*1 Utah, Appellee, Plaintiff and STATE Leroy HOLBERT,
Richard Appellant.
No. 20010147-CA. Appeals of Utah. Court Dec. 2002. Rehearing Dec. Granted *3 order, protective Defendant was
cause of a family go home. De- not allowed to order, mainly and the children spite the
stayed parents’ home. at Wife’s Wife and 3 On family home. Wife
children returned to telephone on the speaking with a friend the children announced when one of told her was at the house. Wife and to that Defendant was there friend “come now.” *4 ¶ he was at the Defendant told Wife bowling asked get his ball. Wife house the front door while she Defendant to wait at Instead, Defendant the ball. retrieved door, house, locked the into the shoved Wife waistband, pointed gun and pulled a from his gun head. Wife ran to the back Wife’s slammed door of the house but Defendant open it. shut as was about to door Wife door, Defen- then ran for the front As Wife grabbed her and threw her into the dant door Defendant shut the bedroom bedroom. gun pointed head. At kept and at Wife’s time, said, “You want a di- this Defendant going I’m going You are to die. vorce? Sipes, Ogden, Appellant for Sharon S. you.” that she did kill Wife told Defendant General, Shurtleff, Attorney and Mark L. marriage want a divorce and wanted the not Attorney Inouye, B. Gener- Jeanne Assistant to work. al, City, Appellee. Salt Lake ¶ then distracted 5 Defendant became BILLINGS, P.J., screaming ringing the children and the door- Before Associate and DAVIS, ORME, again pleaded with Defendant bell. Wife and JJ. they the children and “leave could take opened the bedroom the state.” Defendant AMENDED OPINION1 door, and unlocked walked to the front door
DAVIS, Judge: it, waistband, placed gun in his and back (Defen- police Richard L. Holbert him ar- Defendant asked Wife to defend when dant) home, aggravated appeals exiting his conviction of the friend rived. While kidnaping, degree felony, speaking a in violation first whom had been on the with Wife (1999). through § Ann. We telephone Utah Code 76-5-302 arrived. Defendant left affirm. backyard. incident, During went the children
BACKGROUND2 “screaming cry- neighbor’s house (Wife) neighbor ing.” of the children told the Palmer and Defendant One Suann years that Defendant had locked the children out married for over and had were eleven hurting neigh- The together. and-Wife the house and was Wife. five children Defendant police. on the “getting along very Be- bor then called While had not been well.” light favorable to Opinion replaces 2. Facts are viewed in a most the Court's 1. This Amended case, accordingly. See original Opinion CA, verdict and are recited this Case No. 20010147 Loose, P.2d 1237. 2000 UT issued November ' (cid:127) trial, running 12 At Wife testified to a neighbor witnessed Wife phone, the during De- incident on got gun.” screaming, “He’s argued previous about a fendant Wife day, left several 7 Later that argument, disagreement. During the Wife The answering machine. messages on Wife’s telephone. picked went to the Before Wife retrieved and recorded messages were up telephone, picked up Croyle, day by Detective Danielle following by the and choked her into unconscious- neck investigator for the Domestic Violence four ness. Defendant then threw Wife Department. Ogden City Police in the Unit Upon regaining five feet into the kitchen. messages, re- Throughout consciousness, Wife realized she was bent speak that he wanted to with peatedly stated table and Defendant was over the kitchen goodbye.” time” to “tell her Wife “one more choking again out her. She blacked day’s inci- that the point, At one he stated time on the kitchen floor awoke second [Wife] “to show how sad dent was intended kneeling over her and with Defendant chok- also frustrated” he was. He and mad and ing into mode” and her. Wife “went survivor , going kill implied that he was frequently Defendant, me, kill I told “Please don’t wan- himself. marriage make [sic] na this work.” Defen- choking stopped dant Wife but then “held incident, Defendant Subsequent to the hostage for an hour and a half.” The [her] *5 stopped pay- “just apartment” and [his] left order, day, protective next obtained the Wife Apartments Cherry Creek ing rent at the which was later modified. employed in he was also complex, where ¶ notice with the objected maintenance. He left written 13 Defendant to Wife’s testi- going “to move out.” landlord that he was mony of a as inadmissible evidence bad However, nor the landlord neither Defendant responded that the evidence act. The State specifically what the notice stat- could recall incident that oc- was “foundational for the ed. August.” the 12th of The trial curred on testimony judge inquired the would whether ¶ days in Defen- 9 After a number of or motive. The State then con- show intent