State v. Wright , 442 P.3d 1185 ( 2019 )

2019 UT App 66THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BLAKE REES WRIGHT,
Appellant.
Opinion
No. 20150153-CA
Filed April 25, 2019
Fourth District Court, Nephi Department
The Honorable James R. Taylor
No. 111600138
Nathan E. Burdsal, Robert C. Avery, and
Hutch U. Fale, Attorneys for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Defendant Blake Rees Wright challenges his guilty plea to
aggravated kidnapping, a first-degree felony; attempted murder
and aggravated elder abuse, both second-degree felonies; and
obstruction of justice, witness retaliation, possession of
ammunition in a correctional facility, unlawful discharge of a
firearm, and possession of a firearm by a restricted person, all
third-degree felonies. Defendant argues, among other things,
that his trial counsel provided ineffective assistance. Apart from
his aggravated kidnapping conviction, which we vacate and in
connection with which we remand for further proceedings, we
affirm his convictions and deny his request to withdraw his
guilty pleas.
State v. Wright
BACKGROUND
The Assault
¶2 Defendant, who lived with his mother (Mother),
instigated an argument with her about whether she had been
interfering with his prescription medications and telling other
people that he, a convicted felon, had access to a gun. Defendant
recorded the altercation with a video camera, apparently for the
purpose of making a video record of her “lies.”
¶3 A few minutes into the argument, Mother stood up,
intending to leave, but Defendant pushed her back into her
chair. Mother and Defendant continued to argue, and Defendant
told Mother that he “could fuckin’ put a bullet in [her] fuckin’
head and not even think twice about it.” Mother admitted that
she had told someone that he had a gun. She then shoved
Defendant, knocking the video camera out of his hands.
Although Defendant and Mother are no longer visible on the
recording, a subsequent assault can be heard in the background.
¶4 Mother testified that Defendant hit her “hard” with “both
hands” for what “felt like forever.” He also put her in a headlock
and squeezed her until it “felt like something was breaking.”
After releasing Mother, Defendant took a piece of glass from a
coffee table that had been broken during the attack and
brandished it over Mother, making her think it was “all over.” In
the video recording, Defendant is heard saying, “You, fuckin’,
you oughta get your fuckin’ hands off you old bitch or I’ll
fuckin’ kill you, to death. I’ll choke you to death.” As Mother
pleads with Defendant to stop, he tells her he is going to “beat
[her] to death,” “kill [her],” and that the beating was “just a taste
[of] what [she was] going to get.” Defendant then stops the
recording.
¶5 For a few hours, Defendant left Mother alone and the two
were not together. But once again Defendant became upset with
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Mother for interfering with his prescription medications.
Defendant then got a gun, pointed it at her head and ordered her
to call 911. He told her he was “not kidding around” and he
“could shoot [her] leg,” and then he shot two bullets into the
floor. Subsequently, Defendant grabbed Mother by the legs and
pulled her out of the chair. She fell to the floor and “could hear”
her ribs cracking. Mother eventually got back on the chair and
stayed there “because it was so painful that [she] couldn’t do
anything else.”
¶6 Unable to tolerate the pain anymore, Mother asked
Defendant to open the garage door so that she could go to the
hospital. She asked him three times to open the garage door
before he complied with her request. Before Mother left,
Defendant asked her what she was going to say at the hospital,
and she told him that she would tell the hospital staff she fell off
the cement steps.
¶7 Defendant followed Mother to the hospital. Approaching
her in the emergency room area, he lifted up his coat “to show
[her] that he had [a] gun.” When the emergency room doctor
(First Doctor) examined Mother, she told him that she had fallen
off the front porch steps. First Doctor recommended that Mother
stay the night, but Mother was worried that Defendant would
hurt other people, so she returned home.
¶8 The next day, when her daughter picked her up, Mother
told her that Defendant had attacked and “pistol whipped” her.
After a few days at her daughter’s home, Mother was still in a lot
of pain and returned to the hospital. A doctor (Second Doctor)
examined her and determined that she had a subdural
hematoma and edema—bleeding between the brain and the
skull and swelling of the brain. Another doctor confirmed the
diagnosis with an MRI that showed a subdural hematoma and
“[shear] injury” to Mother’s brain. Mother also had a bruised
spleen and four broken ribs.
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¶9 Officers arrested Defendant. Defendant, smiling at an
officer said, “You guys didn’t even find the gun, did you?” But
officers found a fully loaded .22 caliber gun hidden at the house,
and Defendant unsuccessfully tried to dispose of .22 caliber
ammunition at the jail. Defendant’s sister later found the video
recording and turned it over to the police. Defendant was
charged as noted above, see supra ¶ 1, and the case proceeded to
trial.
