STATE of Utah, Appellee, v. Percy L. WILDER, Appellant.
No. 20140416-CA
Court of Appeals of Utah.
Filed October 20, 2016
2016 UT App 210
Sеan D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee.
Opinion
ORME, Judge:
¶1 Defendant Percy L. Wilder appeals his convictions for aggravated kidnapping and aggravated sexual assault, both first degree felonies. Defendant challenges the sufficiency of the evidence supporting his aggravated kidnapping conviction and alleges that he received ineffective assistance of counsel when his trial counsel failed to argue that the aggravated kidnapping сharge merged with the aggravated sexual assault charge. He also claims that the trial court erred when it denied his request for a post-trial evidentiary hearing to question an allegedly biased juror. We affirm.
BACKGROUND2
¶2 Defendant and the victim separately attended a party at the home of a mutual acquaintance. Around 1:30 a.m., Defendant asked the victim if she would go outside to talk to him. She told him no—multiple times. But eventually the victim went out to her car to get her cellphone, and Defendant followed her. Once outside, Defendant continued to ask the victim to talk, but she declined, saying she wаs cold and needed to get back to the party. Nonetheless, Defendant opened the driver-side door of his car and asked the victim to sit down. Hoping he would leave her alone if she spoke with him, the victim sat down on the edge of the driver-side seat. Defendant then asked her to move over, and when she did not, he sat down anyway. So she moved into the passenger seat, opened the passenger-side door, and hung one foot out the door.
¶3 While the victim‘s leg was still outside the car, Defendant started the car and began driving. Fearful that she would be run over if she tried to escape, the victim remained in the car and closed the door. She did, however, ask Defendant to stop. Defendant told the victim that he was going to give a friend a ride, but he did not pick up a friend. Instead—of all things—he began repeatedly asking her for oral sex, a request that she steadfastly refused.
¶4 At around 2:00 a.m., after having driven a short distance, Defendant parked in the back of an apartment complex parking lot. There were no other people in the lot. Defendant then demanded that the victim undress and give him oral sex. Defendant became enraged when the victim refusеd, and he threatened to “cut [her]” if she got out of the car. Defendant next tried to put his hand up the victim‘s shirt, but the victim pushed him away. He reacted by reaching across her and biting her right breast through her clothing.
¶5 To enhance her mobility, the victim removed her high-heeled shoes. Defendant interpreted this, however, as her beginning to undress, and he ordered her to proceed. When she did not, he threatened to “gut [her] from head to toe” if she did not immediately undress. Instead, the victim opened the car door and jumped out. Defendant grabbed the back of her pants, but she broke free of his grasp. The victim testified at trial that she had been in Defendant‘s parked car for approximately ten minutes.
¶6 Free of Defendant, the victim ran into the apartment complex, where she pounded on doors and screamed for help. Defendant ran after her, and when he reached her, he grabbed her by the hair and began dragging her back toward his car. According to the victim‘s estimate, he did this for about ten seconds, and they traveled only about two steps. The victim then was able to lock her legs and brace herself between the hallway walls. In response, Defendant punched hеr in the face and then released her. Defendant fled, and the victim sought help. Residents heard the victim and came to her aid, and she called 911 and reported the incident. Following his apprehension, the State
¶7 Sometime after trial but before sentencing, Defendant‘s daughter remembered that one of the jurors (Juror) had attended junior high school with her brothers, Defendant‘s sons. Both Defendant and the State interviewed Juror. Defendant moved the trial court to arrest the verdict, asserting that Juror knew Defendant‘s children and was biased against him.3 In this motion, Defendant also alleged that Juror remained in the courtroom for improper reasons after the jury had been dismissed. The State countered that Juror remained in the courtroom only to ask about his payment for jury service.
¶8 The State subsequently submitted its taped interview with Juror as evidence that he was not biased. In the interview, Juror admitted to the State‘s investigator that he briefly attended Defendant‘s sons’ junior high school and that he knew one of the sons in junior high, but Jurоr also said he had not remembered the connection until after trial because he attended multiple junior highs. He also claimed that he did not know Defendant‘s daughter and that he was unaware of any aspect of Defendant‘s circumstances prior to trial.