seen, posted landlord had not the dant been testimony that the would demonstrate firmed apartment on the an abandonment notice intent, motive, addition, opportunity. In and apartment was deemed door. Once the objected “hostage” remark. Defendant to the abandoned, the landlord allowed Detective objection the on the The trial court sustained apartment look Croyle enter the and to non-responsive. the answer was basis that remaining belongings. through Defendant’s ¶ cross-examination, During Wife was search, Croyle viewed During the Detective after the contact with Defendant asked about listed in Defendant’s telephone the numbers had been issued. Wife re- protective order system. The last call from Wife caller I.D. to court sponded that after Defendant “went 3,1999. August was dated assault,” [pleaded] guilty simple the ¶ August Forty-six days after the mutual consent modified to allow order was incident, Defendant was located and contact. During a custodial placed under arrest. ¶ approx- that further testified on Wife search, the officer found a small revolver 4, 1999, staying at the imately she was June belongings. Defendant’s family with her five children was house heard about 3:15 a.m. when she Although charges initially filed awakened at were 12, 1999, tes- at the front-room window. She the someone against Defendant on appeared an instrument was charges it that federal tified case was dismissed so However, pry open the window. Wife being used to pursued. on could be Defendant wasn’t sure whether aggravat- stated she charged Defendant with assault, felony, aggra- person at the window. degree a third was ed objected speculation as degree felony. Prior to Wife’s kidnaping, a first vated may have been involved trial, that Defendant aggravated assault count The trial court overruled the incident. dismissed. tricked say anything pressed concern to Wife she had Wife did not objection because up to the incident and that him and asked to “stick for [him].” that tied testifying Finally, through backyard had only as to what she he left because she he assumed that he would be trouble. heard. Croyle also testified to the 16 Detective During testimony con- the landlord’s acknowledged that the incident. She June cerning apartment, Defendant’s investigation, in- conducted some police had objected by Croyle Detective search for Defen- cluding an unsuccessful search there was no search warrant. The because apartment complex. at his dant’s vehicle apartment trial court determined enough police did not have possession had been returned to the of man- prosecute matter as physical evidence agement so Defendant did not have a reason- violation. protective order privacy. expectation able case, Defen- Following the State’s trial, Upon jury conclusion of the on one a motion to dismiss based dant filed as to the lesser included of- was instructed assault— original charges aggravated — aggravated fenses of unlawful subsequently the State being dismissed jury guilty returned a ver- detention. The which, Defendant, should have according to charge aggravated kidnaping. dict on the subject merger. primary charge been the sentencing, 23 Prior to Defendant filed the motion because The trial court denied judgment, requesting a motion to arrest only charges. There’s two “there are not or, alternative, grant a new trial in the court that whether one.” court determined The aggravat- enter a conviction for the crime of “overcharged” awas Defendant had been insufficiency ed assault based on an jury instructed the matter for the and so doctrine, argument merger and the included offenses of as to the lesser again contending that Defendant should have detention. aggravated assault and unlawful *6 aggravated convicted for rather been Next, to ver- Defendant testified his aggravated kidnaping. The re- than court 1999. He sion of the events on jected in Defendant’s reliance on case law apartment that Wife had called his stated which defendant had been convicted of two she had and invited him to the house because jury’s crimes and ruled that the verdict could marriage “changed about situ- [the] her mind ignored legal not be and that it was of “no house, entering Upon ation.” the Defendant consequence ... [Defendant] that also could copy to for a went the bedroom to search charged aggra- have been with the crime of protective gun the and noticed a that order vated assault.” The court concluded that previously purchased he for Wife on the had Defendant not demonstrated error dresser. Defendant testified that Wife impropriety rights. that affected his pulled it gun pointed out the towards asked Defen- Defendant’s chest area. Wife
dant,
just
guys
“Why
you
can’t
like other
be
AND
ISSUES
STANDARDS OF REVIEW
stated,
just
gotta
“If I
[sic]
leave?” and
¶ 24 Defendant raises several issues
[you],
[you].”