The Trial
¶10 On the first day of trial, Defendant requested a
continuance, seeking new counsel. The district court, unaware of
any conflict between Defendant and his counsel (Trial Counsel),
asked Trial Counsel about the conflict. Trial Counsel replied that
it would be better for “additional counsel [to] come in the case,”
based on the “complexity of the case” and given the number of
counts and his “relationship with [Defendant].” Trial Counsel
indicated that Defendant “want[ed him] to continue to work on
the case” and appreciated counsel’s efforts, but Defendant
wanted “an attorney of his own that he’s selected to join in and
be lead counsel.” The State pointed out that Trial Counsel was a
“very experienced attorney” who had “tried a number of very
difficult cases” that were “much more complicated and much
more serious than” Defendant’s case, and he had the necessary
skill and experience to try the case on his own. The court denied
the continuance request, stating that Defendant should have
made the request “months ago” instead of on the first day of
trial. It also denied Trial Counsel’s request for additional
counsel.
¶11 Three days into the trial, and after having viewed
the video recording made by Defendant, the jury heard
detailed testimony from Mother about the assault. After
Mother’s testimony, Trial Counsel requested additional time
during the break. After returning from this break, the parties
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announced that Defendant would plead guilty as charged, but
the State would amend the aggravated kidnapping count by
removing the serious bodily injury allegation which would
reduce the maximum sentence from life without parole to 15
years to life. See Utah Code Ann. § 76-5-302(3)(a)‒(b) (LexisNexis
2017).
¶12 Defendant signed a plea statement, listing the rights
that he was waiving, including his right to a trial at which
the State would have “the burden of proving, beyond a
reasonable doubt, what are called ‘elements’ of the offense (or
offenses) charged.” The district court conducted a plea colloquy
to ensure that Defendant understood his guilty plea. During the
colloquy, Defendant acknowledged that he had read and
understood the plea agreement and the rights he was waiving,
had no questions about it and required no further explanation of
it, and was “acting freely and voluntarily” in entering his guilty
plea.
The Plea Withdrawal Hearing
¶13 A few days later, Defendant wrote a letter to the district
court seeking to withdraw his guilty plea. Although the pro se
motion was filed before sentencing, the district court failed to
address it and proceeded with sentencing. Defendant appealed
and this court summarily reversed Defendant’s sentence and
remanded the matter to the district court to address the motion.
See id. § 77-13-6(2)(b).
¶14 On remand, Defendant was appointed new counsel and
granted leave to amend his motion to withdraw his guilty plea.
In his amended motion, Defendant argued that his plea was not
made knowingly or voluntarily and that Trial Counsel provided
ineffective assistance. In an evidentiary hearing on these issues,
Defendant testified that he pled guilty because Trial Counsel
was unprepared for trial and he felt forced to take the plea deal.
But Trial Counsel contradicted this testimony, stating that he
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had met with Defendant multiple times, interviewed the
witnesses, visited the crime scene, and reviewed the evidence.
Trial Counsel further testified that, after Mother testified at trial,
Defendant did not want her to be cross-examined because “she’d
been through enough” and Defendant had seen “the entire jury
was in tears.” Defendant also told Trial Counsel that he was
“going to be convicted,” a conclusion with which Trial Counsel
apparently did not disagree. Trial Counsel then asked Defendant
if he wanted to seek a plea deal, and Defendant told him that he
did.
¶15 The district court determined that Trial Counsel’s
testimony was more consistent with the record and that
Defendant’s testimony was self-serving and “was contradicted
by the record.” Based on that determination, the court found that
Defendant was the one who sought a plea agreement, not Trial
Counsel, and that he was not “coerced or compelled to accept a
plea bargain.” It also concluded that the record established that
Defendant entered his plea knowingly and voluntarily and that
Trial Counsel’s performance “was not deficient” nor prejudicial
to Defendant.
¶16 Defendant was then sentenced to several prison terms,
some running consecutively and some running concurrently.
Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶17 Defendant raises two arguments on appeal. He first
argues that Trial Counsel provided ineffective assistance of
counsel in several ways, rendering his plea unknowing and
involuntary. With regard to those issues upon which the district
court found facts at the plea withdrawal hearing conducted at
our direction on remand following Defendant’s initial appeal,
our decision is informed by the court’s findings of fact. See State
v. King, 2017 UT App 43, ¶ 13, 392 P.3d 997. For those issues
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upon which the district court did not find facts, we review the
ineffectiveness issues for correctness, examining “whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” See Layton City v. Carr, 2014 UT App 227, ¶ 6,
336 P.3d 587. 1
¶18 Defendant also contends that cumulative errors made by
Trial Counsel allow the withdrawal of his guilty plea. “Under
the cumulative error doctrine, we will reverse only if the
cumulative effect of the several errors undermines our
confidence that a fair [proceeding] was had.” State v. Kohl, 2000
UT 35, ¶ 25, 999 P.2d 7 (quotation simplified).