¶9 Although Defendant‘s counsel had interviewed Juror, Defendant proffered no evidence showing that Juror‘s account, as submitted by the State, was false or demonstrating Juror‘s bias. Instead, Defendant insisted that Juror had in fact attended school with Defendant‘s sons for three years, claiming that Juror appeared in the school‘s yeаrbook each of those years.4 But Defendant never presented the yearbooks as evidence. The court decided that it would watch the State‘s interview video and make its decision. After a period of more than three months, during which time the court held four hearings, the court denied Defendant‘s request for an evidentiary hearing, concluding that there was insufficient information to warrant further inquiry.
¶10 After denying Defendant‘s motion for a new trial, the court sentenced Defendant to two sentences of fifteen years to life in prison, to be served concurrently with one another but consecutively to a sentence Defendant was already serving on an unrelated conviction. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Defendant raises three issues on appeal. First, he asserts that the trial court abused its discretion when it denied his request for an evidentiary hearing in which Juror could be called to testify. We review the trial court‘s denial of an evidentiary hearing, and, therefore, of the motion for new trial, for an abuse of discretion. See State v. Loose, 2000 UT 11, ¶ 16, 994 P.2d 1237. “[L]egal determinations made by the trial court as a basis for its denial of a new trial motion are reviewed for correctness.” Id. ¶ 8.
¶12 Second, Defendant argues that there was insufficient evidence to convict him of
¶13 Third, Defendant contends that his trial counsel was ineffective for failing to argue that the aggravated kidnapping charge merged with the aggravated sexual assault charge. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 16, 89 P.3d 162. A defendant who claims ineffective assistance of counsel must show “that counsel‘s performance was deficient” and prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion by Denying Defendant‘s Motion for New Trial.
¶14 Defendant first argues that the trial court should have granted him an evidentiary hearing to question Juror, who attended junior high with both of Defendant‘s sons but did not disclose that information during voir dire.5 Defendant argues that he was entitled to a trial by an impartial jury and that because Juror could have been challenged for cause during voir dire, the court or counsel should have more fully investigated Juror‘s familiarity with Defendant. He asserts that, because his motion for a new trial alleged juror misconduct, the motion should have triggered such an investigation, including “full questioning by both parties” in an evidentiary hearing.
¶15 A motion for a new trial must “be accompanied by affidavits or evidence of the essential facts in support of the motion.”
¶16 Defendant alleged in his new trial motion that Juror attended school with his sons, that it was common knowledge at the school that Defendant was in prison, that Juror knew Defendant‘s daughter, and that Juror was the only member of the jury to linger in the courtroom after the jury was dismissed. But Defendant provided no affidavits or оther evidence to support these allegations, even though he interviewed Juror, possessed the yearbooks he claimed would show that Juror attended school with his sons for three years, and could, presumably, have gotten sworn statements from his children about their acquaintance with Juror and the basis for the claim that their father‘s imprisonment was a matter of common knowledge at the school. Thus, we cannot conclude that the trial court abused its considerable discretion in determining an evidentiary hearing to evaluate new evidence was unnecessary, when Defеndant produced only innuendo and supposition rather than actual evidence.
¶17 Defendant next argues that there was insufficient evidence to support his conviction for aggravated kidnapping. At trial the State argued either of two episodes could constitute an aggravated kidnapping: (1) when the car was parked in the apartment complex parking lot and Defendant bit the victim or (2) when Defendant pulled the victim by the hair inside the apartment complex. Defendant cоntends that even if the jury believed all of the evidence that the State offered regarding these two episodes, neither constituted aggravated kidnapping. Because the State focused its response on the incident inside the apartment complex, we do the same.
¶18 To prove that an aggravated kidnapping occurred, the State must demonstrate that either a kidnapping or an unlawful detention occurred, in conjunction with aggravating circumstances. Kidnapping is defined by Utah law, in relevant part, as “intentionally or knowingly,” in violation of the law and against the victim‘s will, “detain[ing] or restrain[ing] the victim for any substantial period of time” or “detain[ing] or restrain[ing] the victim in circumstances exposing the victim to risk of bodily injury.”
