State v. Finlayson , 362 P.3d 926 ( 2014 )

2014 UT App 282_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JEFFERY FINLAYSON,
Defendant and Appellant.
Opinion
No. 20110906-CA
Filed November 28, 2014
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 101904639
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN
concurred.1
GREENWOOD, Senior Judge:
¶1 Jeffery Finlayson appeals from his convictions for
aggravated kidnapping, a first degree felony, Utah Code Ann. § 76-
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
State v. Finlayson
5-302 (LexisNexis Supp. 2013),2 and aggravated assault, a third
degree felony, id. § 76-5-103 (2012).3 We affirm.
BACKGROUND
¶2 In early May 2010, Finlayson informed his wife (Wife) of
eight months that he wanted a divorce.4 On the evening of May 21,
2010, Wife had dinner with friends and returned to the couple’s
home around 10 p.m. At the time, Finlayson was doing repair work
on the living room wall and buffing it with steel wool. One of the
couple’s dogs chewed on some of the steel wool Finlayson had left
in the bedroom, and Finlayson reacted to the dog’s behavior by
hitting the dog. Wife told Finlayson to stop and put herself
between Finlayson and the dog. When it appeared Finlayson
would not hit the dog anymore, Wife moved to the doorway of the
bedroom while still arguing with Finlayson. Finlayson then pushed
2. We cite the current version of the Utah Code where recent
amendments do not materially affect our analysis.
3. Finlayson was also convicted of damage to a communication
device, a class B misdemeanor. Utah Code Ann. § 76-6-108(LexisNexis 2012). However, because Finlayson does not
specifically address this conviction until his reply brief, and even
then does not state why the evidence submitted by the State was
insufficient to sustain his conviction on this charge, we decline to
address it. See Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (“It is well
settled that issues raised by an appellant in the reply brief that were
not presented in the opening brief are considered waived and will
not be considered by the appellate court.” (citation and internal
quotation marks omitted)).
4. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and we therefore recite
the facts consistent with that standard. However, we present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” State v. Davie, 2011 UT App 380, ¶ 2 n.1, 264 P.3d
770 (citation and internal quotation marks omitted).
20110906-CA 2 2014 UT App 282State v. Finlayson
Wife, grasped her by the neck, and eventually pinned her down on
the bed for ten to fifteen seconds. When Finlayson let her go, Wife
retreated into the hallway.
¶3 As Wife walked down the hallway, Finlayson struck her in
the back of the head with his fist. Finlayson delivered seven or
eight punches to Wife’s head while Wife crouched down and “tried
to keep the blows off.” The couple proceeded to wrestle on the
floor, hitting, kicking, and yelling at each other. Wife warned
Finlayson, “I’m going to call the police, I’m going to call your
parole officer.”5 Finlayson responded to Wife’s threat by stating,
“[I]f I have to kill you, I’ll do it.” Finlayson then grabbed Wife
around the neck with both hands and squeezed her throat for five
or ten seconds. Finlayson let go, and then followed Wife into
another room where Wife put her shoes on and prepared to leave
the house. Wife again warned Finlayson that she would call the
police. At this point, Finlayson grabbed Wife’s mobile phone from
her and blocked the doorway. Wife then threw a candle at
Finlayson’s head and struggled to exit the room.
¶4 After a couple minutes, Wife managed to escape and dashed
to the front door of the house. However, Finlayson got there first
and prevented Wife from opening the door. Wife told Finlayson,
“You have to let me out. You need to let me go.” Finlayson pleaded
with Wife not to leave and not to tell anybody. Wife moved toward
the back door, but Finlayson again moved faster and blocked
Wife’s exit. While standing at the top of the landing leading to the
back door, Wife repeated her request that Finlayson let her go.
Instead of letting Wife leave, Finlayson grabbed Wife by the shirt,
pulled her down to the landing, and shoved her down a flight of
ten to twelve stairs into the basement. Wife landed on her back at
the bottom of the stairs.
¶5 Finlayson then went down the stairs and put both hands
around Wife’s neck, strangling her for ten to twenty seconds. As
5. At the time of these events, Finlayson was on parole for offenses
unrelated to the charges involved in this appeal. See generally State
v. Finlayson, 2000 UT 10, ¶ 1, 994 P.2d 1243.
20110906-CA 3 2014 UT App 282State v. Finlayson
Wife struggled to breathe, Finlayson stated, “I’m not going back to
prison. If you have to die tonight I’ll make that happen. I’m going
to kill you tonight.” While still holding her neck, Finlayson
dragged Wife to her feet and said, “If you promise not to tell
anybody I’ll let you go.” Finlayson ultimately loosened his grip
around Wife’s neck enough for Wife to say, “I promise.” In
response, Finlayson stopped choking Wife. Wife fell to the floor
crying. For twenty minutes, Finlayson sat on her and talked about
how he would “rather kill [himself] before [going] back to prison.”
Eventually, Finlayson went back up to the landing, made Wife
reiterate her promise not to call the police, and agreed that he
would leave the house. About a half hour later, Finlayson exited
the house and left his set of house keys with Wife so that he could
not reenter.
¶6 When Wife went upstairs, she found her cell phone and its
battery “scattered.” The house phone was not functioning either.
A few hours later, Wife went to a friend’s (Friend) house. The next
day, Wife enlisted friends to help her move her belongings out of
the house. Wife called the police around 8:30 p.m. that evening.
When a responding officer (Officer) asked her to take him back to
the couple’s house that night, Wife refused, citing her fear of
Finlayson.
¶7 In June 2010, Finlayson was charged with aggravated
assault, damage to or interruption of a communication device, and
unlawful detention. Following a preliminary hearing in August
2010, the trial court found probable cause on all three charges and
bound Finlayson over for trial. In April 2011, the State moved to
amend the information, seeking to dismiss the unlawful detention
count and to add a new count for aggravated kidnapping.
Finlayson did not file any opposition to the State’s motion. At a
subsequent scheduling conference, Finlayson’s counsel addressed
the State’s amended information and stated, “Your Honor, we
would ask—we have looked to try to find an objection. We believe
it is in the State’s right to do that. . . . And we would ask to have a
new preliminary hearing so we can explore that—the probable
cause on that issue.” The trial court agreed, and at a subsequent
20110906-CA 4 2014 UT App 282State v. Finlayson
hearing, found probable cause to bind over Finlayson on all
charges in the amended information.6
¶8 Before trial, Finlayson filed motions to exclude evidence of
prior bad acts that led to his 1995 convictions, anticipating the
State’s notice of its intent to introduce evidence of Wife’s statement
that she would contact Finlayson’s parole officer and of Finlayson’s
response that he “can’t go back to prison” (the prior bad acts
evidence). See generally Utah R. Evid. 404(b)(1), (b)(2) (“Evidence of
a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person
acted in conformity with the character,” but “[t]his evidence may
be admissible for another purpose”). The State also moved to admit
Finlayson’s prior conviction for insurance fraud in the event that
Finlayson chose to testify at trial.7 The trial court granted the State’s
motion to admit the prior bad acts evidence but denied the motion
to admit evidence of Finlayson’s fraud conviction. Following the
court’s rulings, defense counsel requested a short recess to confer
with Finlayson, explaining, “[T]here might be one other thing we
want to address with the Court.” When proceedings resumed,
defense counsel introduced the subject of Finlayson’s desire to
waive a jury trial in the following exchange:
[DEFENSE COUNSEL]: Judge, the final issue that has
arisen is that based on—quite frankly, Mr. Finlayson
has some concerns about a jury finding out that he
was on parole, and we’ve explained just some of the
procedural things with that; that the Court is opened
to readdressing that situation. But . . . our legal
advice to [Finlayson] has been that we, quite frankly,
doubt we’ll be able to find persuasive authority to
6. All three counts were charged as domestic violence crimes.
7. The State informed the court that it wanted to introduce evidence
of Finlayson’s prior convictions but that it did not intend to
introduce the nature of Finlayson’s other prior convictions (rape
and sodomy) unless Finlayson opened the door to the specifics of
his prior crimes.
