Lead Opinion
¶ 1 Jeffrey Russell Finlayson was convicted of forcible sodomy, a first degree felony,
I. FACTS
¶ 2 Defendant met the victim, a Japanese exchange student who spoke little English, on the campus of the Salt Lake Community College, where they both attended classes. Defendant, who is fluent in Japanese, asked the victim if she would help him with his Japanese studies. She agreed, and the two made plans to go to the library together on October 5,1994.
¶ 3 On that date, defendant picked the victim up at her apartment, and they went to dinner. After dinner, defendant claimed he forgot to bring a book from his apartment, and they drove there to pick it up. When they arrived, defendant asked the victim to come inside to see his Japanese souvenirs, which he acquired while in Japan. Once inside, defendant told the victim that the library was about to close and suggested they study at his apartment. She agreed, and they worked on defendant’s Japanese writing skills for approximately one hour.
¶ 4 After they finished studying, defendant asked her if he could kiss her. She said “No,” and defendant then pulled her from the chair in which she was sitting, carried her into his bedroom with his arms wrapped around her body, and sexually assaulted her. During the assault, the victim pounded on the floor with one foot in an unsuccessful attempt to attract a neighbor’s attention. Defendant told the victim that if she did not stop, she would not be able to go home. She also made several unsuccessful attempts to escape; after one such attempt, defendant handcuffed her. He removed the handcuffs after she promised to be quiet.
¶ 5 After the assault, the victim tried to leave defendant’s apartment, but was made to wait ten minutes while defendant dressed. While leaving the apartment, defendant tried to put a paper bag over the victim’s head so she would not see his address. When she refused to wear the bag, defendant placed a jacket over her head. The drive to the victim’s apartment lasted one hour, despite the fact that she lived less than thirty minutes away. When the victim stated that she wanted to die, defendant refused to take her home until she promised not to harm herself. Despite defendant’s efforts, the victim obtained his address through a letter taken secretly from his apartment.
¶ 6 On certiorari, we review a decision of the Court of Appeals for correctness. See State v. Hodson,
II. APPEALABILITY
¶ 7 Defendant argued for the first time in the Court of Appeals that the crime of aggravated kidnaping, on the facts of this case, is a lesser included offense of the crimes of rape and forcible sodomy and, therefore, the conviction for aggravated kidnaping merged into the other convictions. That point was not raised in the trial court, but the Court of Appeals addressed the issue, relying on State v. Brooks,
¶ 8 As the State correctly argues, the Court of Appeals’ decision to review the merger claim under Rule 22(e) was in error.
¶ 9 Defendant concedes that the Court of Appeals’ rebanee on Rule 22(e) was in error, but argues that we should affirm the reversal of the aggravated kidnaping conviction on the ground of ineffective assistance of counsel.
¶ 10 The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to defendants in all criminal prosecutions. This right has been interpreted as “the right to effective assistance of counsel.” McMann v. Richardson,
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687. The application of this test to the instant case is discussed below.
III. AGGRAVATED KIDNAPING
¶ 11 The Court of Appeals ruled that aggravated kidnaping was a lesser included offense of rape and forcible sodomy. We disagree. The law barring convictions for both an offense and a lesser included offense was explored in State v. Baker,
¶ 12 Aggravated kidnaping may be committed in a variety of ways:
A person commits aggravated kidnaping if the person intentionally or knowingly, without authority of law and against the will of the victim, by any means and in any manner, seizes, confines, detains, or transports the victim with intent:
(a) to hold for ransom or reward, or as a shield or hostage, or to compel a third person to engage in particular conduct or to forbear from engaging in particular conduct; or
(b) to facilitate the commission, attempted commission, or flight after commission or attempted commission of a felony; or
(c) to inflict bodily injury on or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political function; or
(e) to commit a sexual offense as described in Part 4 of this chapter.[2 ]
Utah Code Ann. § 76-5-302(1) (1995) (emphasis added).
¶ 13 The jury was instructed on all variations of aggravated kidnaping. The only argument asserted by the prosecutor at trial in support of the aggravated kidnaping charge was defendant’s handcuffing of the victim. The Court of Appeals held that handcuffing the victim was insufficient to support the aggravated kidnaping conviction because that evidence was inseparable from and integral to the evidence which established the elements of the forcible sex crimes.