ANALYSIS
I. Ineffective Assistance of Counsel
¶19 Defendant contends that his plea was unknowing and
involuntary because he either had to “plead guilty to crimes he
did not commit but have the chance of parole” or “continue with
trial and assuredly be convicted without the possibility of
parole.” He essentially argues that Trial Counsel provided such
deficient legal representation that Defendant had no choice but
to plead guilty to the crimes for which he was charged, raising
1. In relation to one of his ineffective assistance claims,
Defendant also argues that the district court failed to apply the
doctrine of merger to his aggravated kidnapping charge.
Because we reverse and vacate Defendant’s aggravated
kidnapping conviction, the issue is moot. There was a distinct
possibility of merger under the common-law merger test set
forth in State v. Finlayson, 2000 UT 10, 994 P.2d 1243, abrogated by
State v. Wilder, 2018 UT 17, 420 P.3d 1064, but in any event,
Defendant waived that argument by pleading guilty to the
aggravated kidnapping charge.
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six instances where Trial Counsel provided such deficient
representation and one instance in which his plea withdrawal
counsel did. 2
¶20 To prevail on a claim of ineffective assistance of counsel, a
defendant must show “that counsel’s performance was
deficient,” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In the
context of a guilty plea, “in order to satisfy the ‘prejudice’
requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” 3 Hill
v. Lockhart, 474 U.S. 52, 59 (1985). And allegations of ineffective
assistance “cannot be a speculative matter” and must be firmly
rooted in the record. Nicholls v. State, 2009 UT 12, ¶ 36, 203 P.3d
976 (quotation simplified).
A. Failure to Obtain Independent Medical Experts
¶21 Defendant contends that Trial Counsel failed to “follow
up with independent medical analysis” or call independent
2. Upon Defendant’s request, the district court appointed new
counsel to represent Defendant in the plea withdrawal hearing.
He is again represented by new attorneys on the current appeal.
3. There is no requirement that he additionally show he would
have received a more favorable outcome at trial. Compare Hill v.
Lockhart, 474 U.S. 52, 59 (1985) (requiring, in the context of a
guilty plea, that a defendant show he “would not have pleaded
guilty and would have insisted on going to trial”), with Strickland
v. Washington, 466 U.S. 668, 694 (1984) (requiring a defendant, in
the context of a flawed trial or other proceeding, to demonstrate
that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different”).
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medical experts at trial to demonstrate that Second Doctor’s
subdural hematoma diagnosis was incorrect. He asserts that
Mother’s injuries can occur “spontaneously” as a result of her
age and Trial Counsel should have followed up with a medical
expert to confirm this theory. Defendant raised this claim at the
plea withdrawal hearing, and the district court found that Trial
Counsel’s decision not to call “an additional medical expert” was
“a reasonable strategy choice.” The court determined that “a
neurologist or an additional medical expert” “would not have
made a significant difference to the outcome of the case” and
“Defendant has not presented any actual evidence that these
additional expert witnesses would have given ground shaking
testimony to contradict or undermine the testimony the medical
doctors gave in this case.”
¶22 Defendant does not point to evidence in the record
demonstrating that the court’s factual findings were clearly
erroneous. On appeal, a defendant “cannot ‘simply restate or
review evidence that points to an alternate finding or a
finding contrary to the trial court’s finding of fact.’” Salt Lake City
v. Reyes-Gutierrez, 2017 UT App 161, ¶ 25, 405 P.3d 781 (quoting
Ostermiller v. Ostermiller, 2010 UT 43, ¶ 20, 233 P.3d 489).
“Rather, to show clear error, he must identify the supporting
evidence and explain why the trial court’s factual finding
is nonetheless against the clear weight of the evidence.” Id. For
that reason, we defer to the district court’s finding that Trial
Counsel’s decision not to obtain an additional medical expert
was a reasonable strategic choice because Trial Counsel “could
make and argue the same points using the more credible
doctor witnesses the State had already subpoenaed.” We
conclude that Trial Counsel’s decision to forgo independent
medical experts does not constitute deficient performance, and
Defendant’s ineffective assistance of counsel claim therefore
fails.
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B. Failure to View or Investigate Evidence
¶23 Defendant contends that Trial Counsel did not view or
investigate critical evidence in his case. To begin with,
Defendant argues that Trial Counsel did not view the video
recording prior to the evidentiary hearing on his motion
to suppress or otherwise before trial and that Trial Counsel’s
motion in support lacked “legal authority or meaningful
analysis.” Had it not been for these errors, Defendant argues,
the motion would have been successful because his sister
conducted the warrantless, nonconsensual search on behalf of
the police. 4
¶24 At the plea withdrawal hearing, Trial Counsel stated that
he viewed the video with Defendant multiple times before trial.