20110906-CA 5 2014 UT App 282State v. Finlayson
give to the Court to—I’ve pled to the Court changing
its decisions on that regard. But at this time, that Jeff
Finlayson is desirous of waiving his right to a jury
trial and would like to have Your Honor as the trier
of fact in this matter. And I just talked to [the
prosecutor] about this, and . . . as I’ve explained to
Mr. Finlayson of the current state law—although I
know it is on appeal right now with Utah Supreme
Court,[8] the State does have to consent to such a
waiver, and he has indicated that he would like 24
hours to think about it and decide whether
(inaudible) or not.
THE COURT: That’s fine.
[DEFENSE COUNSEL]: And I obviously think that’s
appropriate.
THE COURT: Okay. All right. Well, then keep me
posted.
[DEFENSE COUNSEL]: Okay. What is the status? I
know that the Court had mentioned yesterday about
other judges hearing the trials. I can tell you right
now that Mr. Finlayson’s waiving the jury trial is
predicated wholly on Your Honor hearing the
evidence. And if another—one of the senior judges
were to be assigned to the bench trial, I don’t think
he would want to waive the jury trial.
THE COURT: Okay.
[DEFENSE COUNSEL]: Is that correct?
[FINLAYSON]: That is correct.
....
[FINLAYSON]: One last thing, if I may? I’d just like
to put it into the record if it’s all right, that
I—although I respect Your Honor and I think—I
trust that Your Honor would give me a very fair trial,
and I appreciate that. The—I’d just like to get it into
the record that this comes on the heels of my doubts
8. Defense counsel was most likely referring to State v. Greenwood,
2012 UT 48, 297 P.3d 556, that held that a defendant may not waive
a jury trial without the State’s consent. Id. ¶ 1.
20110906-CA 6 2014 UT App 282State v. Finlayson
that—with the [State’s] 404(b) motion being granted,
that I would be able to get a fair jury trial just
because we’re in the information age, and—
[DEFENSE COUNSEL]: I think that’s a valid
argument.
[FINLAYSON]: Yeah.
[DEFENSE COUNSEL]: Okay. Thank you, Judge.
THE COURT: Yeah. It’s always an issue of concern,
and we’ll have jury instructions associated with that
information age issue.
[FINLAYSON]: Thank you, Your Honor.
The trial court’s minute entry summarized these events, stating,
“Based on the rulings of the Court, the defendant discussed with
counsel that he waives his right to a jury trial and requests a bench
trial, [to] which the state has 24 hours to reply. This matter is still
set for a jury trial . . . .”9 The State did not object to Finlayson’s
request for a bench trial.
¶9 The trial court held a bench trial in September 2011. Wife
testified as to her recollection of the events of May 21, 2010. She
described the couple’s initial confrontation in the bedroom and
their struggle in the hallway. Wife testified that although the fight
began as “a couple[’s] argument,” “things kind of shifted” when
Wife warned Finlayson that she would call his parole officer. The
argument then escalated beyond “an average fight” when
Finlayson put his hands around her neck and threatened to kill her.
Wife further testified about how Finlayson then foiled her attempts
to escape through the front and back doors, threw her down the
stairs, strangled her, and sat on top of her until she promised not
to report him to the police or his parole officer. Wife indicated that
she felt that she could not leave during the twenty minutes
Finlayson sat on her and during the half hour Finlayson prepared
to leave the house. According to Wife, the time period between the
9. At one point in the trial, when representing himself, see infra
¶ 14, Finlayson recounted his jury trial waiver and explained that
his desire for a bench trial was because of his fear that the jury
would be prejudiced against him by the prior bad acts evidence.
20110906-CA 7 2014 UT App 282State v. Finlayson
initial confrontation in the bedroom and the time when Finlayson
finally left the house was “somewhat over an hour, maybe an hour
15, an hour 20.” Wife also testified that following the altercation
with Finlayson, she had scrapes and red marks on her neck, lumps
on her head, a black eye, and bruises on her feet.
¶10 Friend also testified for the State. Friend recounted Wife’s
arrival at her home in the early morning hours of May 22, 2010.
Friend described observing “swollen” and “large lumps on the
back of [Wife’s] skull and a big red mark on her neck.” Officer
testified as to the extent of Wife’s injuries as well. Officer observed
red marks and scratches on Wife’s neck. At the close of the State’s
case-in-chief, Finlayson moved for a directed verdict on all three
counts. The trial court denied the motion.
¶11 Finlayson testified in his own defense and offered a starkly
different account of the events of May 21, 2010. Finlayson testified
that as he was scolding the dog for chewing the steel wool and
swatting the dog on its nose, Wife plowed into him. According to
Finlayson, Wife pushed against the right side of his face and neck
with her hands and pushed him over. When Finlayson stood up,
Wife flailed her arms at Finlayson, attempting to strike him.
Finlayson testified that he instinctively steered Wife away and onto
the bed by holding her neck and that he managed to pin her down
by the neck. After Finlayson said, “Don’t do this,” he let Wife go.
Wife responded by yelling and swinging her arms at him again.
Finlayson explained at trial that they were both yelling at each
other and that Wife’s punches came in “four or five rounds” of
“more than 30” punches each until Wife paused to catch her breath.
Although Wife hit him a few times, Finlayson blocked most of her
“150 to 250” punches with his forearms and hands. Finlayson
testified that Wife “wasn’t able to hurt [him] . . . no matter how
much she tried” and that he felt “an ego boost” because he “didn’t
feel threatened by her.”
¶12 According to Finlayson, they then took each other down and
wrestled on the floor. Finlayson was able to take control and
pinned Wife to the floor by her neck for five seconds. He testified
that he “just squeezed [Wife’s neck] a little bit to get her attention.”
20110906-CA 8 2014 UT App 282State v. Finlayson
Finlayson said, “Knock it off,” and released Wife. The dispute then
moved into another room, where Wife kicked and broke the
laundry basket. Wife attacked Finlayson with a stick. Finlayson also
testified that after he left and returned to the room, a floor length
mirror had been smashed. Shortly thereafter, Wife “became very
calm” and told Finlayson, “You’re going back to prison buddy, I’m
calling your parole officer.” Finlayson then got down on his knees
and pleaded with Wife not to call his parole officer. As Wife moved
toward the front door, Finlayson moved backwards, crouched on
his knees, and begged her not to report him. Once they reached the
front door, Wife turned and started walking back to the kitchen.
Finlayson caught up with her and eventually ended up kneeling on
the landing in front of the back door. Finlayson testified that Wife
then leaned over and whispered in his ear, “You’re going back to
prison.” At this point, Finlayson “exploded,” “screamed,” and
pushed Wife. As Finlayson pushed, Wife lurched backward and
“went down the stairs.”
