STATE of Utah, Plaintiff and Appellee, v. Jeffery FINLAYSON, Defendant and Appellant.
No. 20110906-CA.
Court of Appeals of Utah.
Nov. 28, 2014.
2014 UT App 282
Senior Judge PAMELA T. GREENWOOD authored this Opinion, in which Judges JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.
¶ 20 Our opinion in Wiscombe aids Hegbloom to this extent: we classified the wrongful denial of an evidentiary hearing on the protective order as a violation of due process. Crucially, though, Wiscombe involved a direct appeal. Even in dicta, it never mentions voidness, jurisdiction, or collateral attacks. And unlike the husband in Wiscombe, Hegbloom did not appeal the judgment of the district court in the protective-order case. Instead, he violated the order and now belatedly seeks to attack it collaterally. We are unwilling to extend Wiscombe‘s holding beyond its facts and its stated rationale. Wiscombe does ground its holding on due process. But as explained above, our reading of the cases suggests that not every due process violation rendering a judgment erroneous necessarily renders it void as well.
¶ 21 Had Hegbloom lacked notice of the protective-order proceeding, we might well agree that the resulting order was void. A litigant denied notice of a proceeding has no opportunity to bring an appellate challenge; tо deny such a litigant the right to collaterally challenge the judgment entered without notice—and thus without an opportunity to be heard—would indeed be fundamentally unfair. Denying a collateral challenge to that judgment would foreclose any opportunity to be heard in connection with the entry of the order.
¶ 22 But Hegbloom stands on different footing. He received notice, attended the hearing before the commissioner, stated his intention to seek an evidentiary hearing, and was instructed how to do so. He does not claim that he lacked notice of entry of the district court judgment or was prevented from bringing a direct appeal. The husband in Wiscombe appealed the judgment entered against him. Hegbloom could have done likewise. After all, “[t]he proper method for contesting an adverse ruling is to appeal it, not to violate it.” State v. Clark, 2005 UT 75, ¶ 36, 124 P.3d 235. We see nothing fundamentally unfair in not allowing a litigant to challenge collaterally a judgment he could have challenged directly had he chosen to do so.
¶ 23 In sum, once the protective order was entered against Hegbloom and with his knowledge, he was obligated either to appeal it or obey it. He was not free to disobey it and then challenge it cоllaterally in the criminal proceeding. Whatever errors were or were not made by the commissioner or the district court in the protective-order proceeding did not render the judgment entered there void and subject to collateral attack.
CONCLUSION
¶ 24 The judgment of the district court is affirmed.
Sean D. Reyes and Ryan D. Tenney, for Appellee.
Senior Judge PAMELA T. GREENWOOD authored this Opinion, in which Judges JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.1
¶ 1 Jeffery Finlayson appeals from his convictions for aggravated kidnapping, a first degree felony,
BACKGROUND
¶ 2 In early May 2010, Finlayson informed his wife (Wife) of eight months that he wanted a divorce. 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 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.4
¶ 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 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
¶ 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.6 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 hearing, found probable cause to bind over Finlayson on all charges in the amended information.
¶ 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
[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 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 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....” 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 “а 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 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
¶ 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” becаuse 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.” 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 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 present-
¶ 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
¶ 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 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).
ANALYSIS
I. Rule 23B Motion
¶ 21 Finlayson requests that we remand this case to the trial court for an evidentiary hearing under
¶ 22
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 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.
¶ 23 Finlayson‘s first claim for remand, based on vindictive prosecution, is beyond the scope of
¶ 24 Finlayson‘s second request for a
¶ 25 In support of his
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 еngaging 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.”
¶ 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, 108 P.3d 695. 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
¶ 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.
¶ 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, 108 P.3d 695.
¶ 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 plаin error fails because he cannot demonstrate that an error occurred.13
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
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 рroduce death or serious bodily injury.”
(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.
¶ 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 аny 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
¶ 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.”
¶ 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 “rеlatively 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
¶ 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.”
¶ 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 Stаte 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 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 рarole 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
¶ 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 acted with intent to inflict bodily injury, i.e., intent to inflict “physical pain, illness, or any impairment of physical condition.” See
¶ 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.”
¶ 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 alsо 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 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 not apply here because the aggravated kidnapping was not done to facilitate the aggravated assault.18
¶ 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
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 qualificatiоn 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, 55 P.3d 1131.
¶ 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. ¶ 16. 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.
¶ 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 thereaf-ter 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, 314 P.3d 1014 (noting that the defendant‘s holding the victim against her will all night long was “not merely incidental to the aggravated assault” 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 circum-
CONCLUSION
¶ 56 We deny Finlayson‘s motion to remand because Finlayson has not met the requirements for remand under
Notes
State v. Titus, 2012 UT App 231, ¶ 16, 286 P.3d 941 (citation and internal quotation marks omitted).[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.