¶19 Whether aggravating circumstances existed during the episode in the apartment complex is not a close question. During the detention, Defendant intentionally inflicted bodily injury on the victim by punching her in the face while he was still holding her by the hair. See
¶20 Although a closer question, a reasonable jury could also have concluded that the episode in the hallway was an unlawful detention and, in conjunction with the infliction of bodily injury, an aggravated kidnapping. Defendant contends that the ten seconds during which he pulled the victim by her hair was too brief to satisfy the statute. But while the “kidnapping” alternative under the aggravated kidnapping statute may require “detain[ing] or restrain[ing] the victim for [a] substantial period of time,” the “unlawful detention” alternative does not. Compare
¶22 Based on Sanchez and the plain meaning of “detains or restrains,” the question before us is whether a reasonable jury could have concluded that Dеfendant intentionally acted, however briefly, to impair the victim‘s ability to move freely. Here, the victim attempted to escape from Defendant by running down an apartment complex hallway and knocking on doors. Like in Sanchez, Defendant overpowered the victim by intentionally grabbing her hair as he tried to drag her down the hallway. He stopped her in her tracks and pulled on her, causing her to move backwards. Further, although he did not succeed in dragging her all the way back to his car, a reasonable jury could have inferred that his actions prevented her from escaping at that timе. The plain meaning of the detention statute encompasses these events. See Finlayson II, 2014 UT App 282, ¶¶ 38-45 (concluding that the defendant‘s efforts to prevent the victim from escaping through either the front or back door and then sitting on her constituted aggravated kidnapping when committed “with intent to inflict bodily injury” and “with the intent to hinder or delay the discovery or reporting of a felony“); State v. Ellis, 2014 UT App 185, ¶ 10, 336 P.3d 26 (concluding that the defendant detained the victim, even though she was allowed to move about within the walls of her own home, because the defendant did not allow the victim to move freely away from him and used physical force to continue the confinement and keep her from escaping). We are not convinced that “reasonable minds must have entertained reasonable doubt” that Defendant exercised the control necessary to constitute a detention for purposes of the aggravated kidnapping statute. See State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993).
¶23 Finally, Defendant contends that even if there was sufficient evidence to support his aggravated kidnapping conviction, his trial counsel was ineffective for failing to argue that the two convictions should merge. To prove ineffective assistance of counsel, Defendant must show that trial counsel‘s decision not to move for merger was objectively unreasonable, and therefore deficient, and that the decision prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Because we hold that Defendant‘s two convictions did not merge as a matter of law, Defendant was not prejudiced by his counsel‘s failure to make the argument and, therefore, his counsel was not ineffective. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not constitute ineffective assistance of counsel.“).
¶24 Merger protects defendants from multiple punishments for different but related offenses arising out of the same criminal activity. State v. Lee, 2006 UT 5, ¶ 31, 128 P.3d 1179 (“Where two crimes are defined narrowly enough that proof of one does not constitute proof of the other, but broadly enough that both may arise from the same facts, merger may be appropriate.“). Merger commonly applies when “a defendant . . . [is] charged with committing both a violent crime, in which a detention is inherent, and . . . kidnaping based solely on the detention necessary to the commission of the [violent] crime.” State v. Diaz, 2002 UT App 288, ¶ 17, 55 P.3d 1131. Thus, wе must determine whether the kidnapping was “merely incidental or subsidiary to [the violent] crime.” State v. Couch, 635 P.2d 89, 93 (Utah 1981).
¶25 To do so, we require the State to prove that the detention of the victim (1) was not “slight, inconsequential and merely incidental to the other crime,” (2) was not “the kind inherent in the nature of the other crime,” and (3) had “some significance independent of the other crime.” State v. Finlayson (Finlayson I), 2000 UT 10, ¶ 23, 994 P.2d 1243 (citation and internal quotation marks omitted). Applying this three-part test in Finlayson I, where a defendant blocked his victim‘s escape during a sexual assault and then handcuffed her so that he could continue the assault, id. ¶ 4, our Supreme Court concluded that the defendant‘s convictions for aggravated sexual assault and aggravated kidnapping should have merged. Id. ¶¶ 23-24. Merger was appropriate because the acts of detention were committed during the course of a sexual assault, did not exceed the time necessary for the sexual assault, and had no independent significance from the assault. Id.