kill
I’ll kill
First,
appeal.
on
Defendant contends that
Defendant,
According
the children
trial
the
court erred when it allowed Wife to
ringing
began banging
then
on the door and
testify
May
choking
about the
inci
turned to look to the
the doorbell. As Wife
reviewing a
dent.
‘When
trial court’s deci
door,
grabbed
gun and
Defendant
front
404(b),
to admit evidence under rule
we
sion
pointed it at
for a few seconds. Wife
apply an abuse of discretion standard.”
pleaded
they
that
could
then
with Defendant
Widdison,
60,¶
v.
2001 UT
28 P.3d
State
state,
take the children and leave
addition,
In
review the
“[w]e
record to
told
that she did not want a
also
Defendant
[prior]
whether the admission of
determine
marriage
to work.
divorce and wanted
‘scrupulously exam
bad acts evidence was
judge
proper
‘in the
exer
that he then
ined’
the trial
20 Defendant
testified
”
v. Nelsorir-
placed
gun
pocket.
in his coat
He ex-
cise of that discretion.’
State
(ci-
light
from it
most favorable to the
Waggoner, 2000 UT
” Widdison,
omitted).
jury.’
verdict of the
UT 60
tation
(citations omitted).
at
P.3d 1278
“A
Second,
argues that
Defendant
jury conviction will be reversed for insuffi-
admitting
trial court erred
‘only
presented
cient evidence
if the evidence
apartment with
Defendant’s
from
obtained
is so insufficient
reasonable
the trial
review
out a search warrant. We
”
minds could not
reached the
have
verdict.’
“deferentially under
findings of fact
court’s
(citation omitted).
Id.
standard, and its con
clearly
erroneous
for correctness
are reviewed
clusions of law
¶28 Finally,
argues
application
given to the
with some discretion
the cumulative effect of errors committed at
underlying
to the
fac
legal
standards
trial undermines confidence that a fair trial
findings.”
Loya,
tual
State
occurred.
the cumulative error doc
“Under
3,¶ 6,18 P.3d 1116.
trine,
only if
we will reverse
‘the cumulative
Third,
that he
Defendant claims
of the
effect
several errors undermines our
”
assis
deprived
right
to effective
...
that a fair trial
confidence
was had.’
(1)
when counsel:
failed to
tance of counsel
(Utah
Dunn,
testimony concerning
attempted
1993)
(citations omitted).
(ellipsis
original)
family home and the subse
at the
break-in
(2)
request
failed
investigation,
quent
ANALYSIS
testified that
curative instruction after Wife
her “hos
assaulted her and held
Testimony
I. Prior Bad Acts
(3)
request a
or cura
tage,”
failed to
mistrial
mentioned Defen
tive instruction after Wife
¶29
argues
prior
prior
and other
bad
dant’s
conviction
permitting
trial court erred in
(4)
acts,
testify
prepare
witnesses to
failed
about
1999 incident.3 Rule
behalf,
to re
failed
on Defendant’s
404(b)
prohib
Evidence
the Utah Rules of
Defendant’s theo
quest a
instruction on
“[e]vidence
the admission of
of other
its
assis
ry
self-defense. When
ineffective
crimes, wrongs
prove
...
or acts
for the first
tance of counsel claim “is raised
person in
character of a
order to show action
evidentiary
appeal
on
without a
time
conformity
R. Evid.
therewith.” Utah
hearing,
presents
question
of law.” State
it
404(b).
however,
“may,
be admis
Evidence
*7
(Utah
539,
Ct.App.
