State v. Walker

• Decision Date: 06 January 2017
• Docket Number: No. 20150317-CA,20150317-CA
• Citation: 391 P.3d 380
• Parties: STATE of Utah, Appellee, v. Timothy Noble WALKER, Appellant.
• Court: Utah Court of Appeals

391 P.3d 380

STATE of Utah, Appellee,

v.Timothy Noble WALKER, Appellant.

No. 20150317-CA

Court of Appeals of Utah.

Filed January 6, 2017

Lori J. Seppi and Michael R. Sikora, Attorneys for Appellant.

Sean D. Reyes and Marian Decker, Salt Lake City, Attorneys for Appellee.

Judge Jill M. Pohlman authored this Opinion, in which Judges J. Frederic Voros Jr. and Kate A. Toomey concurred.

Opinion

POHLMAN, Judge:

¶1 Timothy Noble Walker asserts that he was denied his federal constitutional right to a jury trial with respect to a key element of the State's case. We agree and therefore vacate his conviction and remand for a new trial.

BACKGROUND¹

¶2 Walker and his wife (Wife) had been married less than a month when Wife's employer transferred her job from South Carolina to Utah. The couple then moved to Utah, bringing Wife's teenage son (Son) with them. They stayed in hotels for a few days while Wife began work at her new location.

¶3 One evening the three were together in their hotel room. Walker and Wife had been drinking and, sometime during the evening, Wife picked up Walker's glass and poured his drink down the sink. Upset, Walker struck Wife in the face. She fell against the refrigerator, then stood up and walked around the hotel room, searching for something. She found the keys to the couple's van in Walker's clothing, and she put them in her pocket.

¶4 Walker approached Wife from behind and put his right wrist against her neck. He lifted her up with his right hand while reaching into her pocket with his left hand, attempting to get the keys. During the struggle that followed, Wife kicked at Walker and pulled at his arm, trying to loosen his hold on her neck. But Walker used his left hand to reinforce his grip, and he lifted Wife completely off the floor. Wife was unable to wrench free.

¶5 Son was sitting on a bed a few feet away. He saw Wife struggling to free herself and heard her making "choking sounds." He told Walker to stop, but Walker persisted. Walker kept his wrist pressed against Wife's neck until she suddenly exhaled. Her eyes rolled back in her head, her arms fell to her sides, and her body went limp. She had been subject to Walker's grip for approximately ten to fifteen seconds.

¶6 Walker abruptly let go and pushed Wife away. She fell face-first against the wall and did not move. Walker began gathering his things. When Son asked him what he had done, Walker replied that he "didn't do anything" and that Wife was "faking it" because she was a "drama queen." Walker then walked out of the room. He drove away, ultimately returning to South Carolina.

¶7 Son attempted to waken Wife and shift her into a sitting position. He also called the police. After about a minute, Wife began to regain her faculties. She heard Son crying and calling her name. Not long afterward, she heard a knock on the door when a police officer arrived.

¶8 The officer found Son and Wife in the hotel room. Wife was conscious but "didn't appear *to be+ in the right state of mind," and the officer "couldn't understand what she was saying at first." After listening to Son's description of the evening's events, the officer called for medical assistance to evaluate Wife. He also photographed Wife's injuries, which consisted of "visible injury" to her right eye and "red marks around her neck," which "appeared to be swollen." The officer also called Walker. After the officer identified himself, Walker said, "I'm driving out of the state, don't worry about me," and hung up.

¶9 A paramedic evaluated Wife and asked if she wanted to go to the hospital, but Wife declined. However, Wife saw a doctor several days later and told him that she felt soreness and tenderness about her head, face, and neck. She underwent testing and was told to "take it easy" and allow her body time to heal, but she was not prescribed any particular medical treatment.

¶10 Walker was charged with aggravated assault, a second degree felony. See Utah Code Ann. § 76–5–103(2)(b) (LexisNexis 2012).² He elected to have the charge tried by a jury. Wife, Son, and the officer each testified for the State regarding the evening's events. During cross-examination, Wife was asked about the medical documentation of her injuries. She testified that she had suffered a concussion and headaches, but she could not identify any reference to those injuries in the records from her doctor visit. Wife also testified that she was unaware of any long-term physical or medical complications resulting from the incident.

