State v. Garrido

2013 UT App 245
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
GUSTAVO DEMETRIO GARRIDO,
Defendant and Appellant.

Opinion
No. 20100789‐CA
Filed October 10, 2013

Third District, Salt Lake Department
The Honorable Randall N. Skanchy
No. 101902111

Ronald Fujino, Attorney for Appellant
John E. Swallow and John J. Nielsen, Attorneys for
Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES CAROLYN B. MCHUGH and J. FREDERIC VOROS JR.
concurred.

ORME, Judge:

¶1 Defendant Gustavo Demetrio Garrido appeals from
convictions for one count of assault, a third degree felony, see Utah
Code Ann. § 76‐5‐102 (LexisNexis 2012); five counts of domestic
violence in the presence of a child (three third degree felonies and
two class B misdemeanors), see id. § 76‐5‐109.1(2), (3); one count of
aggravated burglary, a first degree felony, see id. § 76‐6‐203; one
count of aggravated kidnapping, a first degree felony, see id.
§ 76‐5‐302; one count of aggravated assault, a third degree felony,
see id. § 76‐5‐103 (2008);1 and one count of violating a protective

1. Because changes have been made to the aggravated assault
statute since the crimes were committed, we cite to the version in
(continued...)
 State v. Garrido

order, a class A misdemeanor, see id. § 76‐5‐108 (2012).2 Defendant
argues that (1) this court improperly remanded his case back to the
trial court to supplement the record, (2) the trial court erred in
determining that a witness was unavailable and subsequently
violated his Sixth Amendment rights by permitting preliminary
testimony to be admitted, (3) the trial court admitted irrelevant and
prejudicial hearsay statements, (4) the trial court failed to
adequately inquire into Defendant’s request for new counsel, and
(5) the trial court improperly instructed the jury by failing to merge
some of the offenses. We affirm.

BACKGROUND3

¶2 During a separation from his on‐again‐off‐again girlfriend
(Girlfriend), Defendant dated the primary victim (Victim) in this
case. By December 2009, Victim was several months pregnant with
Defendant’s child, but Defendant had left Victim and moved back
in with Girlfriend. Victim and Defendant remained in contact as
Victim’s due date approached. Shortly after Christmas, Defendant
went to Victim’s house, where she was home with her two
children, and asked her for a key to her house. She refused, and
Defendant “started punching her in the ribs and in the back of the
head,”“over and over again.” Defendant told Victim to “stay put”
or else he would “fuck the house up.” Victim called the police once

1. (...continued)
effect at the time of the commission of the crimes. No changes have
been made to the other relevant statutes, so we otherwise cite the
current version of the Utah Code as a convenience to the reader.

2. The first degree felonies vested the Utah Supreme Court with
initial jurisdiction over this appeal. See Utah Code Ann. § 78A‐3‐
102(3)(i) (LexisNexis 2012). The Supreme Court transferred the case
to this court. See id. § 78A‐3‐102(4).

3. We outline the facts in the light most favorable to the jury’s
verdict. See State v. Kohl, 2000 UT 35, ¶ 2 n.1, 999 P.2d 7.

20100789‐CA 2 2013 UT App 245
 State v. Garrido

Defendant left, but he could not be located. Victim suffered a head
injury and bruises on her ribs and back.

¶3 About a week later, Defendant returned to Victim’s house
late at night. Using a key he took without permission during the
previous incident, he entered the house and demanded to see
Victim’s phone, accusing her of having someone else staying in her
home. When she refused to turn over her phone, he threatened to
kill her and grabbed a knife from the kitchen. Holding the knife to
her throat, he again threatened to kill her. Defendant “grabbed her
by the hair[,] threw her to the ground,” and “began to jump up and
down on her face,” hitting her repeatedly and continuing to
threaten her with the knife. Defendant also punctured the back of
her hand with the knife. After he finished beating her, Defendant
stayed the night, refusing to let Victim out of his sight and telling
her that he would kill her if she tried to leave. Victim’s two
children were in the home during the incident, as was another
child. Early the next morning, Victim was able to flee to her
neighbor’s house, and the police were called. Defendant, however,
fled before they arrived. The police officers found Victim with
scrapes on her forehead, shoe marks on her face, a puncture wound
on her hand, and bruises on her arm. Defendant was eventually
located and charged with multiple offenses, and a preliminary
hearing was scheduled in due course.

