State v. Finlayson
| Decision Date | 02 April 1998 |
| Docket Number | No. 960387-CA,960387-CA |
| Citation | 956 P.2d 283 |
| Parties | 340 Utah Adv. Rep. 21 STATE of Utah, Plaintiff and Appellee, v. Jeffrey Russell FINLAYSON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Jeffrey Russell Finlayson appeals his jury conviction for aggravated kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1995), forcible sodomy, a first degree felony, in violation of Utah Code Ann. § 76-5-403(2) (1995), and rape, a first degree felony, in violation of Utah Code Ann. § 76-5-402 (1995). We reverse defendant's aggravated kidnaping conviction and affirm all other aspects of defendant's conviction.
" 'In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict' and recite the facts of this case accordingly." State v. Scales, 946 P.2d 377, 379 (Utah Ct.App.1997) (quoting State v. Dunn, 850 P.2d 1201, 1205-06 (Utah 1993)).
The victim here was a Japanese student who, at the time of the incident, had been in the United States for approximately ten months and spoke little or no English. Defendant approached the victim on campus at Salt Lake Community College, where they both attended classes. Defendant, who is fluent in Japanese, asked the victim if she would be willing to tutor him in his Japanese studies. Phone numbers were exchanged and the two ultimately set a date for October 5, 1994.
Defendant picked the victim up at her apartment, and they went to dinner. Although their original plan was to study at the school library after dinner, defendant said he had forgotten a needed book and drove to his apartment to retrieve it. When they arrived, defendant asked the victim to come inside to see certain Japanese souvenirs defendant had acquired while in Japan. Once inside, defendant told the victim that the library was about to close and suggested studying at his apartment. They worked on defendant's Japanese writing skills for about an hour.
After they were finished studying, defendant asked the victim if he could kiss her. The victim said, "No." Defendant pulled the victim from the chair in which she was sitting and carried her into his bedroom with both of his arms around her body. Defendant then sexually assaulted the victim.
During the assault, the victim pounded on the floor with her foot, trying to get the attention of the tenant below. In response, defendant told the victim that if she did not stop making noise, she would not be able to go home. The victim tried to escape several times, but was caught by defendant. After one such attempt, defendant handcuffed the victim. Only after she promised to be quiet did defendant take the handcuffs off.
After the assault, defendant took the victim home. While leaving the apartment, defendant tried to put a paper bag over the victim's head so she would not see his address. 1 When the victim refused to wear the bag, defendant placed a jacket over her head. The drive to the victim's apartment lasted about one hour, even though she lived about thirty minutes away. When the victim told defendant that she wanted to die, defendant refused to take her home until she promised not to harm herself. During this time, defendant asked the victim not to report the incident because he had children.
After defendant left the victim at her apartment, Joowon Kim, the victim's boyfriend, came to see her. Kim noticed that something was bothering the victim and when further pressed, the victim told him that defendant had raped her. Kim was very angry with the victim, reminding her that he had told her not to go out with an American. Kim called Scott Yu, a friend of his, to help the two decide what to do. The police were ultimately called, and the victim was taken to the hospital for a Code R examination.
Defendant was charged with rape, aggravated kidnaping, and forcible sodomy. A trial was held in August 1995 at which the jury found defendant guilty of all three counts. Defendant now appeals several aspects of the trial.
Defendant argues that numerous reversible errors occurred at trial. First, defendant argues that the aggravated kidnaping conviction must merge with the rape and/or forcible sodomy convictions. Second, defendant contends that the trial court erroneously granted the State its sole challenge of one juror for cause and denied one of defendant's, effectively giving the State five peremptory challenges compared to defendant's three. Third, defendant asserts the trial court erred by excluding defendant's expert witness testimony regarding Japanese cultural values. Fourth, defendant argues that there was prosecutorial misconduct during closing argument. Fifth, defendant maintains he received ineffective assistance of counsel. Lastly, defendant argues the verdict should be reversed under the cumulative error doctrine.