It is not clear from the record whether Trial Counsel viewed the
video prior to the evidentiary hearing on the motion to suppress.
Nevertheless, the motion to suppress was futile. Trial Counsel
filed a supporting memorandum after the evidentiary hearing,
arguing that the video recording should be suppressed given
that it was the fruit of an unconstitutional search by Defendant’s
4. Defendant also argues that the video was altered, asserting
that numerous recordings were deleted from the camera. But
Defendant’s assertions are speculative and there is no evidence
in the record that the key video was altered or establishing how
deletion of the other recordings was prejudicial. At the plea
withdrawal hearing, Trial Counsel testified that Defendant told
him that the video had been altered, but that Defendant did not
know how, only that he “felt that the police had altered” it.
Defendant then told Trial Counsel that if he saw the entire video
he would know how it had been altered. After the suppression
hearing, where the entire video was played, Defendant no longer
objected to the video and Trial Counsel assumed the issue was
dropped.
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sister. While the district court concluded that Defendant’s sister
conducted the search, it determined there was no evidence that
this private search was done at the request of the police. And so,
even if Trial Counsel failed to watch the video recording prior to
the evidentiary hearing and his motion lacked “legal authority
or meaningful analysis,” it was not prejudicial to Defendant
given the futility of the motion premised on his sister acting as a
police agent.
¶25 Defendant next argues that Trial Counsel failed to
investigate ballistic and forensic evidence, asserting that it is not
possible for him to have shot the gun at the angle the State
claims he did, his fingerprints were not found on the gun, and
there is no evidence the gun was fired. He contends that Trial
Counsel should have hired an independent expert to testify to
these claimed inconsistencies. But these claims are speculative,
without any basis in the record, and are insufficient to overcome
the presumption that Trial Counsel provided effective assistance.
See Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[C]ounsel
is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.”).
¶26 Mother testified that Defendant shot the gun twice, which
was corroborated by bullet holes found by officers in the floor.
An officer also testified that upon Defendant’s arrest Defendant,
with a smile on his face, stated, “You guys didn’t even find the
gun, did you?” But officers found a .22 caliber handgun at the
house, and Defendant later unsuccessfully tried to dispose of .22
caliber ammunition, overlooked by the arresting officer during
the search of Defendant once he got to jail. In light of this
evidence, and given Trial Counsel’s testimony that he had
viewed the evidence and the crime scene prior to trial, we
presume Trial Counsel did not pursue ballistic and forensic
experts having concluded, in his “reasonable professional
judgment,” id., that such an exercise would be pointless. For
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these reasons, Defendant’s ineffective assistance of counsel
claim, premised on this ground, fails.
C. Failure to Advise Defendant on the Sufficiency of the
Evidence
¶27 Defendant contends that he should be allowed to
withdraw his guilty pleas to possession of ammunition in a
correctional facility, attempted murder, and aggravated
kidnapping because Trial Counsel “failed to provide competent
legal advice” on the insufficiency of the evidence supporting
these charges.
¶28 Determining that it was Defendant’s request that Trial
Counsel seek a plea agreement after hearing Mother’s testimony
and seeing the jurors in tears, the district court found that
Defendant was “not coerced or compelled to accept a plea
bargain.” And because there was compliance with rule 11 of the
Utah Rules of Criminal Procedure, including a factual basis,
“provided by both the opening statement and the subsequent
witnesses and exhibits that were presented to the court over two
and one half days of testimony,” the court concluded that
Defendant “entered his pleas knowingly and voluntarily.” See
Utah R. Crim. P. 11(e)(4)(B) (requiring that the court may not
accept a plea until “there is a factual basis for the plea,”
including “that the prosecution has sufficient evidence to
establish a substantial risk of conviction”).
¶29 Defendant argues that his guilty plea was not “knowing
and voluntary” because Trial Counsel failed to advise him that
no sufficient factual basis supported the possession of
ammunition in a correctional facility, attempted murder, and
aggravated kidnapping charges. See Hill v. Lockhart, 474 U.S. 52,
56 (1985) (stating that because “a defendant is represented by
counsel during the plea process and enters his plea upon the
advice of counsel, the voluntariness of the plea depends on
whether counsel’s advice was within the range of competence
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demanded of attorneys in criminal cases”) (quotation
simplified). We address each claim in turn and conclude that
Defendant’s guilty plea to these charges was knowingly and
voluntarily made, with the exception of his guilty plea to
aggravated kidnapping where Trial Counsel erred in failing to
raise any objection or to advise Defendant on the insufficient
evidence supporting the element of “detention.”