¶4 A protective order was entered against Defendant in favor
of Victim. Despite this order, and shortly before the first scheduled
preliminary hearing, Defendant called Victim from jail and told her
that the case against him would be dismissed if no one showed up
to testify against him. Victim failed to appear both at that
scheduled hearing and the next one. She contacted the prosecutor
by phone, insisting that she just wanted the charges to “go away”
and stating, “I’m not going to testify if you can’t guarantee that you
won’t put [Defendant] away for life. I don’t want to be looking over
my shoulder for the rest of my life.” The prosecutor used a
speakerphone, and the conversation was overheard by a paralegal.

¶5 The third time the preliminary hearing was scheduled,
Victim finally appeared. She testified that she did not remember

20100789‐CA 3 2013 UT App 245
 State v. Garrido

many of the events that were the source of Defendant’s charges,
and the details she did remember often contradicted statements she
had made to police. Defendant’s counsel was given the opportunity
to cross‐examine Victim but elected not to do so.

¶6 Victim had been extremely uncooperative and had
attempted to avoid service multiple times. Once the case moved to
trial, the trial court granted the State’s request to admit Victim’s
preliminary hearing testimony at trial should she fail to appear, as
had been her frequent practice. The trial court agreed that under
those circumstances it would also admit the paralegal’s testimony
regarding Victim’s statements to the prosecutor. As expected,
Victim was not present at trial when called to testify, and the trial
court found that she was unavailable. However, just as her
testimony from the preliminary hearing was about to be read aloud
by a stand‐in, Victim appeared in the back of the courtroom,
shouted that she refused to testify, and fled from the courtroom.
The stand‐in then read Victim’s preliminary hearing testimony.

¶7 Defendant was convicted by the jury and sentenced by the
trial court.4 This appeal followed, in the course of which we
remanded for supplementation of the record.

ISSUES AND STANDARDS OF REVIEW

¶8 Defendant first argues that we improperly remanded this
case for supplementation of the record under rule 11 of the Utah

4. Defendant was sentenced to prison for one term of zero to five
years for assault, two terms of 365 days for the misdemeanor
domestic violence in the presence of a child convictions, three
terms of zero to five years for the felony domestic violence in the
presence of a child convictions, one term of fifteen years to life for
aggravated kidnapping, one term of zero to five years for
aggravated burglary, one term of zero to five years for aggravated
assault, and one term of 365 days for violation of a protective order.
The trial court directed that the sentences run concurrently.

20100789‐CA 4 2013 UT App 245
 State v. Garrido

Rules of Appellate Procedure. A decision to remand for
supplementation of the record is a matter entrusted to our sound
discretion. See, e.g., Stone Flood & Fire Restoration, Inc. v. Safeco Ins.
Co. of Am., 2011 UT 83, ¶ 22 n.5, 268 P.3d 170; Pratt v. Nelson, 2005
UT App 541, ¶ 5 n.2, 127 P.3d 1256.

¶9 Second, Defendant argues that Victim’s preliminary hearing
testimony was improperly admitted at trial. Defendant alleges that
the trial court did not make adequate findings to support a
determination that Victim was unavailable. “‘The failure to enter
adequate findings of fact on material issues may be reversible
error.’” Keene v. Bonser, 2005 UT App 37, ¶ 5, 107 P.3d 693
(alteration omitted) (quoting Reid v. Mutual of Omaha Ins. Co., 776
P.2d 896, 899 (Utah 1989)). “Failure of the trial court to make
findings on all material issues is reversible error unless the facts in
the record are clear, uncontroverted, and capable of supporting
only a finding in favor of the judgment.” Stonehocker v. Stonehocker,
2008 UT App 11, ¶ 16, 176 P.3d 476 (citation and internal quotation
marks omitted). Defendant also argues that the admission of
Victim’s preliminary hearing testimony violated his Sixth
Amendment right to confrontation. Whether a defendant’s
confrontation rights have been violated is a question of law,
reviewed for correctness. State v. Poole, 2010 UT 25, ¶ 8, 232 P.3d
519. Defendant also contends that his trial counsel was ineffective
for failing to cross‐examine Victim at the preliminary hearing.
Ineffective assistance of counsel claims that are raised for the first
time on appeal present questions of law, reviewed for correctness.
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

¶10 Third, Defendant argues that the trial court improperly
admitted Victim’s hearsay statements through a paralegal who
worked in the prosecutor’s office. “When reviewing rulings on
hearsay, we review ‘[l]egal questions regarding admissibility . . .
for correctness, . . . questions of fact . . . for clear error,’ and the final
‘ruling on admissibility for abuse of discretion.’” State v. Jackson,
2010 UT App 328, ¶ 9, 243 P.3d 902 (alteration and omissions in
original) (quoting State v. Rhinehart, 2006 UT App 517, ¶ 10, 153
P.3d 830). Defendant also contends that trial counsel was
ineffective for not keeping this evidence out and for not requesting

20100789‐CA 5 2013 UT App 245
 State v. Garrido

a limiting instruction focused on this evidence. As just noted,
ineffective assistance of counsel claims raised for the first time on
appeal present questions of law that we review for correctness.
Clark, 2004 UT 25, ¶ 6.

