State v. Finlayson

• Decision Date: 28 November 2014
• Docket Number: No. 20110906–CA.,20110906–CA.
• Citation: 362 P.3d 926
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jeffery FINLAYSON, Defendant and Appellant.

362 P.3d 926

STATE of Utah, Plaintiff and Appellee,

v.Jeffery FINLAYSON, Defendant and Appellant.

No. 20110906–CA.

Court of Appeals of Utah.

Nov. 28, 2014.

Herschel Bullen, for Appellant.

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

GREENWOOD, Senior Judge:

¶ 1Jeffery Finlayson appeals from his convictions for aggravated kidnapping, a first degree felony, Utah Code Ann. § 76–5–302(LexisNexis Supp.2013),² and aggravated assault, a third degree felony, id.§ 76–5–103(2012).³We affirm.

BACKGROUND

¶ 2 In early May 2010, Finlayson informed his wife (Wife) of eight months that he wanted a divorce.⁴On 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.

¶ 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."⁵Finlayson 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 to kill you tonight."While still holding her neck, Finlayson dragged Wife to her feet and said, "If you promise not to tell anybody I'll let you go."Finlayson ultimately loosened his grip around Wife's neck enough for Wife to say, "I promise."In response, Finlayson stopped choking Wife.Wife fell to the floor crying.For twenty minutes, Finlayson sat on her and talked about how he would "rather kill [himself] before [going] back to prison."Eventually, Finlayson went back up to the landing, made Wife reiterate her promise not to call the police, and agreed that he would leave the house.About a half hour later, Finlayson exited the house and left his set of house keys with Wife so that he could not reenter.

¶ 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.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.⁶

¶ 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 generallyUtah R. Evid. 404(b)(1), (b)(2)("Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character," but "[t]his evidence may be admissible for another purpose").The State also moved to admit Finlayson's prior conviction for insurance fraud in the event that Finlayson chose to testify at trial.⁷The trial court granted the State's motion to admit the prior bad acts evidence but denied the motion to admit evidence of Finlayson's fraud conviction.Following the court's rulings, defense counsel requested a short recess to confer with Finlayson, explaining, "[T]here might be one other thing we want to address with the Court."When proceedings resumed, defense counsel introduced the subject of Finlayson's desire to waive a jury trial in the following exchange:

[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,⁸the 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...."⁹The State did not object to Finlayson's request for a bench trial.

¶ 9The 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 "a 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"...