¶13 Finlayson testified that as soon as he saw Wife going down
the stairs, he “was frozen in horror” and “was worried that she was
going to break her neck.” Finlayson went to the bottom of the
stairs, where Wife grabbed him around his knees. Finlayson and
Wife wrestled with each other until they were in a position where
Finlayson applied pressure against Wife’s neck with his arm. After
about ten seconds in this position, Wife said, “I give up.” Finlayson
and Wife both relaxed. According to Finlayson, Wife “just laid
there on the carpet,” and while he “was still on top of her,” the
couple proceeded to have a “heart-to-heart” conversation. During
this conversation, Wife voluntarily promised that she would not
call the police. After about six or seven minutes of talking,
Finlayson went upstairs to collect his clothes and left the house
fifteen minutes later.
¶14 On the second day of trial, Finlayson moved to dismiss his
trial counsel. Finlayson indicated to the court that his trial counsel
refused to ask questions that he believed were necessary to
impeach Wife’s testimony, stating, “I feel that those [questions] are
important enough so that [the court] . . . can see who is telling the
truth here because there are only two possibilities. Either I’m telling
20110906-CA 9 2014 UT App 282State v. Finlayson
the truth or [Wife] is . . . .” After confirming Finlayson’s desire to
represent himself, the trial court granted Finlayson’s motion and
appointed standby counsel. Finlayson proceeded to represent
himself for the rest of the trial. In presenting his case, Finlayson
called Wife back to the witness stand and examined her himself.
¶15 The trial court found Finlayson guilty as charged on all
counts. In response to the verdict, Finlayson protested that the trial
court “just simply said guilty” and did not give him “any reasons”
for its decision. The trial court then explained that “[Wife’s] actual
testimony was credible without . . . any indication of a motive for
her to lie” and “as a result of that . . . the facts have been
established by the State” beyond a reasonable doubt. The trial court
thereafter sentenced Finlayson to concurrent prison terms of six
years to life for aggravated kidnapping and zero to five years for
aggravated assault. The trial court also sentenced Finlayson to 180
days in jail, with credit for time previously served, for the
misdemeanor offense. Finlayson timely appeals.
ISSUES AND STANDARDS OF REVIEW
¶16 As an initial matter, Finlayson requests that we remand this
case to the trial court under rule 23B of the Utah Rules of Appellate
Procedure to create a record regarding his claims of vindictive
prosecution and ineffective assistance of counsel. See Utah R. App.
P. 23B. “A remand under rule 23B will only be granted ‘upon a
nonspeculative allegation of facts, not fully appearing in the record
on appeal, which, if true, could support a determination that
counsel was ineffective.’” State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d
1164 (quoting Utah R. App. P. 23B(a)).
¶17 Finlayson also contends that the trial court erred in trying
the case without a jury because Finlayson did not knowingly and
intelligently waive his right to a jury trial. Because Finlayson failed
to preserve this issue before the trial court, he argues that we
should review his claim under the doctrine of plain error. “[T]o
establish the existence of plain error and to obtain appellate relief
from an alleged error that was not properly objected to,” Finlayson
20110906-CA 10 2014 UT App 282State v. Finlayson
must show that “(i) [a]n error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e., absent
the error, there is a reasonable likelihood of a more favorable
outcome for [him], or phrased differently, our confidence in the
verdict is undermined.” See State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993). “If any one of these requirements is not met, plain
error is not established.” Id. at 1209.
¶18 Next, Finlayson argues that there is insufficient evidence to
support his convictions for aggravated assault and aggravated
kidnapping. “When reviewing a bench trial for sufficiency of the
evidence, we must sustain the trial court’s judgment unless it is
against the clear weight of the evidence, or if [we] otherwise reach[]
a definite and firm conviction that a mistake has been made.” Salt
Lake City v. Maloch, 2013 UT App 249, ¶ 2, 314 P.3d 1049 (alterations
in original) (citation and internal quotation marks omitted). “In
other words, we will only reverse if the trial court’s findings were
clearly erroneous.” Id. (citation and internal quotation marks
omitted).
¶19 Finlayson also argues that the trial court erred in failing to
merge his conviction for aggravated kidnapping with his
aggravated assault conviction. “Merger issues present questions of
law, which we review for correctness.” State v. Diaz, 2002 UT App
288, ¶ 10, 55 P.3d 1131.
¶20 Finally, Finlayson raises a constitutional challenge, arguing
that the aggravated assault statute is unconstitutionally vague.
Finlayson admits that this issue was not preserved but asserts that
exceptional circumstances exist that permit this court to reach the
merits of this issue. “[W]e reserve exceptional circumstances review
for cases involving rare procedural anomalies . . . where our failure
to consider an issue that was not properly preserved for appeal
would . . . result[] in manifest injustice.” State v. Munguia, 2011 UT
5, ¶ 22, 253 P.3d 1082 (omissions and second alteration in original)
(citation and internal quotation marks omitted).
20110906-CA 11 2014 UT App 282State v. Finlayson
ANALYSIS
I. Rule 23B Motion
¶21 Finlayson requests that we remand this case to the trial court
for an evidentiary hearing under rule 23B for the development of
the record.10 Specifically, he asserts that a remand is necessary to
establish (A) his claim of vindictive prosecution and (B) his claim
of ineffective assistance of counsel based on trial counsel’s failure
to realize that the prosecutor acted vindictively by amending the
information to drop the unlawful detention charge and to add the
aggravated kidnapping charge.
¶22 Rule 23B “was adopted to provide a procedural solution to
the dilemma created by an inadequate record of trial counsel’s
ineffectiveness.” State v. Gunter, 2013 UT App 140, ¶ 16, 304 P.3d
866 (citation and internal quotation marks omitted). As a result,
rule 23B motions are “available only in limited circumstances, to
supplement the record with known facts needed for an appellant
to assert an ineffectiveness of counsel claim on direct appeal.” State
v. Johnston, 2000 UT App 290, ¶ 23, 13 P.3d 175 (per curiam). The
rule provides,
A party to an appeal in a criminal case may move the
court to remand the case to the trial court for entry of
findings of fact, necessary for the appellate court’s
10. Finlayson and his appellate counsel filed separate 23B motions
that raise different issues. “[A] criminal defendant may either file
pro se motions if he or she has opted for self representation, or file
motions through counsel if represented.” State v. Wareham, 2006 UT
App 327, ¶ 33, 143 P.3d 302 (emphasis added). Accordingly, a
defendant “is not entitled to a ‘hybrid representation.’” Id. “When
a defendant is represented by counsel, he generally has no
authority to file pro se motions, and the court should not consider
them.” Id. (citation and internal quotation marks omitted). Because
Finlayson is represented by counsel on appeal, we do not consider
the issues he raises in his pro se motion to remand. See id.20110906-CA 12 2014 UT App 282State v. Finlayson
determination of a claim of ineffective assistance of
counsel. The motion shall be available only upon a
nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true,
could support a determination that counsel was
ineffective.
Utah R. App. P. 23B(a).
¶23 Finlayson’s first claim for remand, based on vindictive
prosecution, is beyond the scope of rule 23B. Finlayson requests a
remand to establish “whether prosecutorial vindictiveness was the
basis for the termination of all plea bargain discussion and the
filing of an Amended Information.” The plain language of rule 23B
permits a remand only when “necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.” Id.(emphasis added). Thus, rule 23B does not allow this court to
remand the matter for findings of fact unrelated to a claim of
ineffective assistance of counsel. Finlayson nevertheless argues that
after he filed several pro se pretrial motions, the prosecutor became
“very angry” and vindictively amended the information to charge
him with a more serious crime. These allegations are purely
speculative. See Johnston, 2000 UT App 290, ¶ 10 (“[T]he facts
alleged in support of a Rule 23B motion may not be speculative.”).