¶11 In defense, Walker elicited brief testimony from the paramedic, who stated that he had not characterized Wife's injuries as threatening life or limb. Walker also called Robert Rothfeder as an expert witness on the subject of strangulation injuries. Rothfeder's testimony distinguished structural injuries to the neck from suffocation injuries to the brain

. According to Rothfeder, causing structural damage to a person's trachea requires "a significant amount of force" and would result in a "serious situation" from which the body would not "automatically rebound." Regarding suffocation, Rothfeder testified that lack of oxygen could cause brain injury or death after a "number of minutes. Most people would say two to three minutes in an otherwise reasonably healthy person.... [But] [t]he brain can survive those kinds of insults for a period, for that period of time."

¶12 Rothfeder also testified that putting pressure on a certain place on either side of the neck—on the carotid sinus—would lead to a drop in blood pressure that could result in a person fainting. Rothfeder explained that medical professionals may massage the carotid sinus for therapeutic purposes—for example, to treat a person experiencing a rapid heart rate. But a "complication of doing that" is a person may "faint or pass out ... if [his or her] blood pressure drops too quickly." According to Rothfeder, pressure on the carotid sinus for as little as ten to fifteen seconds could cause a person to lose consciousness. But if the pressure were removed, the person's pulse would increase and he or she would quickly regain consciousness.

¶13 Following Rothfeder's testimony, the court instructed the jury, giving it four options. The jury could find Walker not guilty or find him guilty of one of the following offenses: aggravated assault, a second degree felony; aggravated assault, a third degree felony; or assault, a class B misdemeanor. If Walker had committed more than one offense, the jury was instructed to find him guilty of the most serious crime.

¶14 The instructions for the offenses largely tracked the relevant statutory language. For the most serious charge—aggravated assault, a second degree felony—the jury was required to find that Walker had intentionally, knowingly, or recklessly committed assault; used means or force likely to produce death or serious bodily injury; and caused serious bodily injury. See Utah Code Ann. §§ 76–2–102, 76–5–103(1), (2)(b) (LexisNexis 2012). The instructions for aggravated assault, a third degree felony, imposed the same requirements except that Walker need not have caused serious bodily injury. See id. § 76–5–103(1), (2)(a). The requirements for the misdemeanor assault charge, per the applicable statutory language, dropped any reference to "serious bodily injury." See id. § 76-5-102. The jury was instructed that Walker was guilty of misdemeanor assault if he had intentionally, knowingly, or recklessly committed an act with unlawful force or violence and caused bodily injury or created a substantial risk of bodily injury. See id. §§ 76–2–102, 76–5–102.

¶15 "Serious bodily injury" was defined in accordance with its statutory meaning as "bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death." See id. § 76-1-601(11). "Bodily injury" was also defined according to the relevant statutory language as "physical pain, illness[,] or an impairment of physical condition." See id. § 76-1-601(3).

¶16 Over Walker's objection, the jury received an additional instruction (Instruction 18) that did not mirror any statutory language but was based on two Utah Supreme Court cases that addressed whether strangulation or attempted strangulation constituted serious bodily injury or force sufficient to cause such injury. See State v. Speer , 750 P.2d 186, 191 & n.4 (Utah 1988) ; State v. Fisher , 680 P.2d 35, 37 (Utah 1984). Instruction 18 stated, "You are instructed that strangulation to the point of unconsciousness constitutes serious bodily injury." Walker objected that this instruction violated his right to have the jury "make [a] determination of proof beyond a reasonable doubt on each and every element of the offense." His objection was overruled.

¶17 In closing argument, the prosecutor asserted that the "paramount issue" was whether Wife "suffer[ed] serious bodily injury." Commenting that "this is the part where I'm going to ask you to follow the law," the prosecutor walked the jury through the statutory definitions of bodily injury and serious bodily injury and then turned to Instruction 18, stating: "[T]he next instruction gives you a further definition of what the law recognizes as serious bodily injury. It says, you are instructed that strangulation to the point of unconsciousness constitutes serious bodily injury." The prosecutor then asked, "Do you see what I mean when I said this just comes down to your ability to follow the law?"

¶18 The case was submitted to the jury and, after deliberating for more than an hour, the jury sent the court a note asking, "What is the definition of ‘constitutes'? As in [Instruction] 18." The court responded, "Use the common and ordinary meaning of the word. A dictionary definition is to ‘amount to’ or ‘add up to.’ " The jury continued deliberating for about another hour and a half before reaching its verdict. The jury acquitted Walker of the most serious offense...