¶30 On an ineffective assistance of counsel claim, a convicted
“defendant must show that counsel’s representation fell below
an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). However, we “indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.”
Id. at 689 (quotation simplified). This standard “is a most
deferential one,” Harrington v. Richter, 562 U.S. 86, 105 (2011),
because “[e]ven the best criminal defense attorneys would not
defend a particular client in the same way,” Strickland, 466 U.S.
at 689. Therefore, “the question is whether an attorney’s
representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best practices
or most common custom.” Harrington, 562 U.S at 105 (quotation
simplified). But even supposing counsel erred, a defendant
“must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances.”
Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
1. Possession of Ammunition in a Correctional Facility
¶31 Defendant contends that Trial Counsel failed to advise
him that he had an entrapment defense to the charge of
possession of ammunition in a correctional facility. To prove that
charge, the State had to establish that Defendant knowingly
possessed the ammunition he tried to get rid of at the jail. See
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Utah Code Ann. § 76-8-311.3(4)(d) (LexisNexis 2017). See also id.
§ 76-2-103(2) (providing that a “person acts knowingly . . . when
he is aware that his conduct is reasonably certain to cause the
result”). When Defendant was arrested, the arresting officer
searched Defendant for weapons before taking him to jail. At the
jail, officers asked Defendant to empty his pockets. He started
tossing items into a garbage can, and officers discovered he was
trying to dispose of .22 caliber bullets.
¶32 The State concedes that it would have been “the preferred
course of action and good police practice” to have found the
ammunition when Defendant was searched incident to arrest,
before he arrived at the jail. But the arresting officer testified that
in searching Defendant for weapons, he did not discover the .22
caliber bullets. More importantly, Defendant would have been
aware he could not have ammunition in the jail because there
was a sign at the entrance of the jail stating, “NO FIREARMS
ALLOWED IN THE JAIL[.] This includes: Ammunition, Knives,
or Chemical sprays.” A second sign stated, “No Contraband
Allowed In Jail[.] Any unauthorized contraband brought into
this jail may result in additional charges against you. [Y]ou
should make known to the jailer all possessions you bring into
the jail.” Defendant therefore should have notified officers that
he needed to divest himself of the bullets prior to entering the
jail, but he did not. Instead, he entered the jail and then tried to
dispose of the .22 caliber bullets in a garbage can, presumably
because he did not want officers to discover evidence linking
him to the gun.
¶33 Defendant contends that officers put the ammunition in
his pockets and he “attempted to dispose of the ammunition at
the first opportunity.” “Entrapment occurs when a peace officer
. . . induces the commission of an offense . . . by methods
creating a substantial risk that the offense would be committed
by one not otherwise ready to commit it. Conduct merely
affording a person an opportunity to commit an offense does not
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constitute entrapment.” Id. § 76-2-303(1). There is no evidence in
the record that the arresting officer or officers at the jail knew
Defendant had ammunition with him prior to his entering the
jail or that officers planted the ammunition on Defendant. There
was sufficient evidence to support a conviction for possession of
ammunition in a correctional facility, and we assume Trial
Counsel concluded that trying an entrapment defense would not
be successful. See Harrington v. Richter, 562 U.S. 86, 107 (2011)
(“Counsel was entitled to formulate a strategy that was
reasonable at the time and to balance limited resources in accord
with effective trial tactics and strategies.”). Therefore,
Defendant’s ineffective assistance of counsel claim on this
ground also fails.
2. Attempted Murder
¶34 Defendant argues that he could not have committed
attempted murder because there is insufficient evidence to show
that he intended to cause Mother serious bodily injury or death.
To prove attempted murder, the State bore the burden of
establishing that Defendant “engage[d] in conduct constituting a
substantial step toward commission of” murder and intended to
commit the crime or “act[ed] with an awareness that his conduct
[was] reasonably certain to cause that result.” Utah Code Ann.
§ 76-4-101(1) (LexisNexis 2017). See also id. § 76-5-203(2)(a)‒(b)
(“Criminal homicide constitutes murder if . . . the actor
intentionally or knowingly causes the death of another [or,]
intending to cause serious bodily injury to another, the actor
commits an act clearly dangerous to human life that causes the
death of another”); State v. Casey, 2003 UT 55, ¶ 38, 82 P.3d 1106(stating that for attempted murder the State “must show that the
defendant acted intentionally”).