Moreover, because the aggravated kidnapping charge was
supported by the facts—as evidenced by the trial court’s decision
to bind Finlayson over for trial on the elevated charge—the
prosecutor’s decision to amend the information is not in itself
indicative of an improper prosecutorial motive. We therefore deny
Finlayson’s rule 23B motion as to his claim for vindictive
prosecution.11
11. We also observe that prosecutors routinely file additional or
more serious charges when plea negotiations fail. As the United
States Supreme Court has explained, “An initial
[information]—from which the prosecutor embarks on a course of
plea negotiation—does not necessarily define the extent of the
(continued...)
20110906-CA 13 2014 UT App 282State v. Finlayson
¶24 Finlayson’s second request for a rule 23B remand, based on
his claim of ineffective assistance of counsel, is also founded in
speculation. He argues that his counsel was ineffective in failing to
raise vindictive prosecution as a basis for seeking a dismissal. As
this court has previously explained, a defendant “cannot meet his
burden [under rule 23B] by merely pointing out what counsel did
not do; he must bring forth the evidence that would have been
available in the absence of counsel’s deficient performance.” State
v. Lee, 2014 UT App 4, ¶ 12, 318 P.3d 1164. “Fact allegations are
insufficient unless the defendant ‘present[s] this court with the
evidence he intends to present on remand and explain[s] how that
evidence supports’ an ineffective assistance of counsel claim.” State
v. Curtis, 2013 UT App 287, ¶ 18, 317 P.3d 968 (alterations in
original) (quoting Johnston, 2000 UT App 290, ¶ 11). In other words,
a rule 23B motion must be supported by affidavits that show how
the nonspeculative allegation of facts “could support a
determination that counsel’s performance was deficient” and
“demonstrate that the defendant suffered prejudice as a result.” Id.
¶ 15; see also Gunter, 2013 UT App 140, ¶ 16. Furthermore, a
defendant should identify witnesses who could testify at a rule 23B
evidentiary hearing and “must ordinarily submit affidavits from
the witnesses detailing their testimony.” Lee, 2014 UT App 4, ¶ 11
(citation and internal quotation marks omitted).
¶25 In support of his rule 23B motion, Finlayson provided only
his own affidavit and an affidavit from a private investigator who
11. (...continued)
legitimate interest in prosecution.” United States v. Goodwin, 457
U.S. 368, 380 (1982). “For just as a prosecutor may forgo legitimate
charges already brought in an effort to save the time and expense
of trial, a prosecutor may file additional charges if an initial
expectation that a defendant would plead guilty to lesser charges
proves unfounded.” Id.; see also Utah R. Crim. P. 4(d) (“The court
may permit an information to be amended at any time before trial
has commenced so long as the substantial rights of the defendant
are not prejudiced. If an additional or different offense is charged,
the defendant has the right to a preliminary hearing on that
offense . . . .”).
20110906-CA 14 2014 UT App 282State v. Finlayson
assisted Finlayson’s appellate counsel. However, these affidavits
and Finlayson’s motion for remand are “based largely upon
hearsay and allegations reciting what [Finlayson] hopes the
evidence will show and not on the required nonspeculative
allegation of facts.” See Curtis, 2013 UT App 287, ¶ 19 (citations and
internal quotation marks omitted). In addition, Finlayson has not
shown that trial counsel would have had any reason to pursue or
file a motion to dismiss based on vindictive prosecution or that the
trial court would have granted such a motion. Finlayson’s rule 23B
motion therefore is not properly supported by allegations that “if
true, could support a determination that counsel was ineffective.”
See Utah R. App. P. 23B(a). Accordingly, we deny Finlayson’s rule
23B motion because Finlayson has not met the requirements for
remand on his ineffective assistance of counsel claim.
II. Validity of Finlayson’s Waiver of Trial by Jury
¶26 Finlayson argues that the trial court plainly erred in failing
to ensure that he knowingly, voluntarily, and intelligently waived
his right to a jury trial. Specifically, Finlayson contends that the trial
court committed plain error in accepting his waiver of a jury trial
without first engaging in a colloquy with him and that “[w]ithout
such a discussion, his waiver could not be considered ‘knowing
and intelligent.’”
¶27 In Utah, “[a]ll felony cases shall be tried by jury unless the
defendant waives a jury in open court with the approval of the
court and the consent of the prosecution.” Utah R. Crim. P. 17(c).
“It is well settled that a defendant may waive his or her right to a
jury trial if the waiver is knowingly, voluntarily, and intelligently
made.” State v. Bhag Singh, 2011 UT App 396, ¶ 13, 267 P.3d 281.
“Courts must ensure that such waivers are knowing, voluntary,
and intelligent.” State v. Hassan, 2004 UT 99, ¶ 12, 108 P.3d 695.
“We look to the totality of the circumstances to determine whether
a defendant validly waived his right to a jury trial,” id. ¶ 14, and
we will not set aside a defendant’s verdict following a bench trial
“unless [the defendant] plainly shows that his waiver of a jury trial
was not freely and intelligently made,” Bhag Singh, 2011 UT App
396, ¶ 13.
20110906-CA 15 2014 UT App 282State v. Finlayson
¶28 The Utah Supreme Court encourages trial judges to conduct
a colloquy with a defendant who wishes to waive his right to a jury
trial. Hassan, 2004 UT 99, ¶ 18. Notwithstanding the advisability of
engaging in a colloquy before granting a waiver, the supreme court
has not mandated that trial judges conduct a colloquy or
“mechanically recite any set of specific inquiries on occasions of
jury waiver.” Id. ¶ 19. Likewise, trial courts are “under no
obligation to provide an exhaustive explanation of all the
consequences of a jury waiver.” Id. ¶ 17. As a result, under Utah
law, “a defendant can validly waive a right to a jury trial even in
the absence of a colloquy if other factors indicate that he
knowingly, intelligently, and voluntarily waived the right.” Id.
¶ 18.
¶29 Our decision in State v. Bhag Singh, 2011 UT App 396, 267
P.3d 281, is instructive. In that case, the defendant argued on
appeal that the trial court plainly erred in failing to ensure that he
knowingly, voluntarily, and intelligently waived his right to a jury
trial both because no colloquy took place and because no
interpreter was present when his trial counsel requested a bench
trial. Id. ¶¶ 13–14. In considering his appeal, we recognized that
neither a colloquy nor an interpreter is required for a jury waiver
to be knowing, voluntary, and intelligent. Id. ¶ 14. And when we
evaluated the totality of the circumstances, we were not persuaded
that the defendant’s waiver was not knowingly, voluntarily, and
intelligently made because the defendant “had an interpreter while
he consulted with his attorney about waiving his right to a jury
trial and his attorney requested the bench trial in [the defendant’s]
presence.” Id.12 We therefore determined that the trial court did not
plainly err. Id.
12. In State v. Hassan, 2004 UT 99, 108 P.3d 695, the Utah Supreme
Court stated that “[a] colloquy is especially useful in ensuring the
validity of a waiver when a defendant has limited comprehension
of the English language or is unrepresented by counsel.” Id. ¶ 18.
Those circumstances are not present in this case, and we can infer
that trial counsel discussed the waiver issue with Finlayson during
the recess after the ruling on the prior bad acts evidence. See infra
¶ 30.
