State v. Wilder

387 P.3d 512

2016 UT App 210

State of Utah, Appellee,

v.Percy L. Wilder, Appellant.

No. 20140416–CA

Court of Appeals of Utah.

Filed October 20, 2016

Samuel P. Newton, Attorney for Appellant.

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee.

Judge Gregory K. Orme authored this Opinion, in which Judge Stephen L. Roth and Senior Judge Russell W. Bench concurred.¹

Opinion

ORME, Judge:

¶1 Defendant Percy L. Wilder appeals his convictions for aggravated kidnapping and aggravated sexual assault, both first degree felonies. Defendant challenges the sufficiency of the evidence supporting his aggravated kidnapping conviction and alleges that he received ineffective assistance of counsel when his trial counsel failed to argue that the aggravated kidnapping charge merged with the aggravated sexual assault charge. He also claims that the trial court erred when it denied his request for a post-trial evidentiary hearing to question an allegedly biased juror. We affirm.

BACKGROUND²

¶2 Defendant and the victim separately attended a party at the home of a mutual acquaintance. Around 1:30 a.m., Defendant asked the victim if she would go outside to talk to him. She told him no—multiple times. But eventually the victim went out to her car to get her cellphone, and Defendant followed her. Once outside, Defendant continued to ask the victim to talk, but she declined, saying she was cold and needed to get back to the party. Nonetheless, Defendant opened the driver-side door of his car and asked the victim to sit down. Hoping he would leave her alone if she spoke with him, the victim sat down on the edge of the driver-side seat. Defendant then asked her to move over, and when she did not, he sat down anyway. So she moved into the passenger seat, opened the passenger-side door, and hung one foot out the door.

¶3 While the victim's leg was still outside the car, Defendant started the car and began driving. Fearful that she would be run over if she tried to escape, the victim remained in the car and closed the door. She did, however, ask Defendant to stop. Defendant told the victim that he was going to give a friend a ride, but he did not pick up a friend. Instead—of all things—he began repeatedly asking her for oral sex, a request that she steadfastly refused.

¶4 At around 2:00 a.m., after having driven a short distance, Defendant parked in the back of an apartment complex parking lot. There were no other people in the lot. Defendant then demanded that the victim undress and give him oral sex. Defendant became enraged when the victim refused, and he threatened to "cut [her]" if she got out of the car. Defendant next tried to put his hand up the victim's shirt, but the victim pushed him away. He reacted by reaching across her and biting her right breast through her clothing.

¶5 To enhance her mobility, the victim removed her high-heeled shoes. Defendant interpreted this, however, as her beginning to undress, and he ordered her to proceed. When she did not, he threatened to "gut [her] from head to toe" if she did not immediately undress. Instead, the victim opened the car door and jumped out. Defendant grabbed the back of her pants, but she broke free of his grasp. The victim testified at trial that she had been in Defendant's parked car for approximately ten minutes.

¶6 Free of Defendant, the victim ran into the apartment complex, where she pounded on doors and screamed for help. Defendant ran after her, and when he reached her, he grabbed her by the hair and began dragging her back toward his car. According to the victim's estimate, he did this for about ten seconds, and they traveled only about two steps. The victim then was able to lock her legs and brace herself between the hallway walls. In response, Defendant punched her in the face and then released her. Defendant fled, and the victim sought help. Residents heard the victim and came to her aid, and she called 911 and reported the incident. Following his apprehension, the State charged Defendant with one count each of aggravated kidnapping and aggravated sexual assault. Following a jury trial, Defendant was convicted of both charges.

¶7 Sometime after trial but before sentencing, Defendant's daughter remembered that one of the jurors (Juror) had attended junior high school with her brothers, Defendant's sons. Both Defendant and the State interviewed Juror. Defendant moved the trial court to arrest the verdict, asserting that Juror knew Defendant's children and was biased against him.³ In this motion, Defendant also alleged that Juror remained in the courtroom for improper reasons after the jury had been dismissed. The State countered that Juror remained in the courtroom only to ask about his payment for jury service.