¶11 Fourth, Defendant asserts that the trial court failed in its
duty to adequately inquire into Defendant’s request for new
counsel. “Whether a trial court should have inquired further into
a defendant’s dissatisfaction with counsel is reviewed for an abuse
of discretion.” State v. Hall, 2013 UT App 4, ¶ 8, 294 P.3d 632.

¶12 Finally, Defendant argues that the jury instructions were
improper. His argument centers on questions related to merger.
“Because merger questions are legal in nature, we review them for
correctness.” State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179.

ANALYSIS

I. Remand and Record Supplementation

¶13 After Defendant filed his opening brief in this appeal, the
State moved to stay the proceedings so that the record could be
supplemented under rule 11 of the Utah Rules of Appellate
Procedure. Rule 11 states:

If any difference arises as to whether the record truly
discloses what occurred in the trial court, the
difference shall be submitted to and settled by that
court and the record made to conform to the truth. If
anything material to either party is omitted from the
record by error or accident or is misstated, the parties
by stipulation, the trial court, or the appellate court,
either before or after the record is transmitted, may
direct that the omission or misstatement be corrected
and if necessary that a supplemental record be
certified and transmitted.

20100789‐CA 6 2013 UT App 245
 State v. Garrido

Utah R. App. P. 11(h). The transcript omitted the declarations
Victim made from the gallery and did not document her swift exit
from the courtroom. Some of the comments made in a sidebar
conference regarding Victim’s availability were also transcribed as
“inaudible.” The State moved to make a more complete appellate
record of these events. Defendant opposed the motion, but this
court granted it. The case was remanded to the trial court, and a
hearing was held.

¶14 At the hearing, the trial court heard from Defendant’s trial
counsel, the prosecutors, and a bailiff who had been present at the
trial. The trial court also stated for the record its own recollection
of the events. While there were some minor discrepancies in the
recollections, everyone indicated that Victim had appeared in the
middle of the proceedings, yelled from the gallery that she would
not testify, and then left. The bailiff who had been sent after her
when she left the courtroom testified that he went to the elevators
to find her but she was nowhere to be seen.

¶15 On appeal, Defendant merely repeats the same arguments
he made in opposing the rule 11(h) remand. We have already
considered and rejected these exact claims in granting the
requested remand, and therefore see no need to revisit them,
especially given the “law of the case” doctrine. See IHC Health
Servs., Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588. We
were well within our discretion under rule 11(h) to remand the case
so that the record could more fully reflect the omitted events that
led to Victim’s preliminary hearing testimony being read as a
substitute for her live testimony at trial.5 See Utah R. App. P. 11(h).

5. Defendant argues alternatively that “even if the witness’s
supplemental statement became part of the record, such a
supplementation cannot make up for the lower court’s failure to
establish findings of fact and conclusions of law on the record
below.” We disagree. The court on remand specifically asked
Defendant’s appellate counsel at the supplementation hearing if
counsel wanted findings to be made, and Defendant’s appellate
(continued...)

20100789‐CA 7 2013 UT App 245
 State v. Garrido

II. Sixth Amendment Rights

¶16 Defendant argues that the trial court did not make adequate
findings to support a determination that Victim was unavailable
and that his Sixth Amendment rights were subsequently violated
when Victim’s preliminary hearing testimony was admitted.
Defendant also argues that his trial counsel was ineffective for
failing to cross‐examine Victim at the preliminary hearing.