20110906-CA 16 2014 UT App 282State v. Finlayson
¶30 Similarly, in this case, we are not convinced that the trial
court erred in granting Finlayson’s waiver of his right to trial by
jury. At a pretrial hearing, Finlayson’s counsel requested and was
granted a recess to speak with Finlayson shortly after the trial court
ruled that Wife’s statement about calling Finlayson’s parole officer
would be admitted at trial. Upon returning to open court,
Finlayson was present as his trial counsel indicated to the court that
“Finlayson has some concerns about a jury finding out that he was
on parole” and is therefore “desirous of waiving his right to a jury
trial and would like to have Your Honor as the trier of fact in this
matter.” Although the trial court did not thereafter conduct a
colloquy with Finlayson, when trial counsel asked Finlayson to
confirm that trial counsel accurately represented Finlayson’s
decision, Finlayson stated, “That is correct.” Additionally,
Finlayson addressed the court and volunteered that his waiver
“comes on the heels of [his] doubts” that he could have a fair jury
trial in light of the admission of the prior bad acts evidence. Given
the totality of the circumstances, we conclude that “other factors
indicate that [Finlayson] knowingly, intelligently, and voluntarily
waived the right” to a jury trial “even in the absence of a colloquy.”
See Hassan, 2004 UT 99, ¶ 18.
¶31 We therefore determine that the trial court did not err in
accepting Finlayson’s request to waive a jury trial without first
conducting a colloquy. Accordingly, Finlayson’s claim of plain
error fails because he cannot demonstrate that an error occurred.13
13. Finlayson also asserts that the trial court’s failure to engage in
a colloquy was a structural error that does not require a showing
of prejudice. See generally State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d
543 (explaining that structural errors are “flaws in the framework
within which the trial proceeds” and that “instead of requiring an
aggrieved defendant to prove prejudice, as a plain error analysis
requires, a structural error analysis presumes prejudice” (citations
and internal quotation marks omitted)). However, because we have
determined that the trial court did not err in accepting his jury trial
waiver, see supra ¶¶ 30–31, Finlayson’s structural error claim fails.
(continued...)
20110906-CA 17 2014 UT App 282State v. Finlayson
III. Sufficiency of the Evidence
¶32 Finlayson asserts that his aggravated assault and aggravated
kidnapping convictions are not supported by sufficient evidence.14
“When reviewing a bench trial for sufficiency of [the] evidence, we
must sustain the trial court’s judgment unless it is against the clear
weight of the evidence, or . . . the appellate court otherwise reaches
a definite and firm conviction that a mistake has been made.” Bhag
Singh, 2011 UT App 396, ¶ 5 (alteration and omission in original)
(citation and internal quotation marks omitted). “Upon review, we
accord deference to the trial court’s ability and opportunity to
evaluate credibility and demeanor.” State v. Davie, 2011 UT App
13. (...continued)
See Cruz, 2005 UT 45, ¶ 18 (noting that the existence of error is the
first prong in both plain error and structural error analyses).
14. Finlayson also complains that the trial court failed to make
adequate findings in support of its verdict.
[I]n cases in which factual issues are presented to and
must be resolved by the trial court but no findings of
fact appear in the record, we assume that the trier of
facts found them in accord with its decision, and we
affirm the decision if from the evidence it would be
reasonable to find facts to support it.
State v. Titus, 2012 UT App 231, ¶ 16, 286 P.3d 941 (citation and
internal quotation marks omitted). In this case, Finlayson objected
to the verdict, stating that the trial court “just simply said guilty”
and did not give him “any reasons” for its decision. In response,
the trial court stated that although it did not need to give reasons
for the guilty verdict, it found that “[Wife’s] actual testimony was
credible without . . . any indication of a motive for her to lie” and
“as a result of that . . . the facts have been established by the State”
beyond a reasonable doubt. Given these statements and the
evidence presented at trial, “we are confident we can trace the
steps by which the judge reached . . . [his] conclusions.” See id.(omission in original) (citation and internal quotation marks
omitted).
20110906-CA 18 2014 UT App 282State v. Finlayson
380, ¶ 18, 264 P.3d 770 (citation and internal quotation marks
omitted). “[B]ecause the trial court had the opportunity to view
these witnesses and weigh their credibility, we defer to its findings
unless the record demonstrates clear error.” Id. (alteration in
original) (citation and internal quotation marks omitted).
A. Aggravated Assault
¶33 Finlayson contends that there is insufficient evidence to
support his conviction for aggravated assault. “A person commits
aggravated assault if the person commits assault . . . and uses . . . a
dangerous weapon . . . or . . . other means or force likely to produce
death or serious bodily injury.” Utah Code Ann. § 76-5-103(1)
(LexisNexis 2012).15 An “assault” is
(a) an attempt, with unlawful force or violence, to do
bodily injury to another; (b) a threat, accompanied by
a show of immediate force or violence, to do bodily
injury to another; or (c) an act, committed with
unlawful force or violence, that causes bodily injury
to another or creates a substantial risk of bodily
injury to another.
Id. § 76-5-102(1). To establish that a person used force likely to
produce “serious bodily injury” as required by the Utah Code, see
id. § 76-5-103(1)(b), the evidence must show that the force used was
likely to cause “bodily injury that creates or causes serious
permanent disfigurement, protracted loss or impairment of the
function of any bodily member or organ, or creates a substantial
15. After the time Finlayson committed the offenses, the aggravated
assault statute was amended, deleting the variant of aggravated
assault where the actor “intentionally causes serious bodily injury
to another.” Utah Code Ann. § 76-5-103(1)(a) (LexisNexis 2009).
Compare id., with id. § 76-5-103(1) (2012). Because this case involves
the unrevised variant where the actor “uses a dangerous weapon
. . . or other means or force likely to produce death or serious
bodily injury,” the amendments are not relevant here.
20110906-CA 19 2014 UT App 282State v. Finlayson
risk of death,” id. § 76-1-601(11). Under the State’s theory of the
case, and as argued to the trial court, Finlayson assaulted Wife with
“other means or force likely to produce death or serious bodily
injury” when he forcefully threw Wife down the stairs. See id. § 76-
5-103(1)(b).
¶34 On appeal, Finlayson does not contest that the evidence was
sufficient to show that he committed an assault and that he used
force sufficient to cause Wife bodily injury. However, he asserts
that because the State failed to present any expert, forensic, or
competent evidence that the amount of force he used actually
caused serious bodily injury, the evidence is insufficient to prove
that he committed an aggravated assault. In Finlayson’s view, the
injuries Wife sustained amounted to “only trivial bodily injury.”
See id. § 76-1-601(3) (“‘Bodily injury’ means physical pain, illness,
or any impairment of physical condition.”).
¶35 Contrary to Finlayson’s assertion, “the State was not
required to establish that [Wife] actually suffered ‘serious bodily
injury’” in order to prove aggravated assault. See State v. Ekstrom,
2013 UT App 271, ¶ 12, 316 P.3d 435 (collecting cases). Rather, the
State only had to show that Finlayson “use[d] . . . means or force
likely to produce death or serious bodily injury.” See Utah Code
Ann. § 76-5-103(1)(b) (emphasis added). Here, the evidence was
sufficient to support such a conclusion. Finlayson and Wife both
testified that he forced Wife down a flight of stairs. Based on this
undisputed testimony, the trial court could readily conclude that
the degree of force Finlayson used was likely to cause “bodily
injury that creates or causes serious permanent disfigurement,
protracted loss or impairment of the function of any bodily
member or organ, or creates a substantial risk of death.” Id. § 76-1-
601(11); cf. Whitney v. Division of Juvenile Justice Servs., 2012 UT 12,
¶¶ 5–6, 274 P.3d 906 (addressing a certified question in a
negligence suit that stemmed from a juvenile’s death resulting from
injuries sustained from a fall down a flight of stairs); Benally v.
