State v. Lesky
| Decision Date | 24 June 2021 |
| Docket Number | No. 20160941-CA,20160941-CA |
| Citation | 494 P.3d 382 |
| Court | Utah Court of Appeals |
| Parties | STATE of Utah, Appellee, v. Andrew James LESKY, Appellant. |
Peter A. Daines, Attorney for Appellant
Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Appellee
Opinion
¶1 After a bad break-up, Andrew James Lesky pulled a gun on his former girlfriend (the ex-girlfriend) and her then boyfriend (the boyfriend). Lesky was charged with multiple crimes, including attempted aggravated murder and aggravated kidnapping. During trial, Lesky chose to represent himself with the occasional help of an attorney (standby counsel). On the attempted aggravated murder count, the jury ultimately convicted Lesky of a lesser included offense of aggravated assault, but it convicted him as charged on the aggravated kidnapping count. Lesky now appeals through counsel, arguing that those two convictions should have been merged, that his right to self-representation was violated, and that the district court abused its discretion in excluding evidence. We affirm.
¶2 Lesky and the ex-girlfriend met online and began dating. For years, the two had a volatile relationship during which the ex-girlfriend claimed Lesky threatened and stalked her. The ex-girlfriend ultimately broke up with Lesky and began dating the boyfriend. According to the ex-girlfriend, Lesky then turned his anger on the boyfriend.
¶3 One October evening in 2014, tensions came to a head. The ex-girlfriend and the boyfriend were sitting on the top step of her porch when Lesky walked up the sidewalk, turned toward them, and pulled a gun from his pocket. At that point, according to the ex-girlfriend, "[Lesky] pointed the gun at us and told us to get inside." The boyfriend confirmed,
¶4 Although the ex-girlfriend was "terrified," she got up, and "stood in between" Lesky and the boyfriend, who remained seated behind her. The boyfriend testified, "[Lesky] was aiming at me and [the ex-girlfriend] was directly in between us, so [the gun was] not more than a foot away from her face." According to the ex-girlfriend, Lesky then told her "that if [she] didn't get in the house, he was going to shoot [her]," but she refused, fearing that if she did, Lesky would "kill [her] and nobody would see it."
¶5 The ex-girlfriend testified that when she did not comply, Lesky held the barrel of the gun against the left side of her forehead. She closed her eyes and thought of her children as she "heard a click." The boyfriend also testified that, at some point during the exchange, he
¶6 Fortunately, the firearm did not discharge. Instead, Lesky "hit [the ex-girlfriend] with the butt of the gun on [her] nose," knocking her to the ground. Lesky dropped the gun, and the ex-girlfriend grabbed it. She pointed it at Lesky and threatened to shoot him unless he left.
¶7 At that point, the ex-girlfriend saw her neighbor come around the corner. The ex-girlfriend lived on the main floor of a house, while the neighbor and his wife lived in the basement apartment of the same house. The neighbor testified that, from inside the apartment he had heard Lesky tell the ex-girlfriend to "get into the house, in a very angry tone," and he decided to come outside when he heard a "general feeling of terror" in the ex-girlfriend's voice. As the neighbor "rounded the corner, [he] saw [the ex-girlfriend] sitting on the steps of the front porch, and ... Lesky standing a short distance away facing her." The neighbor yelled at Lesky, who turned and made some sort of verbal threat in response. The neighbor testified that Lesky turned back to the ex-girlfriend and reached toward her, saying, "[G]ive me the gun." The neighbor then noticed the gun in the ex-girlfriend's hand and saw Lesky grab her in a bear hug as they struggled over the gun. The neighbor, fearing for his life, retreated to the basement apartment, locked his door, and told his wife to call the police.
¶8 During the continued struggle over the gun, Lesky picked up the ex-girlfriend under her arms and threw her toward a tree. The ex-girlfriend tossed the gun toward the boyfriend but she did not see where it landed. The neighbor testified that after he went back inside he stood by a window, listened, and heard a "click, click." He speculated that the sound was one of three things: "a round being racked into the chamber," the gun being "dropped on the cement," or "a misfire."
¶9 Once she managed to regain her feet, the ex-girlfriend saw that Lesky and the boyfriend were fighting in the street. The ex-girlfriend saw "a shimmer of a blade" and told the boyfriend, "[H]e's got a knife." She heard Lesky say, "[D]on't make me stab you," and she Later, the boyfriend discovered that the knife appeared to have cut through the sweatshirt he was wearing, but it did not break the skin. The boyfriend let Lesky go, and Lesky ran away down the street. The boyfriend retrieved the gun, and the ex-girlfriend called the police.