Bryant,
965 P.2d
purposes,
proof
as
of
sible for other
such
1998). However,
coun
“appellate review of
motive,
intent, preparation, plan,
opportunity,
highly
performance [is]
deferential.”
sel’s
knowledge, identity,
of
or
or absence mistake
omitted).
(quotations and citation
Id.
prior
of
bad acts is
accident.” Id. Evidence
404(b) if the evidence
¶27
“admissible under rule
Next,
challenges
pur
proper,
to a
non-character
is relevant
support
insufficient to
a con
the evidence as
danger
prejudice
for unfair
pose, unless its
aggravated kidnaping. “In con
viction for
substantially outweighs
pro
its
and the like
insufficiency
sidering an
Widdison, 2001 UT
claim,
value.” State v.
‘the evidence and all bative
this court reviews
60,¶ 41,
reasonably
4. Rule to 5. We was amended follow do not find it to address the arguments federal rule verbatim. See Utah R. Evid. prior State’s that the bad acts evi- 404(b) advisory committee’s note. The amended background dence was admissible to show or a specific provision version deleted a that evidence specific pattern of behavior and to rebut fabrica- 404(b) under admissible rule must meet the re- justification tion and we deem defenses since quirements of rules 402 and 403. de- prior properly that the bad acts evidence was spite language, the absence of such under the motive, specifical- admissible to show intent and version, current evidence must still conform with designated permissible ly purposes non-character rules 402 and 403 in order to be admissible. See 404(b). under rule id.
299
physical
spouse
of
is
addition,
prior
prior
of
abuse
admissi
of the
In
evidence
35
intent);
prove
intent
to
motive or
State v. Ja
helps prove Defendant’s
ble to
assault
(co
7,10
cobs,
kidnaping.
(Mo.Ct.App.1997)
aggravated
939 S.W.2d
commit
ncl
kidnaping, by
aggravated
uding
prior
charged with
that evidence of
domestic abuse
tended to establish intent and motive for
Hines,
crimes); People
knowingly,
charged
v.
260
intentionally
without
person
or
646,
66,
(N.Y.App.
against the will of the A.D.2d
690 N.Y.S.2d
67
authority
law and
Div.1999)
manner,
(permitting
prior
victim,
evidence of
do
by any means and
detains,
confines,
seizes,
transports
or
the mestic incidents to establish defendant’s mo
Johnson,
uses,
tive);
1, 3,
73
Misc.2d
possesses,
Ohio
...
and ...
victim
(Hamilton
383,
dangerous weapon ...
657 N.E.2d
384
Co. Mun.
use a
threatens to
Ct.1994)
injury
(holding
by
bodily
prior
on or
bad acts
defendant
...
to inflict
with intent
against
victim
in domestic
or another.
same
admissible
terrorize the victim
to
prove
motive
violence cases to
intent and
76-5-302(1) (1999).
§
Be
Ann.
Code
Utah
Laible,
404(b));
v.
594
under
rule
State
in
kidnaping
specific
is a
aggravated
cause
(“When
(S.D.1999)
328,
an ac
N.W.2d
crime,
May 18 assault is
of the
tent
relationship with the vic
cused had a close
Teuscher,
See State
material thereto.
tim, prior aggression,
threats or abusive
(“‘Where
(Utah
922,
Ct.App.1994)
P.2d
treatment of the same victim
the same
crime, the
an element of the
specific intent is
perpetrator are admissible when offered on
other
may introduce evidence of
prosecution
[rjule 404(b).”).
issues under
relevant
of in
the element
to establish
offenses
(Citation omitted.));
...’”
tent.
cf.