Robinson, 376 P.2d 388, 389 (Utah 1962) (considering an appeal in a
wrongful death action that resulted from the decedent’s fall down
a flight of stairs); State v. Tuckett, 2000 UT App 295, ¶¶ 1, 3, 13 P.3d
1060 (affirming a conviction of homicide by assault where the
20110906-CA 20 2014 UT App 282State v. Finlayson
defendant pushed the victim down a flight of stairs and the victim
died from the impact on the concrete floor). Indeed, Finlayson
himself testified that as he watched Wife falling down the stairs, he
“was frozen in horror” and “worried that she was going to break
her neck.” Notwithstanding the fact that Wife suffered only cuts
and bruises from the fall, Finlayson’s act of pushing Wife down the
flight of stairs is sufficient to establish that Finlayson used force
likely to produce death or serious bodily injury.
¶36 We conclude that there is sufficient evidence in the record to
support a finding that Finlayson committed an aggravated assault
when he pushed Wife down the stairs. Accordingly, we affirm
Finlayson’s conviction for aggravated assault.
B. Aggravated Kidnapping
¶37 Finlayson next argues that the evidence is insufficient to
support a conviction for aggravated kidnapping and that the
evidence would support, at most, a conviction for unlawful
detention. According to Finlayson, the sequence of events on the
night of May 21, 2010 was merely “mutual combat,” was
“relatively trivial conduct,” and “is not the stuff of aggravated
kidnapping.” We do not agree.
¶38 The State’s theory of aggravated kidnapping in this case
required it to prove that Finlayson, “in the course of committing
unlawful detention or kidnapping . . . act[ed] with intent . . . to
hinder or delay the discovery of or reporting of a felony” or “to
inflict bodily injury on or to terrorize the victim or another.” See
Utah Code Ann. § 76-5-302(1)(b)(iii), (iv) (LexisNexis Supp. 2013).
An unlawful detention occurs when “the actor intentionally or
knowingly, without authority of law, and against the will of the
victim, detains or restrains the victim,” id. § 76-5-304(1) (2012),
whereas a kidnapping occurs when “the actor intentionally or
knowingly, without authority of law, and against the will of the
victim[,] . . . detains or restrains the victim for any substantial
period of time” or “detains or restrains the victim in circumstances
exposing the victim to risk of bodily injury,” id. § 76-5-301(1)(a), (b).
Because aggravated kidnapping is committed “in the course of
20110906-CA 21 2014 UT App 282State v. Finlayson
committing unlawful detention or kidnapping,” the State was not
required to show that Finlayson detained Wife for a substantial
period of time, provided that the State presented sufficient
evidence that Finlayson acted with intent to hinder or delay the
discovery or reporting of a felony, or with the intent to inflict
bodily injury on or to terrorize the victim. See id. § 76-5-302(1)
(Supp. 2013); see also State v. Mecham, 2000 UT App 247, ¶ 31 n.10,
9 P.3d 777 (“[T]here is no ‘substantial period’ requirement in Utah’s
aggravated kidnaping statute, unlike Utah’s simple kidnaping
statute.”).
¶39 As to Finlayson’s intent to hinder the reporting of a felony,
the State proceeded on the theory that the underlying felony was
either aggravated assault or witness tampering. For an aggravated
assault to have occurred, as discussed supra ¶ 33, the State was
required to show that Finlayson committed an assault and, in so
doing, used “a dangerous weapon . . . or . . . other means or force
likely to produce death or serious bodily injury.” Utah Code Ann.
§ 76-5-103(1)(b) (LexisNexis 2012). And for witness tampering to
have occurred, the State was required to show that Finlayson,
“believing that an official proceeding or investigation is pending or
about to be instituted, or with the intent to prevent an official
proceeding or investigation, . . . attempt[ed] to induce or otherwise
cause another person to . . . testify or inform falsely; [or] . . .
withhold any testimony, information, document or item.” See id.§ 76-8-508(1)(a), (b).
¶40 The evidence is sufficient to show that Finlayson restrained
Wife with the intent to hinder or delay the discovery or reporting
of a felony—whether the underlying felony is viewed as assault or
witness tampering, either one supports Finlayson’s conviction for
aggravated kidnapping. First, the State presented sufficient
evidence that Finlayson acted with the intent to hinder or delay the
reporting of an aggravated assault. We have already determined
that there is sufficient evidence that Finlayson committed an
aggravated assault when he pushed Wife down the flight of stairs.
See supra ¶¶ 33–36. Finlayson’s intent to hinder the reporting of this
felony is established by Wife’s testimony that after she landed at
the bottom of the stairs, Finlayson strangled her while threatening
20110906-CA 22 2014 UT App 282State v. Finlayson
to kill her and telling her, “If you promise not to tell anybody I’ll let
you go.” Wife also testified that after she made that promise,
Finlayson sat on her, preventing her from leaving, and reiterated
that he could not go back to prison. This evidence is sufficient to
support a finding that Finlayson restrained Wife against her will
with the intent to prevent her from reporting an aggravated
assault.
¶41 Second, the State presented sufficient evidence that
Finlayson acted with the intent to hinder or delay the reporting of
witness tampering. Finlayson does not dispute that at the time of
these events, he was on parole for crimes he had committed
sometime earlier. Wife testified that as they were wrestling on the
floor, she told Finlayson, “I’m going to call the police, I’m going to
call your parole officer.” Wife indicated that at this point, “things
kind of shifted” and led to Finlayson strangling her, threatening to
kill her, taking her phone, and blocking her when she attempted to
escape. This evidence is sufficient to show that Finlayson acted
“with the intent to prevent an official proceeding or investigation”
and “attempt[ed] to induce or otherwise cause [Wife] to . . .
withhold . . . information” from the police and his parole officer.16
See Utah Code Ann. § 76-8-508(1)(b). As with the aggravated
assault, Wife’s testimony that Finlayson restrained her at the
bottom of the stairs and would not let her go until she promised
not to report him to authorities is sufficient to sustain a finding that
Finlayson detained Wife with intent to prevent her from reporting
the crime of witness tampering.
¶42 The evidence is also sufficient to support Finlayson’s
conviction under the other variants of aggravated kidnapping, i.e.,
based on Finlayson’s intent to inflict bodily injury on or to terrorize
Wife. First, the State introduced sufficient evidence that Finlayson
16. We are also not persuaded by Finlayson’s argument that his
“only intent . . . was to temporarily not let [Wife] call his parole
officer.” (Emphasis added.) And Wife’s later reporting of
Finlayson’s conduct does not defeat a finding that Finlayson acted
with the intent to hinder or delay the reporting or discovery of a
felony.
20110906-CA 23 2014 UT App 282State v. Finlayson
acted with intent to inflict bodily injury, i.e., intent to inflict
“physical pain, illness, or any impairment of physical condition.”
See Utah Code Ann. § 76-1-601(3) (LexisNexis 2012). Wife testified
that Finlayson hit and strangled her, prevented her from exiting
through the front and back doors of the home, shoved her down
the stairs, and sat on her. This testimony is sufficient to support a
finding that Finlayson detained her against her will while acting
with the intent to inflict bodily injury.