¶35 At trial, the State provided sufficient evidence that
Defendant intended to kill Mother and took a “substantial step”
toward doing so. Prior to and during the assault, Defendant
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threatened that he would “beat [Mother] to death.” He added: “I
could fuckin’ put a bullet in your fuckin’ head and not even
think twice about it. You fuckin’ whore”; “You fuckin’, you
oughta get your fuckin’ hands off you old bitch or I’ll fuckin’ kill
you, to death. I’ll choke you to death”; “I’ll beat you to death”;
and “Yeah, I kill you.” There is nothing to suggest he was only
kidding. On the contrary, he specifically told Mother that he was
not kidding. Mother testified that Defendant hit her with both
hands for what “felt like forever,” put her in a headlock and
choked her until it “felt like something was breaking,”
threatened her with a glass shard, put a gun to her head, pulled
her out of her chair hard enough that she heard her ribs break,
and shot two bullets into the floor. Defendant’s threats
established his intent to kill Mother, or so the jury might well
have concluded, and he acted in a manner consistent with those
threats, as Mother testified, demonstrating that Defendant
“engag[ed] in conduct constituting a substantial step toward
commission of the crime.” 5 Utah Code Ann. § 76-4-101(1)(a). See
id. § 76-4-101(2) (providing that “conduct constitutes a
substantial step if it strongly corroborates the actor’s mental
state”).
¶36 With the video recording and Mother’s testimony, the
State had sufficient evidence to establish the elements of
attempted murder. And given the overwhelming evidence of
Defendant’s guilt on the attempted murder charge, Defendant
fails to demonstrate that it would have been reasonable for him
to reject a plea deal and proceed to trial on that charge.
5. Defendant argues there is no evidence that he attempted to kill
Mother because the ballistic and forensic “evidence” is contrary
to Mother’s testimony. But Defendant’s purported ballistic and
forensic evidence is entirely speculative, and Mother’s testimony
and the video recording were ample evidence to support the
charge of attempted murder.
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Defendant’s ineffective assistance of counsel claim on this
ground also fails.
3. Aggravated Kidnapping
¶37 Defendant argues that he could not have committed
aggravated kidnapping because there is insufficient evidence to
show he detained Mother. To prove aggravated kidnapping, the
State had to establish that “in the course of committing unlawful
detention or kidnapping,” Defendant “possesse[d], use[d], or
threaten[ed] to use a dangerous weapon,” or intended “to inflict
bodily injury on or to terrorize [Mother]” or “to hinder or delay
the discovery of or reporting of a felony.” Utah Code Ann.
§ 76-5-302(1) (LexisNexis 2017). As is relevant here, the Utah
Code defines kidnapping and unlawful detention as detaining or
restraining the victim “intentionally or knowingly, without
authority of law, and against the will of the victim.” Id.
§ 76-5-301(1), -304(1). And although the kidnapping statute may
require the State to prove the defendant “detain[ed] or
restrain[ed] the victim for any substantial period of time,” id.
§ 76-5-301(1)(a) (emphasis added), the unlawful detention statute
does not.
¶38 “[T]o 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.” State v. Wilder, 2016 UT App 210,
¶ 20, 387 P.3d 512, aff’d on other grounds, 2018 UT 17, 420 P.3d
1064. As we determined in Wilder, “‘detains or restrains’ refers to
restriction of the victim’s movement, but neither definition
requires . . . complete confinement or imprisonment.” Id. ¶ 21.
See Detain, Webster’s Third New International Dictionary 616
(1993) (“to hold or keep in or as if in custody” or “to restrain
[especially] from proceeding”); Restrain, Webster’s Third New
International Dictionary 1936 (1993) (“to hold (as a person) back
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from some action, procedure, or course” or “to deprive of
liberty”). For that reason, the State need only prove that
“Defendant intentionally acted, however briefly, to impair the
victim’s ability to move freely.” Wilder, 2016 UT App 210, ¶ 22.
¶39 Here, the State argues that there were two detentions:
(1) Defendant pushed Mother back into the chair, and
(2) Defendant would not let her leave the house to go to the
hospital. We disagree with both contentions.
¶40 First, Defendant pushing Mother back into her chair is not
sufficient to support a finding of detention. The push was
incident to the ongoing assault. Defendant and Mother were
arguing and when Mother stood up to walk away, Defendant
pushed her back down into the chair. Defendant then shouted,
“[W]hy did you fuckin’ accuse me of stealing my Dad’s stuff
when I came home the other day?” The context of Defendant’s
action indicates that the push was assaultive rather than
restrictive. See Utah Code Ann. § 76-5-102(1)(a) (defining assault
as “an attempt, with unlawful force or violence, to do bodily
injury to another”). And we are not persuaded that Defendant
intended to detain Mother. The video recording displays no
other actions taken by Defendant to suggest that he intended to
impair Mother’s ability to move. Cf. Wilder, 2016 UT App 210,
¶¶ 6, 22 (holding a reasonable jury could have inferred a
detention occurred where the defendant followed the victim into
the hallway, grabbed her hair and tried to drag her away while
she locked and braced her legs between the hallway walls); State
v. Sanchez, 2015 UT App 27, ¶¶ 14‒15, 344 P.3d 191 (holding a
reasonable jury could have found a detention where the
defendant clearly intended to detain the victim against her will
by dragging her 58 feet down a hallway and closing the door);
State v. Ellis, 2014 UT App 185, ¶ 10, 336 P.3d 26 (holding a
reasonable jury could base an aggravated kidnapping conviction
on evidence that the defendant “followed [the victim] around
20150153-CA 18 2019 UT App 66State v. Wright
the house throughout the day,” even following her into the
bathroom to prevent her from escaping) (quotation simplified).