Defendant argues that, under these facts, aggravated kidnaping is a lesser included offense of rape and forcible sodomy and, therefore, he cannot be separately convicted and punished for the aggravated kidnaping charge. According to defendant, the detention necessary to support the aggravated kidnaping conviction was inherent in the "host crimes" of rape and/or forcible sodomy and, consequently, the aggravated kidnaping conviction merges into the other two convictions.
Although defendant did not object below, because he is asserting he was illegally sentenced as a result of the lesser included relationship between the convictions, Rule 22(e) of the Utah Rules of Criminal Procedure permits us to "consider the legality of a sentence even if the issue is raised for the first time on appeal." State v. Brooks, 908 P.2d 856, 860 (Utah 1995).
A lesser included offense is statutorily defined in section 76-1-402 of the Utah Code:
(3) A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged....
Utah Code Ann. § 76-1-402(3)(a) (1995). Accordingly, "a defendant may not be convicted of both the offense charged and a lesser included offense." State v. Wood, 868 P.2d 70, 89 (Utah 1993).
Included offenses are defined as those " 'where the two crimes are "such that the greater cannot be committed without necessarily having committed the lesser." ' " State v. Shaffer, 725 P.2d 1301, 1313 (Utah 1986) (citations omitted). If the jury is not required to find any additional elements to convict a defendant of the lesser crime once it has found him guilty of the greater, then the lesser crime is mere surplusage. See State v. Bradley, 752 P.2d 874, 877, 878 (Utah 1985); see also Shaffer, 725 P.2d at 1313 (). The conviction on the lesser crime is disregarded, and the conviction on the greater crime remains unaffected. See Bradley, 752 P.2d at 877; State v. Hill, 674 P.2d 96, 98 (Utah 1983).
Whether a greater-lesser relationship exists between two crimes may be determined by comparing the statutory elements of each crime. See Hill, 674 P.2d at 97. Under certain circumstances, however, a "secondary test" is required:
The secondary test is required by the circumstance that some crimes have multiple variations, so that a greater-lesser relationship exists between some variations of these crimes, but not between others. A theoretical comparison of the statutory elements of two crimes having multiple variations will be insufficient. In order to determine whether a defendant can be convicted and punished for two different crimes committed in connection with a single criminal episode, the court must consider the evidence to determine whether the greater-lesser relationship exists between the specific variations of the crimes actually proved at trial.
Id. (citation omitted). Because aggravated kidnaping has multiple variations, we must undertake this "secondary test" set forth in Hill.
Aggravated kidnaping is committed in numerous ways:
A person commits aggravated kidnaping if the person intentionally or knowingly, without authority of law and against the will of the victim, by any means and in any manner, seizes, confines, detains, or transports the victim with intent:
(a) to hold for ransom or reward, or as a shield or hostage, or to compel a third person to engage in particular conduct or to forbear from engaging in particular conduct; or
(b) to facilitate the commission, attempted commission, or flight after commission or attempted commission of a felony; or
(c) to inflict bodily injury on or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political function; or
(e) to commit a sexual offense as described in Part 4 of this chapter. 2
Utah Code Ann. § 76-5-302(1) (1995). For some reason, the jury here was instructed as to all variations of aggravated kidnaping, even though the evidence at trial supported only a detention with the intent to facilitate the commission of a felony 3 and/or a detention with the intent to commit a sexual offense. Our analysis therefore focuses on subsections (b) and (e) of section 76-5-302(1).
The elements of rape proved at trial were that defendant (1) had sexual intercourse with the victim (2) without her consent. See Utah Code Ann. § 76-5-402(1) (1995). The elements of forcible sodomy proved at trial were that defendant (1) committed sodomy upon the victim (2) without her consent. See id. § 76-5-403(2) (1995). The relevant elements of aggravated...
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