¶43 Second, the State introduced sufficient evidence that
Finlayson acted with intent to terrorize Wife. Although “terrorize”
is not specifically defined in the aggravated kidnapping statute,
another section of the criminal code defines “[i]ntimidate or
terrorize” as “an act which causes the person to fear for his physical
safety or damages the property of that person or another.” Utah
Code Ann. § 76-3-203.3(3) (LexisNexis 2012) (setting forth the
penalty for hate crimes). The word “terrorize” also means “to cause
(someone) to be extremely afraid” or “to force (someone) to do
something by using threats or violence.” Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/terrorize (last visited
Oct. 20, 2014); see also State v. Bagnes, 2014 UT 4, ¶ 14, 322 P.3d 719(“A starting point for our assessment of ordinary meaning is the
dictionary.”).
¶44 Based on these definitions, Wife’s testimony that Finlayson
threatened her life while keeping her from leaving the home is
sufficient to establish that Finlayson acted with intent to cause her
to be “extremely afraid.” Moreover, Wife testified that while
making threats and strangling her, Finlayson pressured Wife into
promising not to call his parole officer. This testimony also
sufficiently supports a finding that Finlayson detained Wife against
her will while acting with the intent to terrorize Wife.
¶45 In summary, there is sufficient evidence to sustain
Finlayson’s conviction for aggravated kidnapping under several
variants of the crime. We therefore conclude that the State
presented sufficient evidence at trial to support the trial court’s
findings that Finlayson committed both aggravated assault and
20110906-CA 24 2014 UT App 282State v. Finlayson
aggravated kidnapping.17 We now turn to the question of whether
these convictions should have been merged.
IV. Merger
¶46 Finlayson argues that the trial court erred in refusing to
merge his convictions for aggravated kidnapping and aggravated
assault. Finlayson asserts that the detention was incidental to and
indistinguishable from the kidnapping and that the aggravated
kidnapping charge “should therefore have been merged into the
aggravated assault.” In response, the State argues that merger does
17. Finlayson also argues that his conduct was trivial and therefore
“the maxim de minimis non curat lex should . . . be employed in
the instant matter.” “De minimis non curat lex” stands for the
proposition that “[t]he law does not concern itself with trifles.”
Black’s Law Dictionary 496 (9th ed. 2009). Finlayson has not
identified in the record where he preserved this argument, see Utah
R. App. P. 24(a)(5)(A) (requiring the appellant to provide a
“citation to the record showing that the issue was preserved in the
trial court”), and we have not ascertained from our own review of
the record that the trial court was ever presented with or
considered the doctrine of de minimis non curat lex, see State v.
Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (“Utah courts require specific
objections in order to bring all claimed errors to the trial court’s
attention to give the court an opportunity to correct the errors if
appropriate.” (citation and internal quotation marks omitted)).
“Where there is no clear or specific objection and the specific
ground for objection is not clear from the context[,] the theory
cannot be raised on appeal.” Id. (alteration in original) (citation and
internal quotation marks omitted). Because Finlayson did not bring
the de minimis non curat lex argument to the trial court’s attention,
he has not preserved the issue for appeal. Regardless, given our
conclusions that the evidence is sufficient to support Finlayson’s
convictions for aggravated kidnapping and aggravated assault, see
supra ¶¶ 35–36, 40–45, we could hardly conclude that his conduct
was merely trivial.
20110906-CA 25 2014 UT App 282State v. Finlayson
not apply here because the aggravated kidnapping was not done
to facilitate the aggravated assault.18
¶47 “Courts apply the merger doctrine as one means of
alleviating the concern of double jeopardy that a defendant should
18. The State also argues that merger does not apply because the
aggravated assault did not involve any period of detention. The
State argues that “merger applies only to the very narrow category
of cases in which, in addition to kidnapping, the defendant is
convicted of another crime that involves a ‘necessary’ or ‘inherent’
period of detention.” (Citing State v. Finlayson, 2000 UT 10, ¶ 19,
994 P.2d 1243.) We, however, analyze merger in a larger context
here because the Utah Supreme Court has indicated that “a proper
merger analysis requires consideration of both [the lesser included
offense statute]” and the three factors set forth in State v. Finlayson,
2000 UT 10, 994 P.2d 1243. State v. Lee, 2006 UT 5, ¶ 32, 128 P.3d
1179; see also Utah Code Ann. § 76-1-402(3) (LexisNexis 2012) (“An
offense is . . . included when: (a) It is established by proof of the
same or less than all the facts required to establish the commission
of the offense charged; or (b) It constitutes an attempt, solicitation,
conspiracy, or form of preparation to commit the offense charged
or an offense otherwise included therein; or (c) It is specifically
designated by a statute as a lesser included offense.”). “If one
conviction is a lesser included offense of another conviction under
section 76-1-402, the convictions merge. If not, the Finlayson factors
must be assessed to determine whether merger is appropriate.” Lee,
2006 UT 5, ¶ 32; see also State v. Lopez, 2001 UT App 123, ¶¶ 12–16,
24 P.3d 993 (applying the Finlayson factors to an aggravated
kidnapping and aggravated assault case). But see State v. Pierson,
2000 UT App 274, ¶ 20, 12 P.3d 103 (applying the Finlayson factors
and concluding that because “the crime of aggravated burglary can
be completed upon entry of the building, and detention is inherent
in neither the definition of aggravated burglary nor under the facts
of this case,” the burglary and kidnapping convictions did not
merge). In Lee, a case involving charges similar to the ones in this
case, our supreme court held that “aggravated kidnaping is not a
lesser included offense of aggravated assault under section 76-1-
402.” 2006 UT 5, ¶ 33.
20110906-CA 26 2014 UT App 282State v. Finlayson
not be punished twice for the same crime.” State v. Lopez, 2004 UT
App 410, ¶ 8, 103 P.3d 153. “Merger 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.” State v. Diaz, 2002 UT
App 288, ¶ 17, 55 P.3d 1131. “‘[W]hen a kidnaping occurs under
circumstances involving a charged companion criminal
activity’—such as aggravated assault—if the ‘kidnaping was not
“merely incidental or subsidiary to [the companion] crime,”’
separate convictions can be supported.” State v. Garrido, 2013 UT
App 245, ¶ 34, 314 P.3d 1014 (second alteration in original) (quoting
Diaz, 2002 UT App 288, ¶ 19).
¶48 Utah courts have utilized a three-part test to determine if
kidnapping merges with another crime:
[I]f a taking or confinement is alleged to have been
done to facilitate the commission of another crime, to
be kidnaping the resulting movement or
confinement:
(a) Must not be slight, inconsequential and
merely incidental to the other crime;
(b) Must not be of the kind inherent in the
nature of the other crime; and
(c) Must have some significance independent
of the other crime in that it makes the other crime
substantially easier of commission or substantially
lessens the risk of detection.[19]
19. The Finlayson analytic framework applies even when a
defendant is charged under different permutations of aggravated
kidnapping. See State v. Lopez, 2001 UT App 123, ¶ 12 n.3, 24 P.3d
993. In other words, the Finlayson test applies whether the
defendant acted with intent to facilitate the commission of a felony,
to hinder or delay the reporting of a felony, or to inflict bodily
injury on or to terrorize the victim. See Utah Code Ann. § 76-5-
302(1) (LexisNexis Supp. 2013).