¶10 Lesky was arrested and charged in a six-count information. Count 1 charged Lesky with attempted aggravated murder, arising from the allegation that Lesky had put the gun to the ex-girlfriend's head and pulled the trigger. Counts 2 and 3 charged Lesky with aggravated kidnapping for holding the boyfriend and the ex-girlfriend, respectively, at gunpoint. Count 4 charged Lesky with aggravated assault for allegedly slashing at the boyfriend with a knife.1 Counts 5 and 6 charged Lesky with unlawful possession of the firearm and the knife, respectively.
¶11 Several days into trial, Lesky filed a motion seeking to represent himself. After a lengthy colloquy about the risks of self-representation and the role of standby counsel, the court found that Lesky knowingly waived his right to counsel and allowed him to represent himself with the assistance of standby counsel.2 For security reasons, the court suggested Lesky remain at counsel table during trial, but Lesky objected, indicating that he "would like to be allowed to be at the podium" where he could turn and address the jury. The court granted the request on the condition that approaching a witness with exhibits would be done by standby counsel; Lesky indicated that was agreeable. Lesky also asked how to make a record of any concerns that arose during trial. The court advised him, "You can call for a break outside the purview of the jury and we can make a record of those concerns ... without the jury present."
¶12 At the end of trial, the jury was instructed on the elements of each charged offense as well as various lesser included offenses. Relevant to this appeal, on count 1, the jury was instructed on the charged offense of attempted aggravated murder as well as the lesser included offenses of attempted murder and aggravated assault. The jury acquitted Lesky of attempted aggravated murder and attempted murder, but it convicted him of aggravated assault. On counts 2 and 3, the jury was instructed on the charged offense of aggravated kidnapping and the lesser included offense of aggravated assault. The jury convicted Lesky of aggravated kidnapping on both counts, as charged. The jury acquitted Lesky of counts 4 and 6, both of which related to the knife, and convicted him of unlawful possession of a firearm on count 5. Lesky appeals.
¶13 On appeal, Lesky first argues that the district court should have merged his aggravated assault conviction on count 1 with his aggravated kidnapping conviction on count 3. Lesky did not preserve this issue below, but contends that the district court plainly erred in not sua sponte merging the convictions. Plain error is an exception to the standard appellate preservation requirement. State v. Johnson , 2017 UT 76, ¶ 19, 416 P.3d 443. A district court "plainly errs when it commits obvious, prejudicial error." State v. Roberts , 2019 UT App 9, ¶ 10, 438 P.3d 885.
¶14 Lesky next contends that the district court violated his constitutional right to self-representation when it conducted sidebar and in-chambers conferences outside his presence. We do not reach the merits of this claim because it is unpreserved, and Lesky has not argued any exception to the preservation requirement. See State v. Reid , 2018 UT App 146, ¶ 40, 427 P.3d 1261 () (cleaned up).
¶15 Lesky's final contention is that the district court improperly excluded evidence that he claims was admissible under rule 608 of the Utah Rules of Evidence. A district court has "broad discretion to admit or exclude evidence, and we will disturb an evidentiary ruling only for an abuse of discretion." State v. Samora , 2021 UT App 29, ¶ 18, 484 P.3d 1206 (cleaned up), petition for cert. filed , May 19, 2021 (No. 20210347).
¶16 Lesky argues that the district court plainly erred by not merging his convictions on count 1 (aggravated assault) and count 3 (aggravated kidnapping of the ex-girlfriend). "To prevail on a claim of plain error," a defendant must show that "(i) an error exists; (ii) the error should have been obvious to the [district] court; and (iii) the error is harmful." State v. Bedell , 2014 UT 1, ¶ 20, 322 P.3d 697 (cleaned up).
¶17 The merger doctrine, as codified in...
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State v. D.A.M.G. (State ex rel. D.A.M.G.)
...predominantly lesser-included offenses, and is known as the lesser included offense provision." State v. Lesky, 2021 UT App 67, ¶ 17, 494 P.3d 382 (cleaned up), denied, 497 P.3d 830 (Utah 2021); see also Corona, 2018 UT App 154, ¶ 44; Utah Code § 76-1-402. Only the first test is at issue he......
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