¶17 Prior testimony, such as that offered at a preliminary
hearing, is admissible when a witness is found to be unavailable.
Utah R. Evid. 804(b)(1). A witness is unavailable when, among
other circumstances, the witness “refuses to testify” or “is absent
from the trial or hearing and the statement’s proponent has not
been able, by process or other reasonable means, to procure the
[witness’s] attendance.” Id. R. 804(a). We conclude that Victim was
unavailable. Victim persistently refused to testify prior to trial, was
resistant to service, and was absent when called. The trial court
made a finding that Victim was unavailable and asked that a stand‐
in witness come forward to read Victim’s preliminary hearing
testimony. Although Victim then suddenly appeared, she did so
only to shout from the gallery that she would not be testifying. A
bailiff went after her when she then fled the courtroom, but she had
already disappeared. The trial court’s statement—“I’m not going
to continue with this charade. We’re just going to take her
testimony as it’s written.”—appears to be a simple affirmation of
its prior, formal ruling of unavailability. But even if it was not, the
“clear, uncontroverted” facts support a determination that she was
not available to testify. See Stonehocker v. Stonehocker, 2008 UT App
11, ¶ 16, 176 P.3d 476 (citations and internal quotation marks
omitted). Victim was absent for all but a brief moment of the trial,
during which she refused to take the stand and then fled. It was,
therefore, not error for the court to determine Victim was
unavailable because she “refus[ed] to testify” and was “absent

5. (...continued)
counsel replied, “No.” Thus, if the failure to make findings was an
error, it was invited, and we will not consider it further. See Pratt
v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366.

20100789‐CA 8 2013 UT App 245
 State v. Garrido

from the hearing,” and on that basis to admit her preliminary
hearing testimony into evidence.

¶18 Defendant argues that even if Victim was unavailable, his
Sixth Amendment rights were still violated. “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. But see
State v. Timmerman, 2009 UT 58, ¶¶ 13, 16, 218 P.3d 590 (noting that
there is no constitutional right to confrontation of witnesses at
preliminary hearings). However, when a witness is unavailable,
preliminary hearing testimony is admissible in a criminal trial if the
defendant had a prior opportunity to cross‐examine the witness.
Crawford v. Washington, 541 U.S. 36, 68 (2004). Defendant argues
that he was denied his Sixth Amendment rights because trial
counsel did not ask Victim any questions on cross‐examination at
the preliminary hearing. However, “[i]t is the opportunity to cross‐
examine that is guaranteed by the state and federal constitutions,
not whether that opportunity is exercised.” State v. Nelson, 725 P.2d
1353, 1357 (Utah 1986) (emphasis added). While “[d]efense counsel
may have elected to forego cross‐examination[,] . . . that does not
mean that the opportunity was not available.” Id.

¶19 Defendant’s trial counsel was given three different
opportunities to cross‐examine Victim at the preliminary hearing
but declined to do so—almost certainly because the testimony
elicited by the prosecution from Victim was favorable to Defendant
as she recanted many of her previous allegations against him and
claimed to have forgotten about the relevant incidents. See State v.
King, 2010 UT App 396, ¶ 49, 248 P.3d 989 (“[A]ttorneys may opt to
forego cross‐examination of witnesses for valid strategic reasons.”);
State v. Strain, 885 P.2d 810, 815–16 (Utah Ct. App. 1994) (holding
counsel’s decision to forego cross‐examination of witness was
“within the range of legitimate trial strategies” because testimony
was favorable to the defendant and further probing “would not
only be fruitless but also potentially harmful”). Indeed, in an
exchange with Defendant’s counsel at trial, the court stated, “[Y]ou
chose not to cross‐examine [Victim at the preliminary hearing]
because [her testimony] was favorable to your client,” and trial
counsel responded, “On that, on those issues, yes.”

20100789‐CA 9 2013 UT App 245
 State v. Garrido

¶20 We conclude that it was the opportunity to cross‐examine
Victim, not the actual undertaking of cross‐examination, that
satisfied the requirements of Crawford. While Defendant has
assailed trial counsel’s refusal to cross‐examine Victim at the
preliminary hearing, we determine that it was a logical and
routine choice, made to avoid to avoid the possibility of disturbing
favorable testimony. Defendant’s Sixth Amendment rights were
not violated when the preliminary hearing testimony was admitted
because Defendant was provided the requisite opportunity for
cross‐examination at that stage of the proceedings.

¶21 Under these circumstances, we conclude that Defendant’s
trial counsel was not ineffective. Counsel is ineffective if his
performance is both deficient and prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). In order to prove deficient
performance, “the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). As we have just discussed, a
decision to forego cross‐examination may be a legitimate strategy,
and it is one that is easily justified on the record before us.
Therefore, we cannot agree that Defendant’s trial counsel was
ineffective for declining to cross‐examine Victim after she offered
testimony that was favorable to Defendant.