20110906-CA 27 2014 UT App 282State v. Finlayson
State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243 (first alteration in
original) (citation and internal quotation marks omitted). “[T]he
third prong . . . contains the qualification that the kidnaping must
make the other crime substantially easier of commission or
substantially lessen[] the risk of detection.” State v. Lopez, 2001 UT
App 123, ¶ 16, 24 P.3d 993 (second alteration in original) (citation
and internal quotation marks omitted). However, we have
previously explained that “these are not necessarily words of
limitation because there may be instances . . . in which the
kidnaping and the ‘other crime’ are virtually independent of one
another.” Id. “In such instances, it is irrelevant whether or not the
kidnaping made the other crime substantially easier of commission
or substantially lessen[ed] the risk of detection because the facts
had independent significance sufficient to support a separate
conviction for aggravated kidnaping.” Id. (citation and internal
quotation marks omitted). “Should the State fail to demonstrate
any one of [the Finlayson] elements, the detention must then be
considered incidental to the companion crime, and the detention
will merge into the companion crime.” Diaz, 2002 UT App 288,
¶ 22.
¶49 This court’s decision in State v. Lopez, 2001 UT App 123, 24
P.3d 993, illustrates the application of the Finlayson test when a
defendant argues that an aggravated kidnapping charge should
merge with a conviction for aggravated assault. See id. ¶¶ 12–16. In
Lopez, the defendant broke into the victim’s apartment, placed a
knife to the victim’s throat, and dragged her out of the apartment.
Id. ¶ 6. From there, the defendant placed the victim in a headlock
and dragged her down the stairs and to a parking lot. Id. ¶ 7. As
the defendant tried to force the victim into his car, he stabbed the
victim repeatedly until the defendant was restrained by neighbors.
Id. A jury convicted the defendant of aggravated kidnapping and
aggravated assault, and the defendant argued on appeal that the
trial court should have merged his convictions. Id. ¶¶ 8–9.
¶50 In applying the Finlayson test to that case, this court first
concluded that the defendant’s movement of the victim “was
neither inconsequential nor incidental to the assault.” Id. ¶ 13. This
court did not regard the defendant’s confinement and movement
20110906-CA 28 2014 UT App 282State v. Finlayson
of the victim as inconsequential, because he “placed [the victim] in
a headlock and dragged her down a flight of stairs, around the
apartment building, and down a sidewalk . . . [and then he] tried
to force [the victim] into his truck.” Id. This court was also not
persuaded that the defendant’s detention and movement of the
victim were incidental to the aggravated assault because the
defendant “could have stabbed [the victim] at any point after he
grabbed the knife without confining or moving her.” Id. Second,
and for the same reasons, this court determined that the
defendant’s movement and confinement of the victim were not
inherent in the aggravated assault. Id. ¶ 14. Third, this court
concluded that “the confinement and movement had significance
independent of the aggravated assault,” pointing to the
defendant’s movement of the victim “away from the site of the
initial disturbance to the . . . parking area” and his attempt to put
the victim in his truck. Id. ¶ 15. As we explained, because the
defendant “did not need to do any of these acts to assault [the
victim] with a knife,” the defendant’s confinement and movement
of the victim had significance independent of the stabbing. Id. We
therefore affirmed the trial court’s refusal to merge the defendant’s
aggravated kidnapping and aggravated assault convictions. Id.
¶ 20.
¶51 Applying the Finlayson test to the facts of this case, we are
not persuaded that the trial court erred in failing to merge
Finlayson’s conviction for aggravated kidnapping and his
conviction for aggravated assault. As to the first prong, we are not
convinced that Finlayson’s confinement of Wife was slight,
inconsequential, and merely incidental to the aggravated assault.
Finlayson’s detention of Wife was not inconsequential, because he
kept Wife from leaving the home through the front and back doors
and he restrained her by sitting on top of her. Nor was the
detention incidental to the aggravated assault, because Finlayson
could have pushed Wife down the stairs without thereafter sitting
on her. Moreover, Finlayson did not hold Wife against her will for
only so long as necessary to complete the aggravated assault of
throwing her down the stairs. See Garrido, 2013 UT App 245, ¶ 34
(noting that the defendant’s holding the victim against her will all
night long was “not merely incidental to the aggravated assault”
20110906-CA 29 2014 UT App 282State v. Finlayson
because he did not just hold the victim as long as was necessary to
complete the aggravated assault).
¶52 As to the second prong, we do not agree with Finlayson that
his detention of Wife was “merely a component” of or inherent in
the nature of the aggravated assault. Rather, Finlayson could have
thrown Wife down the stairs without the type of confinement that
took place. And as to the third prong, the detention involved here
had significance independent of the aggravated assault because
Finlayson did not need to prevent Wife from leaving the house for
nearly an hour in order to complete the act of hurling her down the
stairs.
¶53 We conclude that Finlayson’s confinement of Wife was not
slight, inconsequential, and merely incidental to the aggravated
assault, that it was not inherent in the nature of the aggravated
assault, and that it had independent significance. We therefore
affirm the trial court’s refusal to merge Finlayson’s separate
convictions for aggravated kidnapping and aggravated assault.
V. Constitutional Challenge
¶54 Finally, Finlayson raises a challenge to the aggravated
assault statute, arguing that it is unconstitutionally vague because
it “lack[s] objective criteria to delineate among the . . . possible
degrees of injury.” Because Finlayson did not preserve this issue
for appeal, he relies on the exceptional circumstances exception to
the preservation rule.
¶55 The “‘preservation rule applies to every claim, including
constitutional questions, unless a defendant can demonstrate that
“exceptional circumstances” exist or “plain error” occurred.’” State
v. Pullman, 2013 UT App 168, ¶ 6, 306 P.3d 827 (quoting State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346). “The exceptional
circumstances exception is ill-defined . . . and applies primarily to
rare procedural anomalies.” Id. ¶ 27 (omission in original) (citation
and internal quotation marks omitted). According to Finlayson, he
had “no genuine opportunity” to raise his constitutional argument
due to his own self-representation and the involvement of trial
counsel and standby counsel, and he contends that this “chaos of
20110906-CA 30 2014 UT App 282State v. Finlayson
the back and forth of counsel” presents exceptional circumstances.
However, Finlayson does not explain how this situation is
exceptional, rare, or anomalous, and he does not cite any case law
analyzing the exceptional circumstances exception and its
parameters. See id. Accordingly, Finlayson has not persuaded us
that exceptional circumstances exist that would justify our review
of this constitutional issue.20
CONCLUSION
¶56 We deny Finlayson’s motion to remand because Finlayson
has not met the requirements for remand under rule 23B of the
Utah Rules of Appellate Procedure. We conclude that the trial court
did not plainly err in accepting Finlayson’s waiver of his right to a
jury trial. We also conclude that the evidence is sufficient to
support Finlayson’s convictions for both aggravated kidnapping
and aggravated assault and that the trial court did not err in failing
to merge the two convictions. Finally, exceptional circumstances
that would permit our consideration of Finlayson’s constitutional
argument concerning the aggravated assault statute are not
present. We therefore affirm.
20. In making his constitutional argument, Finlayson also cites the
elements of plain error. See State v. Dunn, 850 P.2d 1201, 1208 (Utah
1993) (explaining that the doctrine of plain error requires an
appellant to show that an error exists, that the error should have
been obvious to the trial court, and that the error is harmful).
However, given that the criminal code defines “bodily injury,”
“serious bodily injury,” and “substantial bodily injury” with
specificity, see Utah Code Ann. § 76-1-601(3), (11), (12) (LexisNexis
2012), we cannot say that the trial court committed any obvious
error in interpreting the aggravated assault statute, see State v.
Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (stating that to demonstrate
obvious error, an appellant “must show that the law governing the
error was clear at the time the alleged error was made”).
20110906-CA 31 2014 UT App 282