¶41 Second, the State argues that Defendant would not let
Mother “leave the house to go to the hospital until she promised
to lie about what happened.” The State claims that after the
assault, Mother “begged” Defendant to open the garage door,
but he would not until he knew what she would say. Defendant
only let her leave after knowing she would tell the hospital that
she fell off the cement steps. But the record does not support
these assertions, and nothing in Mother’s testimony suggests
that Defendant intended to “detain” Mother by not opening the
garage door.
¶42 Mother testified that, after the assault, she asked
Defendant three times “to open the garage door” before “he
opened it.” She could not recall why she did not have a garage
door key herself, but she did not. When the State asked Mother,
“Without him opening that garage was there a way for you to
leave?” Mother replied, “I could have gone outside and there’s
buttons that you could push, but half the time it doesn’t do it.”
Before Mother left the house, Defendant wanted to know what
she was going to tell hospital personnel, but she gave no
indication in her testimony that Defendant was preventing her
from leaving the house. Instead, to prevent Mother from telling
the truth, Defendant threatened Mother with a gun and followed
her to the emergency room, lifting his coat to show her the gun
before she met with First Doctor. And she testified that she was
concerned about reporting Defendant’s assault because of what
he would do to his sisters if she told the truth. Because Mother
never testified that Defendant prevented her from leaving the
house, we conclude that Defendant did not “detain” her.
¶43 Because neither of these instances amount to a detention
under the aggravated kidnapping statute, Trial Counsel was
remiss in not moving to dismiss the charge after Mother’s
20150153-CA 19 2019 UT App 66State v. Wright
testimony or during plea negotiations. And although Mother’s
testimony of the assault may have persuaded Defendant that he
was “going to be convicted” and he sought a plea agreement,
Trial Counsel failed to inform Defendant that an insufficient
factual basis supported the aggravated kidnapping charge. Trial
Counsel testified that, during plea negotiations, he did not
discuss the factual basis for the aggravated kidnapping charge
with Defendant because Defendant said he understood the
factual basis for each element based on the State’s evidence
given at trial. He further testified that his advice about the
aggravated kidnapping evidence occurred prior to trial. Given
that the factual basis for Defendant’s plea rested on the evidence
presented at trial, a reasonable defense attorney would have
objected to the aggravated kidnapping charge and informed his
client that an insufficient factual basis supported the element of
“detention.” See State v. Finlayson, 2000 UT 10, ¶ 24, 994 P.2d
1243 (holding that the first part of the Strickland test had been
met because the facts of the case failed to support an aggravated
kidnapping conviction and defendant’s counsel failed to make
an objection), abrogated on other grounds by State v. Wilder, 2018
UT 17, 420 P.3d 1064. Had Trial Counsel done so in this case, we
are confident that Defendant “would not have pleaded guilty
and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985). See also Miller v. Champion, 262 F.3d 1066, 1072
(10th Cir. 2001) (stating that “the strength of the prosecutor’s
case” is the best evidence of whether a defendant would have in
fact changed his plea). More likely, of course, had Trial Counsel
considered the evidence more carefully and shared this analysis
with the State, it is possible the plea arrangement would have
gone forward with aggravated kidnapping off the table, given
Defendant’s willingness to plead to the other seven felony
charges against him.
¶44 We conclude that there is sufficient evidence for
Defendant’s possession of ammunition in a correctional facility
and attempted murder convictions, and consequently,
20150153-CA 20 2019 UT App 66State v. Wright
Defendant fails to demonstrate it would have been rational for
him to withdraw his guilty plea to the charges resulting in
these convictions. But, as to his aggravated kidnapping
conviction, Trial Counsel erred in failing to object to the charge
after Mother’s testimony or during plea negotiations and in
failing to advise Defendant that an insufficient factual basis
supported the “detention” element of the crime. Defendant’s
plea to this charge was therefore unknowingly and involuntarily
made, and accordingly we vacate his aggravated kidnapping
conviction.
D. Other Ineffective Assistance Claims
¶45 Defendant contends that Trial Counsel failed to preserve
evidence and object to hearsay testimony and that his plea
withdrawal counsel provided ineffective assistance by failing to
investigate and raise substantive issues. We conclude that these
issues are inadequately briefed.
