐wrongdoing doctrine arguing
that Defendant forfeited any confrontation challenges to the admission of Wife’s out‐of‐
court statements when he procured her unavailability. The trial court held an
evidentiary hearing and granted the State’s motion.
¶3 At trial, the State presented Wife’s witness statements describing what had
happened in the motel room.4 On the morning of the second day of trial, defense
counsel argued that State v. Finlayson, 2000 UT 10, 994 P.2d 1243, applied to the matter
and requested the following proposed jury instruction:
You are instructed that the law does not allow double
punishment for the same act. Accordingly, you may not find
the defendant guilty of both a kidnaping charge and an
assault charge unless you find beyond a reasonable doubt
that any detention of [Wife] was independent of and not
merely incidental to any assault of [Wife]. Accordingly, if
you find that [Defendant] assaulted [Wife] over a period of
2
Section 76‐5‐103 was amended in 2010. See Utah Code Ann. § 76‐5‐103
(historical notes) (Supp. 2012). Because the statute has since been amended, we cite the
2008 version of the statute under which Defendant was charged.
3
The current version of section 76‐5‐109.1 was amended effective May 12, 2009.
See Utah Code Ann. § 76‐5‐109.1 (historical notes) (Supp. 2012). The amended version
of the statute was the version in effect when Defendant was charged.
4
Defense counsel noted a standing objection to Wife’s out‐of‐court statements.
20100749‐CA 2
time, but that he did not detain or restrain her for any
significant period of time, in addition to the time taken up
by the assault, you may not find him guilty of kidnaping.
The trial court denied defense counsel’s proposed instruction. The jury convicted
Defendant of aggravated kidnapping, aggravated assault, and commission of domestic
violence in the presence of a child. Defendant now appeals and argues that he is
entitled to a new trial because the trial court erred when it (1) denied Defendant’s
request for a jury instruction on aggravated assault as a lesser‐included offense of
aggravated kidnapping and (2) admitted Wife’s hearsay statements at trial.
I. Jury Instruction
¶4 Defendant first argues that the trial court erred by failing to instruct the jury on
the lesser‐included relationship between aggravated assault and aggravated
kidnapping. “Whether a jury instruction on a lesser included offense is appropriate
presents a question of law,” State v. Spillers, 2007 UT 13, ¶ 10, 152 P.3d 315, which is
reviewed for correctness, see State v. Daniels, 2002 UT 2, ¶ 27, 40 P.3d 611. Under State v.
Baker, 671 P.2d 152 (Utah 1983), a defendant is entitled to a requested lesser‐included
offense instruction when
(1) the two offenses are related because some of their
statutory elements overlap, and the evidence at trial of the
greater offense involves proof of some or all of those
overlapping elements; and (2) the evidence provides a
rational basis for a verdict acquitting the defendant of the
offense charged and convicting the defendant of the lesser‐
included offense.
State v. Evans, 2001 UT 22, ¶ 18, 20 P.3d 888 (citing Baker, 671 P.2d at 159). However, we
do not reach Defendant’s lesser‐included offense argument because it was not
preserved below.
¶5 At trial, Defendant did not request a lesser‐included offense instruction nor did
he object to the trial court’s failure to include a lesser‐included offense instruction in its
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proposed jury charge.5 Instead, defense counsel requested a merger doctrine
instruction based on Finlayson, 2000 UT 10. On appeal, Defendant argues that the trial
court erred by refusing to give Defendant’s requested jury instruction explaining the
lesser‐included relationship between aggravated kidnapping and aggravated assault.
Defendant conflates the merger doctrine with the lesser‐included offense legal concept.
The jury instruction Defendant requested pertained to his merger doctrine argument
and instructed the jury on the merger doctrine not the concept of a lesser‐included
offense.
¶6 Lesser‐included offenses are “those where the two crimes are such that the
greater cannot be committed without necessarily having committed the lesser.” State v.
Finlayson, 956 P.2d 283, 287 (Utah Ct. App. 1998) (internal quotation marks omitted); see
also State v. Kerr, 2010 UT App 50, ¶ 2 n.1, 228 P.3d 1255 (mem.) (citing Finlayson, 956
P.2d at 289 and discussing the analytical distinction between the merger doctrine and
the lesser‐included offense concept). “While [the lesser‐included offense and the
merger doctrine] may indeed overlap in certain circumstances, they are analytically
distinct.” Kerr, 2010 UT App 50, ¶ 2 n.1.
For example, the merger doctrine, which is most commonly
applied to situations involving a defendant who has been
charged with committing both a violent crime, in which a
detention is inherent, and the crime of kidnaping based
solely on the detention necessary to the commission of the
companion crime, [and] is useful for determining whether a
detention or movement of a victim is significantly
independent of another crime to justify a separate conviction
for kidnaping.
Id. (citation and internal quotation marks omitted) (citing Finlayson, 956 P.2d at 289).
The requested instruction at issue in this case instructs the jury that it “may not find the
defendant guilty of both a kidnaping charge and [an] assault charge unless you find
5
Defense counsel clarified that his only exceptions to the trial court’s proposed
jury instructions were that the court should have included the merger doctrine
instruction and omitted both the definition of serious bodily injury and the flight
instruction.