Next, we consider whether Wife’s
(Utah
Morrell,
Ct.App.
testimony
relevant under rule 402. See
“[ajdmission
1990) (noting
prior
bad acts is
¶ 32,
Fedoronricz,
at
prove
a contested
proper when it tends
mentioned,
prior
previously
1194. As
charged”).
of the crime
material element
prove
bad acts evidence is relevant
mate
prior
conduct is
Defendant’s
assaultive
bodily
specific intent “to inflict
Defendant’s
it shows
the element of intent because
rial to
injury
Utah Code
[Wife].”
on or to terrorize
engaged in violent be
that Defendant had
5—302(l)(b)(iii).
addition,
§
In
Ann.
76—
against
prior
occasion and
havior
Wife on
choking
incident is relevant
threatening
easily
the same
behav
could
use
was the
refute Defendant’s claim
future.
the victim”
ior “to terrorize
August
episode.
perpetrator
in the
76-5-302(l)(b)(iii).
§Ann.
Utah Code
prior
tended to
evidence of the
have allowed evidence
36 Other courts
version of the events on
make Wife’s
committed
prior
acts of domestic violence
probable than without
more
against
by a defendant
the same victim
(defining
Utah R. Evid. 401
evidence. See
See, e.g.,
intent.
Baker v.
prove motive and
evidence).
evidence is
Because the
relevant
State,
CR-95-0292,
Ala.Crim.App.
No.
charged
offense
material to an element
(Jan. 12,
*113,
evidence of requires the trial acts threats is admissible to show motive bad *9 Gibbons, the evidence is mind); Kan. court to determine whether of State v. 256 state 951, 772, (noting rule 403.6 See State evidence admissible under 889 P.2d 780 was Although judge expressly inquire into whether the evidence did not en court did 6. the trial pur proper, gage scrupulous for the non-character a examination of the evidence admissible in Shickles, poses State v. by outlining step of motive and intent. See the evidence under each re 1988). 291, (Utah Considering 404(b) by quired dence, the Rules of Evi 760 P.2d 295-96 rule Utah testimony the or including application the trial court did not strike of the Shickles that that, satisfy requirement, after the State confirmed the revisit the matter factors to the rule 403 300 jurors 66,¶ 59, determining in 1210. Defen evidence assisted the
Bluff, 52 P.3d 2002 UT description description was more or less of events contends that Wife’s whose dant 1999, Thus, necessary. 18, “inherently probable. the May had an evidence on assault outweighed any prejudicial far [that] effect ¶ Further, pri- without evidence of the probative value to the incident three minimal 18, episode May violence on or domestic applying In the fac months later.” Shickles of alternative there would be an absence case, that tors to this we conclude Wife’s support aggravated kidnaping proof to the 18, May testimony about the 1999 assault charge only pre- direct evidence since the prejudicial. probative more than August 12, concerning the 1999 inci- sented ¶ First, testimony and Defendant’s strong evidence that dent was Wife’s there is 18, testimony. direct evi- May As a There was no other the 1999 assault occurred. incident, protec- a dence that the incident inside the home oc- result of the Wife obtained Also, Also, by party. against Defendant. Defen- curred as described either tive order eyewitnesses no to the offense episode not refute that the oc- there were dant does curred, only testimony concerning parties the besides the themselves. that event should have been excluded. ¶ Finally, testimony Wife’s would not
¶
Second,
jury
hostility.
May
overmastering
the
the
18 assault is similar
rouse
Generally,
concerning May
August
to the
12 incident.
each The evidence
the
18 assault
violence. was “no worse than the evidence” of the
incident was a form of domestic
12,
Although
August
presented
the second event involved
fire-
1999 incident that was
Widdison,
52,
arm,
jury.
life-threatening aggres-
to the
301 apartment, so as to be proper, non-character a rented entitled offered for was motive, relevant, challenge apart- and was a warrantless search of the purposes of intent ment, prejudicial. probative than when his or her acts and intent indi- and was more prem-
cate that he or she has abandoned the
II. Abandonment
68
Searches and
ises.”