¶26 In Finlayson II,8 we applied the Finlayson I test and held that the defendant‘s convictions for aggravated assault and aggravated kidnapping did not merge. Finlayson II, 2014 UT App 282, ¶ 53. There, the defendant physically assaulted the victim in their shared residence before she briefly еscaped. Id. ¶ 2. When the victim broke free of the defendant and ran to the front door of the house, the defendant blocked the door. Id. ¶ 4. He then threw her off of a landing and down a flight of stairs to the basement, strangled her again, and sat on her for twenty minutes. Id. ¶¶ 4-5. Merger was inappropriate because the acts of detention—blocking the victim‘s exit from the house and sitting on top of her—were not inconsequential and the period of restraint was not incidental, as he held her for more than the amount of time necessary to complete the original assault. Further, the detention was not “inherent in the nature of the aggravated assault” but was independently significant because he could have pushed her down the stairs without also detaining her. Id. ¶¶ 51-52.
¶28 In Sanchez, we held that merger did not occur when a defendant assaulted a victim who subsequently escaped to an apartment down the hall from where the original assаult occurred, whereupon the defendant caught up to the victim and dragged her fifty-eight feet down a hallway and back into his own apartment to prevent her from getting help. 2015 UT App 27, ¶¶ 2-3, 12, 16. He then bit her ear so hard that it was nearly ripped off. Id. ¶ 3. These activities were not inherent in the initial simple assault. Id. ¶ 12. In both cases, our analysis focused on the defendants’ overpowering their victims and dragging them to different, less public locations. Lee, 2006 UT 5, ¶ 34; Sanchez, 2015 UT App 27, ¶ 12.
¶29 Here, if the State based its aggravated kidnapping charge only on the episode in the car, Finlayson I would be dispositive. In the car, Defendant controlled the victim, and she was not free to leave, as illustrated by his threatening to gut her and grabbing her pants in an attempt to prevent her escape. But he detained her only for the purpose of continuing the ongoing sexual assault, as was the case in Finlayson I.
¶30 The aggravated kidnapping conviction in this case can, however, readily be sustained on the basis of the events in the hallway, which are much more similar to Finlayson II, Lee, and Sanchez. In each of those cases, the defendant, after an initial assault, stopped the victim‘s escape and then detained her. As in those cases, Defendant sexually assaulted the viсtim before she successfully escaped, and then he initiated a new criminal act by impeding her movement—grabbing her hair and pulling her down the hallway. Similar to the defendants throwing the victim down the stairs in Finlayson II, kicking and disrobing the victim in Lee, and biting and bloodying the victim in Sanchez, Defendant here detained the victim long enough to commit an uncharged assault by punching her in the face. And as in the previous cases, while the dragging was only for a short period of time, that period exceeded the time Defendant needed to commit the sexual assault, as that crime was already complete when the victim escaped from Defendant‘s car and began frantically searching for help in the apartment complex. Thus, the hair pulling and dragging down the hallway were not incidental to the sexual assault but were a part of a subsequent physical assault. Likewise, the detention was not of the kind inherent in the sexual assault because it came after the completion of the sexual assault. Finally, the acts of detention had independent significance because, as in Finlayson II, Defendant did not need to chase the victim and do violence to her in order to perpetrate the sexual assault. And as in Sanchez, it is fair to infer that Defendant detained the victim, in part, to keep her from finding help and reporting the sexual assault.
CONCLUSION
¶32 Defendant has failed to persuade us that any of his claims on appeal have merit. First, Defendant did not produce evidence in support of his motion for new trial, and we defer to the trial court‘s substantial discretion in denying the requested new trial for lack of evidence. Second, there was sufficient evidence from which a reasonable jury could have found that Defendant committed an aggravated kidnapping. And third, Defendant‘s trial counsel did not provide ineffective assistance for failing to argue merger when, as a matter of law, merger was not appropriate in this case and any such motion would therefore have been futile.
¶33 Affirmed.