¶46 Because “we are not a depository in which the appealing
party may dump the burden of argument and research,” we
“will not address arguments that are not adequately briefed.”
Johnson v. Johnson, 2014 UT 21, ¶ 20, 330 P.3d 704 (quotation
simplified). “A party must cite the legal authority on which its
argument is based and then provide reasoned analysis of how
that authority should apply in the particular case, including
citations to the record where appropriate.” Bank of Am. v.
Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196 (emphasis added). And
“an appellant who fails to adequately brief an issue will almost
certainly fail to carry its burden of persuasion on appeal.” Boyle
v. Clyde Snow & Sessions PC, 2018 UT App 69, ¶ 11, 424 P.3d 1098(quotation simplified). This burden “can be met only if the facts
used in the argument section of the brief are sufficient to provide
context for the events that occurred in the district court, are
correctly shown to be in the record, and are analyzed in relation
to pertinent legal authority.” Id. ¶ 12.
20150153-CA 21 2019 UT App 66State v. Wright
¶47 Defendant makes a number of assertions with no citation
to the record, 6 and he fails to engage in the analysis necessary to
evaluate whether Trial Counsel’s performance in these instances
was deficient and prejudicial. First, he argues that Trial Counsel
failed to preserve crime scene evidence, claiming that the State
has an obligation to preserve exculpatory evidence and that Trial
Counsel should have required the State to preserve this evidence
for the defense. But Defendant fails to cite any legal authority
supporting this argument and does not discuss why the absence
of this evidence at trial was prejudicial to his defense.
¶48 Second, Defendant argues that Trial Counsel failed to
object to obvious hearsay testimony from First and Second
Doctors. Defendant argues that these witnesses did not diagnose
Mother because they relied instead on the “radiologists
specifically trained to read and interpret data.” Defendant fails
to develop any meaningful legal analysis of his arguments or of
rules 801(c) and 803 of the Utah Rules of Evidence and
controlling authority on this issue. And furthermore, he asserts
that “[a]t worst, the evidence shows that [Defendant] slapped his
mother and pulled her out of a chair,” arguing that the evidence
is sufficient to support a simple assault charge but not attempted
6. We note that Defendant’s entire argument section lacks
citation to the record, and he asserts a number of facts without
any citation to the record. Rule 24 of the Utah Rules of Appellate
Procedure requires that the argument section of a brief contain
“reasoned analysis supported by citations to legal authority and
the record,” Utah R. App. P. 24(a)(8), because it is “not our
obligation . . . to comb the record for evidence,” In re W.A., 2002
UT 127, ¶ 45, 63 P.3d 607 (quotation simplified). Although
Defendant’s statement of facts contains sufficient citation to the
record, such citation does not relieve Defendant of his burden to
demonstrate that the record also supports his assertions in the
argument section.
20150153-CA 22 2019 UT App 66State v. Wright
murder or aggravated assault. But Defendant was not convicted
of aggravated assault, and as we discussed above, the video
recording and Mother’s testimony constituted sufficient
evidence to support the attempted murder conviction. See supra
¶¶ 34‒36.
¶49 Finally, Defendant argues that his plea withdrawal
counsel “failed to adequately question [Trial Counsel’s]
credibility” and “failed to establish that [Trial Counsel] was
highly motivated to get a guilty plea.” But the focus of
Defendant’s argument is on Trial Counsel’s errors, not those of
his plea withdrawal counsel, and in framing the argument this
way, he fails to engage in a meaningful analysis of these
ineffective assistance claims. Because Defendant fails to
adequately brief these claims, he fails in his burden of
persuasion, and we decline to address them further.
II. Cumulative Error
¶50 Defendant contends that the cumulative prejudicial effect
of his ineffective assistance of counsel claims undermines
confidence in his guilty plea, and we should therefore reverse his
convictions. However, “[i]f [we] determine[] that either a party’s
claim did not amount to an error, or that the claim was an error
but has no potential to cause harm on its own, the claim cannot
weigh in favor of reversal under the cumulative effects test.”
State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038.
¶51 Defendant did not demonstrate prejudice on six of his
ineffective assistance of counsel claims, and although we
concluded that Trial Counsel’s failure to object to the aggravated
kidnapping charge given the State’s insufficient evidence
supporting the element of “detention” prejudiced his defense,
this does not undermine his guilty plea to the other charges.
Accordingly, there was no cumulative error in this case.
20150153-CA 23 2019 UT App 66State v. Wright
CONCLUSION
¶52 We affirm Defendant’s convictions and conclude that his
guilty pleas were knowingly and voluntarily made, with the
exception of the plea culminating in his aggravated kidnapping
conviction. We vacate that conviction and remand for trial or
such other proceedings as may now be in order.
20150153-CA 24 2019 UT App 66