Am.Jur.2d
Seizures
(2002).
§
23
contends that
47 Defendant
erred
it admitted testi
the trial court
when
Here, Defendant
left
49
written
concerning
telephone
re
mony
numbers
notice with his landlord that he would be
system
from Defendant’s caller I.D.
trieved
job
leaving
apartment.8 Defen
his
and/or
apartment
Detec
because
inside Defendant’s
performing
dant had
maintenance
ceased
Croyle
a search warrant.
tive
did not have
apart
stopped paying
and
rent for the
duties
protected
premises are
Leased or rented
Also,
ment.
Defendant had not been seen
against
searches and seizures.
unreasonable
days. Thus,
for several
the landlord followed
Kent,
64,
1,
P.2d
20 Utah 2d
432
See State
“
procedures
apart
to deem the
established
(1967). However,
individuals
‘[w]hen
66
abandoned,
notice,
i.e., posting
leaving
ment
property,
they
voluntarily abandon
forfeit
days.
importantly,
the notice for a few
Most
they
any
privacy in
expectation of
it
”
“just
that he
[the]
testified
left
Rowe,
might
have had.’
apartment” by giving the landlord “notice to
(Utah
(citations
730,
Ct.App.1991)
omit
736
longer paid
out”
no
move
and
he
rent
ted),
grounds,
P.2d 427
rev’d on other
850
because he “wasn’t there.”
(Utah 1992);
also 68 Am.Jur.2d Searches
see
(2002) (stating
§
an individ
and
Seizures
specifical
Although
no
case law
Utah
“may relinquish
or her reasonable
ual
his
ly addresses
the abandonment of leased
privacy
property,
in a
expectation of
rented
property,
have
other courts
determined
right
challenge a
and thus lose the
search
occurred in the
and sei
abandonment
search
premises, by abandoning
proper
zure context under similar factual circum
voluntarily
ty”).
person
who has
State,
553,
Baggett v.
254 Ark.
stances. See
property
standing
abandoned
“lacks
(1973)
717,
(concluding
there
S.W.2d
Fisher,
to a
or seizure of it.” State v.
search
partly on defendant
was abandonment based
(1984).
141 Ariz.
P.2d
keys
terminating
turning
apartment
over
owner);
employment
property
People v.
a search and seizure
with
48 Under
Cal.App.2d
Cal.Rptr.
analysis,7
Urfer,
whether
abandonment has oc
(determining apartment
“primarily
question
(Cal.Ct.App.1969)
a factual
of 60
curred is
abandoned,
belong
voluntarily relinquish
although furniture and
intent to
a reasonable
remained,
may
ings
defendant had not used
expectation
privacy,
of
be inferred
when
Madera,
time);
done,
apartment for
spoken,
from ‘words
acts
and other
some
”
(hold
Rowe,
objective
facts.’
was ness, (2) perfor- premises returned to and trial deficient that defendant counsel’s dence occurred); Clark, prejudiced by depriving State v. 105 mance offense after 687, 10, 949, him trial. (N.M.Ct.App. 952 of a fair See id. at 104 S.Ct. 727 P.2d N.M. 2052; 1986) Bryant, v. 542 (concluding State 965 P.2d abandonment occurred (Utah Ct.App.1998). “If a defendant fails to unpaid, rent was eviction notice was when of the parts establish either two of posted, landlord heard defendant was incar- test, Strickland counsel’s assistance was con- cei’ated, arrangements and were made with sufficient, stitutionally need not ad- we possessions); to remove defendant’s sister part dress other of v. the test.” State Branch, generally v. Idaho see State 133 Medina-Juarez, 79,¶ 14, 2001 UT 34 P.3d (1999) (noting 984 P.2d indica nonpayment of to include tors abandonment furniture, clothes, etc.; rent; of of removal reviewing deficiency alleged 54 “In utilities;
nonpayment
of
or disconnection
performance,
in-
counsel’s
we must
neighbors; and
statements to landlords or
dulge
strong presumption
in the
that coun-
control
other acts inconsistent with tenant’s
range
sel’s conduct falls within the wide
of
occupation
premises).
of
professional
Bryant,
reasonable
assistance.”
