Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Utah, ) MEMORANDUM DECISION
)
Plaintiff Appellee, ) Case No. ) ) F I L E D
) (September 2012) Jonathan Eric Zaragoza, )
) App 268 Appellant. ) ‐‐‐‐‐
Third Distriсt, Salt Lake Department, 091904897 Honorable Michele M. Christiansen, Honorable Anthony B. Quinn,
Honorable Dennis M. Fuchs
Attorneys: Troy L. Booher Christopher L. Stout, Salt Lake City, for Appellant
Mark L. Shurtleff Karen A. Klucznik, Salt Lake City, Aрpellee ‐‐‐‐‐
Before Judges Thorne, McHugh, Roth.
THORNE, Judge: ¶1 Defendant Jonathan Eric Zaragoza appeals convictions aggravated kidnapping, Utah Code Ann. § (2008), assault, see id. § Judge Anthony B. Quinn presided over Judge Michele M. Christiansen conducted pretrial hearing State’s motion admit certain finding part Defendant. Judge Dennis M. Fuchs presided over sentencing.
(2008), ‐ 5 ‐ 76 § id. child, a of presence the in violence domestic and [2] 109.1 (Supp. 2012). [3] We affirm.
¶2 Defendant’s charges arise dispute wife, Ms. Zaragoza (Wife), motel where couple was staying friend Wife’s eight ‐ year ‐ old daughter. After incident, Wife contacted police, who photographed motel room Wife’s injuries. Wife gave two witness statements to police. Before trial, Wife invoked her state constitutional spousal testimonial privilege, stating that she would not testify against Defendant. The State moved admit Wife’s witness statements under ‐ ‐ arguing forfeited any confrontation challenges admission Wife’s out ‐ statements when procured unavailability. The held an evidentiary hearing grаnted State’s motion.
¶3 At trial, presented Wife’s witness describing what had happened motel room. [4] On morning second day defense counsel argued Finlayson 2000 994 applied matter following proposed instruction:
You instructed law does allow double punishment same act. Accordingly, you find guilty both kidnaрing charge an assault charge unless you find beyond reasonable doubt any detention [Wife] was independent not merely incidental [Wife]. Accordingly, if you find [Defendant] assaulted [Wife] оver period 5 ‐ 76 § Ann. Code Utah See ‐ 2010. amended was 103 ‐ ‐ Section (historical notes) (Supp. 2012). Because statute has since been amended, cite version statute under which was charged. Mаy effective amended was 109.1 section version current See Utah Code Ann. § 109.1 (historical notes) (Supp. 2012). amended version statute version effect was charged. Defense counsel noted standing objection out statements.
time, but he did not detain or restrain for any significant period time, addition time taken up assault, you not find him guilty kidnaping. trial denied defense counsel’s proposed instruction. jury convicted aggravated kidnapping, aggravated assault, commission domestic violence presence a child. now appeals arguеs he is entitled a new because trial erred it (1) denied Defendant’s request for a jury instruction aggravated assault as a lesser included offense aggravated kidnapping (2) admitted hearsay at trial.
I. Jury Instruction
¶4 Defendant first failing instruct jury on lesser included relationship aggravated kidnapping. “Whether instruction a lesser included offense appropriate presents quеstion law,” State v. Spillers , UT 13, ¶ 10, P.3d 315, which is reviewed correctness, v. Daniels , UT ¶ 27, P.3d Under State Baker , P.2d 1983), defendant entitled lesser included offense instruction when
(1) two offenses related because some their statutory elements overlap, evidence at greater offense involves proof some or all those overlapping elements; (2) evidence provides a rational basis verdict acquitting defendant offense charged сonvicting lesser included offense. Evans ¶ (citing Baker , P.2d 159). However, we
do reach Defendant’s offense argument because not preserved below.
¶5 At did request instruction nor did object failure include instruction its *4 proposed jury charge. [5] Insteаd, defense counsel requested merger doctrine instruction based on Finlayson , 2000 UT On appeal, trial refusing give Defendant’s requested jury instruction explaining the lesser included relationship between kidnapping and aggravated assault. conflates merger doctrine with lesser included offense legal concept. jury instruction requested pertained merger doctrine argument and instructed jury merger doctrine concept included offense.
¶6 Lesser included offenses are “those where two crimes are such the greater cannot be committed without necessarily having committed lesser.” Finlayson , P.2d 287 Ct. App. 1998) (internal quotation marks omitted); see also Kerr , UT App ¶ n.1, P.3d (mem.) (citing Finlayson , P.2d at discussing analytical distinction merger and concept). “While [the the merger doctrinе] indeed overlap certain circumstances, they analytically distinct.” Kerr , App ¶ n.1.
