State v. Finlayson

• Decision Date: 14 January 2000
• Docket Number: No. 980279.,980279.
• Citation: 994 P.2d 1243,2000 UT 10
• Parties: STATE of Utah, Plaintiff and Petitioner, v. Jeffrey Russell FINLAYSON, Defendant and Respondent.
• Court: Utah Supreme Court

994 P.2d 1243

2000 UT 10

STATE of Utah, Plaintiff and Petitioner, v. Jeffrey Russell FINLAYSON, Defendant and Respondent.

No. 980279.

Supreme Court of Utah.

January 14, 2000.

Jan Graham, Atty Gen., Thomas Brunker, Catherine M. Johnson, Asst. Atty's Gen., James M. Cope, Salt Lake City, for plaintiff.

Robert K. Heineman, Salt Lake City, for defendant.

STEWART, Justice:

¶ 1 Jeffrey Russell Finlayson was convicted of forcible sodomy, a first degree felony, in violation of Utah Code Ann. § 76-5-403(2) (1995); rape, a first degree felony, in violation of Utah Code Ann. § 76-5-402 (1995); and aggravated kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1995). Defendant appealed all three convictions, and we transferred this case to the Utah Court of Appeals. The Court of Appeals affirmed the convictions for forcible sodomy and rape, and reversed the conviction for aggravated kidnaping. State v. Finlayson, 956 P.2d 283 (Utah Ct.App.1998). We then granted the State's petition for a writ of certiorari to review the Court of Appeals' reversal of the kidnaping charge. We affirm, but on a different ground than the one relied on by the Court of Appeals.

I. FACTS

¶ 2 Defendant met the victim, a Japanese exchange student who spoke little English, on the campus of the Salt Lake Community College, where they both attended classes. Defendant, who is fluent in Japanese, asked the victim if she would help him with his Japanese studies. She agreed, and the two made plans to go to the library together on October 5, 1994.

¶ 3 On that date, defendant picked the victim up at her apartment, and they went to dinner. After dinner, defendant claimed he forgot to bring a book from his apartment, and they drove there to pick it up. When they arrived, defendant asked the victim to come inside to see his Japanese souvenirs, which he acquired while in Japan. Once inside, defendant told the victim that the library was about to close and suggested they study at his apartment. She agreed, and they worked on defendant's Japanese writing skills for approximately one hour.

¶ 4 After they finished studying, defendant asked her if he could kiss her. She said "No," and defendant then pulled her from the chair in which she was sitting, carried her into his bedroom with his arms wrapped around her body, and sexually assaulted her. During the assault, the victim pounded on the floor with one foot in an unsuccessful attempt to attract a neighbor's attention. Defendant told the victim that if she did not stop, she would not be able to go home. She also made several unsuccessful attempts to escape; after one such attempt, defendant handcuffed her. He removed the handcuffs after she promised to be quiet.

¶ 5 After the assault, the victim tried to leave defendant's apartment, but was made to wait ten minutes while defendant dressed. While leaving the apartment, defendant tried to put a paper bag over the victim's head so she would not see his address. When she refused to wear the bag, defendant placed a jacket over her head. The drive to the victim's apartment lasted one hour, despite the fact that she lived less than thirty minutes away. When the victim stated that she wanted to die, defendant refused to take her home until she promised not to harm herself. Despite defendant's efforts, the victim obtained his address through a letter taken secretly from his apartment.

¶ 6 On certiorari, we review a decision of the Court of Appeals for correctness. See State v. Hodson, 907 P.2d 1155, 1157 (Utah 1995)

. "In doing so, this Court adopts the same standard of review used by the court of appeals: questions of law are reviewed for correctness, and the trial court's factual findings are reversed only if clearly erroneous." State v. Harmon, 910 P.2d 1196, 1199 (Utah 1996) (citations omitted).

II. APPEALABILITY

¶ 7 Defendant argued for the first time in the Court of Appeals that the crime of aggravated kidnaping, on the facts of this case, is a lesser included offense of the crimes of rape and forcible sodomy and, therefore, the conviction for aggravated kidnaping merged into the other convictions. That point was not raised in the trial court, but the Court of Appeals addressed the issue, relying on State v. Brooks, 908 P.2d 856 (Utah 1995), and Rule 22(e) of the Utah Rules of Criminal Procedure, for the proposition that an appellate court may consider the legality of a sentence on appeal even though the issue was not raised in the trial court.

¶ 8 As the State correctly argues, the Court of Appeals' decision to review the merger claim under Rule 22(e) was in error. The issue in the present case is the legality of defendant's conviction, not his sentence. As Brooks states, an appellate court may not "review the legality of a sentence [under rule 22(e)] when the substance of the appeal is, as it is here, a challenge, not to the sentence itself, but to the underlying conviction." Id. at 860; see also State v. Babbel, 813 P.2d 86 (Utah 1991)

("Babbel II").

¶ 9 Defendant concedes that the Court of Appeals' reliance on Rule 22(e) was in error, but argues that we should affirm the reversal of the aggravated kidnaping conviction on the ground of ineffective assistance of counsel.¹

¶ 10 The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to defendants in all criminal prosecutions. This right has been interpreted as "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The test for determining when a defendant has been denied this right is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland establishes a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. The application of this test to the instant case is discussed below.

III. AGGRAVATED KIDNAPING

¶ 11 The Court of Appeals ruled that aggravated kidnaping was a lesser included offense of rape and forcible sodomy. We disagree. The law barring convictions for both an offense and a lesser included offense was explored in State v. Baker, 671 P.2d 152 (Utah 1983), and numerous subsequent opinions of this Court and is stated in Utah Code Ann. § 76-1-402.

¶ 12 Aggravated kidnaping may be committed in a variety of 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) (emphasis added).

¶ 13 The jury was instructed on all variations of aggravated kidnaping. The only argument asserted by the prosecutor at trial in support of the aggravated kidnaping charge was defendant's handcuffing of the victim. The Court of Appeals held that handcuffing the victim was insufficient to support the aggravated kidnaping conviction because that evidence was inseparable from and integral to the evidence which established the elements of the forcible sex crimes. ¶ 14 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 kidnaping proved at trial were that defendant (1) intentionally (2) detained the victim (3) with the intent (4) to facilitate the commission of the rape and forcible sodomy and that he committed forcible rape and sodomy. See id. § 76-5-302(1) (1995). The Court of Appeals ruled that the detention of the victim was a necessary aspect of the sex crimes and had no independent legal significance apart from those crimes. The court therefore reversed the conviction as a lesser included offense under Utah Code Ann. § 76-1-402 (1995).

¶ 15 The doctrine of lesser included offense, under section 76-1-402, has a superficial applicability to the facts of this case, but as we held in State v. Couch, 635 P.2d 89, 92 (Utah 1981), it does not govern here. Section 76-1-402 precludes convictions on both an offense charged and a lesser included offense. Under this section, an offense is an included offense when "[i]t 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) (emphasis added). As discussed above, rape and forcible sodomy do not require proof of detention, although detention is inherently an aspect of both crimes. See id. § 76-5-402(1) (rape); id. § 76-5-403(2) (forcible sodomy).

¶ 16 The Court of Appeals recognized that detention is an inherent aspect of both crimes, but nonetheless...