(internal
quotations
P.2d at 542
and cita-
actions
We conclude that Defendant’s
omitted).
tion
Defendant “must overcome
failing
rent, being
to
absent
pay
from
presumption
challenged
that
...
ac-
premises,
providing
formal notice to the
might
tion
be considered sound trial strate-
landlord that
move
he was to
termi-
and/or
(internal
gy.”
quotations
Id.
and citation
employment
nate his
intent
demonstrated his
omitted);
Maestas,
32,¶ 20,
to abandon
apartment.
(stating
“there is no cumulative error.” State v. Insufficiency Medina-Juarez, of the Evidence IV. UT 187. argues 66 Defendant that the evidence support a at trial was insufficient to convic- aggravated kidnaping. the
tion for CONCLUSION primary argument, focus of Defendant’s ¶ 70 conclude that the trial did We court which is somewhat mischaracterized as permitting not abuse its discretion in toWife claim, insufficiency aggravated the is testify prior about a assault under rule charge the host assault should have been 404(b). Also, the court did not err when aggravated kidnaping merges. crime in which proper it found a warrantless search because engage in a 67 We decline to apartment. Defendant had abandoned his analysis merger because Defendant did not deprived right Defendant was not of his charge aggravated to the assault as a effective assistance of counsel and there was a lesser includ lesser included offense.9 As support sufficient evidence to his conviction offense, aggravated assault ed becomes aggravated kidnaping, for which not sub- predicate greater offense to the crime of ject merger. Finally, because there were Thus, aggravated kidnaping. trial, is no errors at the cumulative error doc- having aggra not entitled to the benefit of inapplicable. trine is vated assault be a lesser included offense and
then, crime, upon proof greater char 71 I M. CONCUR: JUDITH charge acterize the lesser as a host crime BILLINGS, Presiding Judge. Associate greater merged. offense is Because ORME, Judge (concurring result upon greater convicted offense part): aggravated kidnaping, aggravated as charge longer dispute sault is no at issue. See State 72 There was no real this (Utah 1986) Shaffer, concerning intent. case Defendant’s Defen- (“If greater proven, crime is then the dant not claim he detained the victim did it.”). Therefore, merges dangerous weapon purpose lesser crime into with some challenge aggravated aggravated is in fact a lesser included offense to Because there is no offense, being assault a lesser included it is not kidnaping. necessary aggravated to review whether (Had so, he her. done than to terrorize other very prior incident would be of the indeed.) contrary, he claimed
telling On merely removed gun and he had the she dangerous confrontation. Evi- it to avoid a prior incident of his serious dence compellingly the victim aggression toward credibility of this contention. undercuts the fully more set forth in for the reasons my opinion in Judge opinion and Thorne’s Bradley, 1139,1 basis on which to believe sounder bad act evi- premise admission of *14 was to refute Defendant’s fabrication dence justification defenses. only I concur in the result of also wholly opinion. II I find it Section unnecessary the issue of Defen- to reach apart- his claimed abandonment of
dant’s ment, that admission of the data as it is clear completely
from his “caller i.d.” device was thus, and, inconsequential to his conviction beyond harmless a reasonable doubt. of the court’s 74 I concur the balance opinion. GILLEY, Plaintiff
Melinda Appellant, BLACKSTOCK; Depart Barton G. Safety, of Driver ment of Public Office Services, Appel Defendants and License lees.
No. 20010828-CA. Appeals of Court of Utah. Dec.