For example, merger doctrine, which is most commonly applied situations involving defendant who has been charged committing both violent crime, which a detention is inherent, crime kidnaping based solely detention necessary commission companion crime, [and] useful determining whеther a detention or movement victim significantly independent another crime justify separate conviction kidnaping. Id. (citation internal quotation marks omitted) (citing Finlayson at 289). instruction issue this case instructs jury “may find guilty both kidnaping charge [an] charge unless you find Defense counsel clarified only exceptions proposed instructions were should have merger doctrine instruction omitted both definition serious bodily injury flight instruсtion.
beyond a reasonable doubt that any detention [Wife] was
independent not merely
incidental to
[Wife].” (Emphasis added.) This is very different a
‐ instruction instructing the that “an offense is lesser
when proof one crime necessarily proves all elements the second
crime.”
State v. Brooks
,
II. Hearsay Statement
¶7 Defendant next that court erred when admitted out utilizing forfeiture by wrongdoing doctrine. Forfeiture by wrongdoing forecloses defendant’s constitutional right be confronted with the witnesses against him defendant’s affirmative acts caused witness be unavailable. See State Poole , UT 25, ¶ 10, P.3d аsserts that his conduct in this case is not type conduct that justifies forfeiture his confrontation clause rights. “decision admit testimony may implicate confrontation clause . . . question law reviewed correctness.” Id. ¶ (internal quotation marks omitted).
¶8 doctrine forfeiture by wrongdoing applies if can show “(1) witness unavailable (2) witness’s unavailability was caused wrongful act , (3) defendant’s act done an intent make witness unavailable.” Id. ¶ (emphasis added). In this case, applied reach its conclusion caused Wife’s appeal argue does states brief reply in trial its merger ruling. test prongs third dispute does first Poole ¶ met this matter.
unavailability through the wrongful act of contacting Wife times by phone. The court found that calls were intended to influence and were made in violation of no contact order. Defendаnt asserts that court’s application of was overly expansive, essentially concluding that any act, including encouraging spouse to withhold privileged testimony, undertaken intеnt procure witness’s unavailability is per se wrongful. In challenging court’s wrongful act determination, Defendant fails to acknowledge that specific acts the court considerеd in its determination—276 phone calls Defendant initiated from jail—were undertaken violation of no contact order. court specifically referenced those phоne calls and content of those calls and found that there was more than preponderance evidence to show that “this engaged in witness tampering to attempt tо induce someone withholding testimony, change somebody’s testimony, influence testimony that be given trial.” These findings sufficient to establish second prong test that caused unavailability wrongful act contacting Wife by phone times in violation no contact order.
found that was “fairly clear” that “there was plenty influence” including reminders past, offers and withdrawals forgivеness, indications change references to God or higher power, discussion relationship. Even if we were to conclude finding Defendant’s
acts were type conduct justifies his rights under confrontation clause, we conclude such error harmless because was denied right to confront Wife. At called Wife to testify. Wife testified willingly answered defense counsеl’s questions. Because was provided sufficient opportunity cross examine Wife, conclude was afforded right confrontation. Cf. Nelson 1986) (“The essence confrontation right opportunity have accusing witness subject cross examination, so bias credibility can be evaluated finder fact. If witness physically present subject cross examination, . . . these values would seem be satisfied.” (citations internal quotation marks omitted)).
¶9 In summary, Defendant argues court failed to instruct jury on ‐ relationship aggravated kidnapping. Defendant did not, howevеr, request ‐ instruction. Instead, Defendant merger instruction. Therefore, Defendant failed preserve ‐ argument, decline address this claim first time appeal. Defendant also court when it admitted Wife’s out ‐ ‐ statements. admitted statements under by doctrine, finding caused Wife’s unavailability placing phone calls Wife violation no contact order an effort influence testify State. court’s findings sufficient to establish caused Wife’s unavailability wrongful act. As such, we no error determination forfeited right confront Wife. Even so, Wife subsequently testified providing with an opportunity cross examine Wife. Thus, even if there had been error in admitting out cured Wife subsequently testified. ¶10 Affirmed.
____________________________________
William A. Thorne Jr., Judge
‐‐‐‐‐
¶11 WE CONCUR:
____________________________________
Carolyn B. McHugh, Judge
____________________________________
Stephen L. Roth, Judge