20100749‐CA 4
beyond a reasonable doubt that any detention of [Wife] was independent of and not merely
incidental to any assault of [Wife].” (Emphasis added.) This is very different from a
lesser‐included offense instruction instructing the jury that “an offense is lesser
included when proof of one crime necessarily proves all of the elements of the second
crime.” State v. Brooks, 908 P.2d 856, 861 (Utah 1995). Because we observe that
Defendant actually requested a merger doctrine instruction and not a lesser‐included
offense instruction and points to nowhere in the record where such a request was
preserved, we conclude that Defendant did not preserve his lesser‐included offense
issue for appeal.6 See State v. Maese, 2010 UT App 106, ¶ 13, 236 P.3d 155 (“[I]n order to
preserve an issue for appeal the issue must be presented to the trial court in such a way
that the trial court has an opportunity to rule on that issue.” (internal quotation marks
omitted)). As a result, we decline to address this claim on appeal.
II. Hearsay Statement
¶7 Defendant next argues that the trial court erred when it admitted Wife’s out‐of‐
court statements utilizing the forfeiture‐by‐wrongdoing doctrine. Forfeiture by
wrongdoing forecloses the defendant’s constitutional right to be confronted with the
witnesses against him when the defendant’s affirmative acts caused the witness to be
unavailable. See State v. Poole, 2010 UT 25, ¶ 10, 232 P.3d 519. Defendant asserts that his
conduct in this case is not the type of conduct that justifies forfeiture of his
confrontation clause rights. The trial court’s “decision to admit testimony that may
implicate the confrontation clause is . . . a question of law reviewed for correctness.” Id.
¶ 8 (internal quotation marks omitted).
¶8 The doctrine of forfeiture by wrongdoing applies if the State can show “(1) the
witness is unavailable at trial, (2) the witness’s unavailability was caused by a wrongful act of
the defendant, and (3) the defendant’s act was done with an intent to make the witness
unavailable.”7 Id. ¶ 20 (emphasis added). In this case, the trial court applied the
forfeiture‐by‐wrongdoing doctrine to reach its conclusion that Defendant caused Wife’s
6
Defendant in his reply brief states that he does not argue on appeal that the trial
court erred in its merger ruling.
7
Defendant does not dispute that the first and third prongs of the test in State v.
Poole, 2010 UT 25, ¶ 20, 232 P.3d 519, are met in this matter.
20100749‐CA 5
unavailability through the wrongful act of contacting Wife 276 times by phone. The
trial court found that the calls were intended to influence her and were made in
violation of the court’s no‐contact order.8 Defendant asserts that the court’s application
of the doctrine was overly expansive, essentially concluding that any act, including
encouraging a spouse to withhold privileged testimony, undertaken with the intent to
procure a witness’s unavailability is per se wrongful. In challenging the court’s
wrongful act determination, Defendant fails to acknowledge that the specific acts the
court considered in its determination—276 phone calls Defendant initiated from
jail—were undertaken in violation of a no‐contact order. The trial court specifically
referenced those phone calls and the content of those calls and found that there was
more than a preponderance of the evidence to show that “this defendant engaged in
witness tampering to attempt to induce someone from withholding testimony, change
somebody’s testimony, influence the testimony that may be given at trial.” These
findings are sufficient to establish the second prong of the test that Defendant caused
Wife’s unavailability by the wrongful act of contacting Wife by phone 276 times in
violation of a no‐contact order.9
8
The trial court found that it was “fairly clear” that “there was plenty of
influence” including reminders of the past, offers and withdrawals of forgiveness,
indications of change and references to God or a higher power, and discussion of the
relationship.
9
Even if we were to conclude that the trial court erred in finding that Defendant’s
acts were the type of conduct that justifies forfeiture of his rights under the
confrontation clause, we conclude any such error was harmless because Defendant was
not denied his right to confront Wife. At trial, Defendant called Wife to testify. Wife
testified and willingly answered defense counsel’s questions. Because Defendant was
provided a sufficient opportunity to cross‐examine Wife, we conclude that he was
afforded his right to confrontation. Cf. State v. Nelson, 725 P.2d 1353, 1356 (Utah 1986)
(“The essence of the confrontation right is the opportunity to have the accusing witness
in court and subject to cross‐examination, so that bias and credibility can be evaluated
by the finder of fact. If the witness is physically present and subject to cross‐
examination, . . . these values would seem to be satisfied.” (citations and internal
quotation marks omitted)).
20100749‐CA 6
¶9 In summary, Defendant argues that the trial court failed to instruct the jury on
the lesser‐included relationship between aggravated assault and aggravated
kidnapping. Defendant did not, however, request a lesser‐included offense instruction.
Instead, Defendant requested a merger doctrine jury instruction. Therefore, Defendant
failed to preserve his lesser‐included offense argument, and we decline to address this
claim for the first time on appeal. Defendant also argues that the court erred when it
admitted Wife’s out‐of‐court statements. The trial court admitted the statements under
the forfeiture‐by‐wrongdoing doctrine, finding that Defendant caused Wife’s
unavailability by placing 276 phone calls to Wife in violation of a no‐contact order in an
effort to influence her not to testify for the State. The court’s findings are sufficient to
establish that Defendant caused Wife’s unavailability by a wrongful act. As such, we
see no error with the trial court’s determination that Defendant forfeited his right to
confront Wife. Even so, Wife subsequently testified at trial providing Defendant with
an opportunity to cross‐examine Wife. Thus, even if there had been any error in
admitting Wife’s out‐of‐court statements it was cured when Wife subsequently testified.
¶10 Affirmed.
____________________________________
William A. Thorne Jr., Judge
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¶11 WE CONCUR:
____________________________________
Carolyn B. McHugh, Judge
____________________________________
Stephen L. Roth, Judge
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