¶ 15 The doctrine of lesser included offense, under section 76-1-402, has a superficial applicability to the facts of this case, but as we held in State v. Couch,
¶ 16 The Court of Appeals recognized that detention is an inherent aspect of both crimes, but nonetheless found section 76-1-402 applicable because of its emphasis on the facts of the case, not on the elements of the crime. This conclusion was in error. As we explained in Brooks,
¶ 17 Section 76-1-402, however, is not the only basis for finding that one set of facts may give rise to a merger of two or more separate crimes so as to preclude a multitude of convictions for essentially the same conduct. Couch,
¶ 18 After dropping off her two friends, the defendant then drove past the victim’s house and, despite her request, refused to stop. The defendant continued to drive back towards Evanston, Wyoming. After driving off the road to a deserted spot, the defendant forcibly removed the victim’s clothes and raped her. The defendant then drove the victim in her ear to a motel in Evanston, Wyoming, where he got out. See id. at 92.
¶ 19 The defendant argued that his act of detaining the victim was merely incidental to the sexual assault and was therefore a lesser included offense. Although the court ruled that section 76-1-402 was inapplicable, it nonetheless recognized the potential merger issue, i.e., that the defendant could not be convicted of both kidnaping and sexual assault if the kidnaping was merely incidental to the sex crimes. The Court stated that the distinction between kidnaping
¶ 20 This same analysis was held applicable to aggravated kidnaping and rape in State v. Jolivet,
¶21 Jolivet did not hold, as the State’s argument assumes, that all convictions for aggravated kidnaping require a “substantial period” of detention. Rather, this language simply emphasized that the defendant’s actions in detaining the victim were not inherent in the sexual assault, but “an act separate from the other charges.” Id.
¶22 In the instant case, there was no detention prior to or during the sexual assault that exceeded the detention inherent in the sex crimes. Here, the victim agreed to meet defendant, and then agreed to accompany him to his apartment. It is true that defendant deceived her as to his intentions in this regard, but her decision was not made against her will and was not a “detention” within the meaning of the aggravated kid-naping statute.
¶ 23 The Court of Appeals held that the detention necessary for the aggravated kidnaping charge and the sex crimes occurred simultaneously. The Court of Appeals relied on a three-part test from State v. Buggs,
[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.
Id. at 731. Using this test, Finlayson’s detention of the victim up to the time of the rape and sodomy was incidental to the assault, rather than having an independent significance. See Couch, 635 P.2d at 93. His carrying the victim into the bedroom, handcuffing her, and physically preventing her escape while the sex crimes were in progress constituted a detention that was “slight, inconsequential and merely incidental to the other erime[s].” Defendant’s acts to that point, apart from the rape and forcible sodomy, had no independent significance sufficient to support a separate conviction for aggravated kidnaping. As we stated in Couch, to hold otherwise would transform virtually every rape and robbery into a kid-naping as well. See Couch,
¶ 24 That the facts in this case do not support a conviction for aggravated kid-naping is clear from Couch and Jolivet. Yet defendant’s counsel made no objection to this charge, and failed to raise this at any time, either during trial, or following the conviction in a motion to vacate. As this is an issue that would have been raised outside the presence of the jury, no possible prejudice would have inured to defendant. When no possible explanation or tactical reason exists for such a decision, we have held that the first part of the Strickland test, supra ¶ 11, is satisfied. See State v. Templin,
¶ 25 In the instant case, it is clear that the second part of the Strickland test has also been met. Objecting to the aggravated kid-' naping charge in the trial court or moving to vacate the conviction would have precluded that court from properly allowing it. With this conviction, defendant has been prejudiced by the imposition of a ten-year-to-life sentence, which although concurrent, would likely increase the time the Board of Pardons and Parole would require him to serve.
¶ 26 Accordingly, we hold that defendant’s counsel’s failure to object to the aggravated kidnaping charge rendered his performance constitutionally deficient and prejudiced defendant.
¶27 Justice Russon’s dissent argues that defendant’s ineffective assistance of counsel argument is not properly before this Court and that we should remand to the Court of Appeals for a proper analysis of that question. He asserts that Reese v. Reese,
¶28 The principles stated in Reese have nothing whatsoever to do with the policy underlying this Court’s allowance of ineffective assistance of counsel claims. Use of the ineffective assistance of counsel doctrine is often allowed to obviate the need for subsequent review by a writ of habeas corpus in a district court and a right of appeal from that ruling — -which usually must be done without the assistance of counsel, because most defendants cannot afford private counsel and the State will not pay for representation by Legal Defenders.