¶8 The State subsequently submitted its taped interview with Juror as evidence that he was not biased. In the interview, Juror admitted to the State's investigator that he briefly attended Defendant's sons' junior high school and that he knew one of the sons in junior high, but Juror also said he had not remembered the connection until after trial because he attended multiple junior highs. He also claimed that he did not know Defendant's daughter and that he was unaware of any aspect of Defendant's circumstances prior to trial.

¶9 Although Defendant's counsel had interviewed Juror, Defendant proffered no evidence showing that Juror's account, as submitted by the State, was false or demonstrating Juror's bias. Instead, Defendant insisted that Juror had in fact attended school with Defendant's sons for three years, claiming that Juror appeared in the school's yearbook each of those years.⁴ But Defendant never presented the yearbooks as evidence. The court decided that it would watch the State's interview video and make its decision. After a period of more than three months, during which time the court held four hearings, the court denied Defendant's request for an evidentiary hearing, concluding that there was insufficient information to warrant further inquiry.

¶10 After denying Defendant's motion for a new trial, the court sentenced Defendant to two sentences of fifteen years to life in prison, to be served concurrently with one another but consecutively to a sentence Defendant was already serving on an unrelated conviction. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Defendant raises three issues on appeal. First, he asserts that the trial court abused its discretion when it denied his request for an evidentiary hearing in which Juror could be called to testify. We review the trial court's denial of an evidentiary hearing, and, therefore, of the motion for new trial, for an abuse of discretion. See State v. Loose , 2000 UT 11, ¶ 16, 994 P.2d 1237. "[L]egal determinations made by the trial court as a basis for its denial of a new trial motion are reviewed for correctness." Id. ¶ 8.

¶12 Second, Defendant argues that there was insufficient evidence to convict him of aggravated kidnapping. "In reviewing sufficiency of the evidence claims, we reverse a jury verdict only when the evidence ‘is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt.’ ... We examine the evidence in a light most favorable to the verdict." State v. Boss , 2005 UT App 520, ¶ 9, 127 P.3d 1236 (quoting State v. Mead , 2001 UT 58, ¶ 65, 27 P.3d 1115 ). And if each element of the crime is supported by at least some evidence, or reasonable inferences drawn from the evidence, we inquire no further. Mead , 2001 UT 58, ¶ 67, 27 P.3d 1115.

¶13 Third, Defendant contends that his trial counsel was ineffective for failing to argue that the aggravated kidnapping charge merged with the aggravated sexual assault charge. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162. A defendant who claims ineffective assistance of counsel must show "that counsel's performance was deficient" and prejudicial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

ANALYSIS

I. The Trial Court Did Not Abuse Its Discretion by Denying Defendant's Motion for New Trial.

¶14 Defendant first argues that the trial court should have granted him an evidentiary hearing to question Juror, who attended junior high with both of Defendant's sons but did not disclose that information during voir dire.⁵ Defendant argues that he was entitled to a trial by an impartial jury and that because Juror could have been challenged for cause during voir dire, the court or counsel should have more fully investigated Juror's familiarity with Defendant. He asserts that, because his motion for a new trial alleged juror misconduct, the motion should have triggered such an investigation, including "full questioning by both parties" in an evidentiary hearing.

¶15 A motion for a new trial must "be accompanied by affidavits or evidence of the essential facts in support of the motion." Utah R. Crim. P. 24(b). And a defendant seeking a new trial because of alleged juror bias has the burden to prove actual, not suppositional, bias. Turner v. University of Utah Hosps. & Clinics , 2013 UT 52, ¶ 29, 310 P.3d 1212 (requiring the party alleging juror bias "to demonstrate that ... [the] juror was, in fact, biased"). Assuming the defendant presents some evidence, the trial court may choose to hold an evidentiary hearing before ruling on the motion for new trial. See State v. Stidham , 2014 UT App 32, ¶ 27, 320 P.3d 696. But where a defendant fails to provide an affidavit or other evidence, the trial court has nothing to evaluate in an evidentiary hearing.⁶ Thus, the issue here is whether Defendant presented sufficient evidence in his motion for new trial to suggest that Juror was actually biased so as to necessitate an evidentiary hearing. And assuming Defendant did not establish the need for an evidentiary hearing, the next question is whether a new trial...