¶29 Reese was a divorce proceeding in which the trial court’s rulings regarding alimony, child support, and property were at issue. The wife appealed to the Court of Appeals, where she challenged numerous aspects of the trial court’s decree, including imputation of income, apportionment of expenses, awards of alimony, fees, and child support, and projection of expenses. Although the wife raised numerous points of error, the Court of Appeals chose to address only three of them, dismissing the remaining points out of hand without explanation. On certiorari, the wife reasserted each of the points that the Court of Appeals ignored. Because the Court of Appeals refused to even explain its refusal to address these issues, its opinion did not deal with all the relevant facts, much less the obvious interdependence of the various claims. We held that we could not properly review the Court
¶ 30 Reese is clearly inapplicable to the present case. Here, defendant appealed, arguing that the facts did not support a conviction for aggravated kidnaping. Defendant argued ineffective assistance of counsel, illegal sentence (Rule 22(e)), and plain error. We poured this case to the Court of Appeals, where after a complete review of the facts, that court reversed the aggravated kidnaping conviction under Rule 22(e). The Court of Appeals stated that because its decision was based on Rule 22(e), there was no need to consider defendant’s ineffective assistance of counsel argument.
¶ 31 The Court of Appeals’ reliance on Rule 22(e) was incorrect. However, we have a complete factual record before us, and defendant’s arguments raise purely legal questions. It is well settled that we may affirm a judgment of a lower court if it is sustainable on any legal ground or theory apparent on the record. See Orton v. Carter,
Defendant’s Actions Following the Commission of the Sex Crimes
¶32 The State now argues, for the first time on appeal, that defendant’s actions after the commission of the sex crimes are sufficient to support a conviction for aggravated kidnaping.
¶ 33 We agree that these actions were of an independent significance separate from the commission of the sex crimes. As this detention was against the will of the victim for a substantial period of time, the detention appears sufficient to support a conviction for simple kidnaping.
(a) to hold for ransom or reward, or as a shield or hostage, or to compel a third person to engage in particular conduct or to forbear from engaging in particular conduct; or
(b) to facilitate the commission, attempted commission, or flight after commission or attempted commission of a felony; or
(c) to inflict bodily injury on or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political function; or
(e) to commit a sexual offense as described in Part 4 of this chapter.[ 5 ]
Utah Code Ann. § 76-5-302(1) (1995) (emphasis added). As the ten-minute delay and circuitous driving route occurred after the commission of the sex crimes, the only possibility for satisfying the statute is if the detention occurred to “facilitate flight” under section (b).
¶ 34 This Court has never defined the term “flight,” either within the meaning of the aggravated kidnaping statute or in other contexts. Its use in the criminal law, however, is quite common. The issue of flight often arises, as in the present case, as an aggravated circumstance; to establish circumstantial evidence of an accused’s guilt, see State v. James,
¶ 35 Black’s Law Dictionary defines flight as: “The evading of the course of justice by voluntarily withdrawing one’s self in order to avoid arrest or detention.... Also comprehends continued concealment.” Black’s Law Dictionary 640 (6th ed.1990). Courts have used varying standards for proving flight or determining when such evidence is admissible. See State v. Bales,
¶ 36 Affirmed.
Notes
. Defendant also argues, in the alternative, that we should affirm the Court of Appeals on the ground of plain error. Our decision today makes it unnecessary to address that argument.
. Part 4 includes both the rape and forcible sodomy charges relevant here.
. The argument that defendant’s actions following the sexual assault were done with the intent to facilitate flight was not presented to the jury. The only argument the prosecution presented to support the aggravated kidnaping charge was the handcuffing of the victim. As discussed above, however, immobilization of the victim was necessary to perform the rape and forcible sodomy. Although handcuffing as such was not necessary, by itself it had no legal significance in terms of kidnaping.
. Section 76-5-301 states in pertinent part:
(1) A person commits a kidnaping when he intentionally or knowingly and without authority of law and against the will of the victim:
(a) Detains or restrains another for any substantial period....
. Part 4 includes both the rape and the forcible sodomy charges relevant here.
Concurrence Opinion
concurring and dissenting:
¶ 38 I concur with the majority’s conclusion that the court of appeals improperly applied Utah Rule of Criminal Procedure 22(e) to treat the merits of defendant’s merger argument.' Because the court of appeals relied upon this improper basis for assessing the validity of defendant’s conviction for aggravated kidnaping, it failed to address the only proper basis for treating the merits of defendant’s merger argument: ineffective assistance of counsel. See State v. Finlayson,
¶ 39 Nevertheless, I dissent from the majority’s decision to treat the ineffectiveness argument on certiorari. That analysis should be performed in the first instance by the court of appeals, before this court addresses it. Otherwise, we review an ineffectiveness argument that was never treated by the court to which we have issued the writ— a practice that violates the fundamental principles of certiorari review. See Reese v. Reese,