¶22 Defendant also argues that the preliminary hearing
testimony lacks the necessary constitutional protections of the Sixth
Amendment because certain evidence was not discovered by trial
counsel until after the preliminary hearing. Specifically, trial
counsel became aware of Victim’s prior criminal convictions,
vindictive statements Victim made about Defendant to the effect
that she may have set him up or falsified charges against him, and
other credibility and character evidence that trial counsel asserted
he would have questioned her on during cross‐examination had he
known about it. However, even if the evidence discovered after the
preliminary hearing means the preliminary hearing testimony was
not as complete as it might have been, we conclude that any
dereliction on counsel’s part did not prejudice Defendant. Counsel
introduced the vindictive statements and attacked Victim’s
credibility through another witness at trial, and the jury learned of

20100789‐CA 10 2013 UT App 245
 State v. Garrido

Victim’s convictions through a stipulation. Although it may have
been more convenient for Defendant had trial counsel discovered
the evidence sooner, Defendant was not harmed by counsel’s
ignorance of this information at the preliminary hearing because
the evidence was discovered in time to be used at trial.

III. Hearsay Statements

¶23 The State made a motion at trial to admit the out‐of‐court
statements made by Victim to the prosecutor that were overheard
on speakerphone by a paralegal. The trial court admitted
the statements over Defendant’s objections under the state‐of‐
mind exception found in rule 803 of the Utah Rules of
Evidence. Defendant argues that the admission of these
statements violated Defendant’s Sixth Amendment rights to
confrontation. “[N]ontestimonial hearsay can be admitted under
generally accepted exceptions to the hearsay rule without running
afoul of the Sixth Amendment.” Salt Lake City v. Williams, 2005 UT
App 493, ¶ 14, 128 P.3d 47. “The focus of the Confrontation Clause
is on witnesses who bear testimony against the accused.” Id. ¶ 15.
Here, Victim’s statements were not accusatory nor did they amount
to bearing witness against Defendant. The statements repeated by
the paralegal were simply declarations of Victim’s intention not to
testify, with reference to her fear of Defendant as a reason for not
doing so.

¶24 Defendant argues that limiting instructions are a per se
requirement to admitting out‐of‐court statements regarding the
fear a victim has of a defendant. It is true that in homicide cases
when a deceased victim’s mental state is not directly at issue, a
limiting instruction must be given before statements related to a
victim’s state of mind or his or her fear of the defendant can be
admitted. State v. Wetzel, 868 P.2d 64, 68–69 (Utah 1993); State v.
Auble, 754 P.2d 935, 937 (Utah 1988). And when a curative
instruction is not deemed to be sufficient to overcome the potential
for prejudice, the out‐of‐court statements simply will not be
admitted. Wetzel, 868 P.2d at 68–69; Auble, 754 P.2d at 937.
However, this case does not involve a homicide, and the statements
were not related to Victim’s state of mind at or near the time of the
attack.

20100789‐CA 11 2013 UT App 245
 State v. Garrido

¶25 Further, out‐of‐court statements related to a victim’s state of
mind are admissible when a victim’s mental condition is at issue in
the trial or is “relevant to prove or explain her subsequent acts or
conduct.” See State v. Wauneka, 560 P.2d 1377, 1379 (Utah 1977).
That is the situation presented here. Victim’s out‐of‐court
statements regarding her fear of Defendant were admitted to
explain her subsequent behavior. Victim was consistently
uncooperative with the prosecution, and shortly after making her
out‐of‐court statements to the prosecutor, she appeared at a
preliminary hearing where she offered testimony that directly
contradicted statements she had made to the police at the time of
the attacks. Because Victim’s credibility had become an issue at
trial, it was not error for the trial court to admit nontestimonial out‐
of‐court statements that would provide an explanation for her
inconsistent statements and her failure to appear.

¶26 Nor was trial counsel ineffective for failing to request a
limiting instruction concerning the out‐of‐court statements.
Choosing to forgo a limiting instruction can be a reasonable
decision to avoid drawing attention to unfavorable testimony. See
State v. Harter, 2007 UT App 5, ¶ 16, 155 P.3d 116 (holding failure
to request limiting instruction was not ineffective assistance of
counsel because such an instruction could have drawn the jury’s
attention to the defendant’s flight from police officers). A limiting
instruction here could have drawn the jury’s attention to Victim’s
fear of Defendant, and we thus readily conclude that it was not
ineffective for counsel to opt not to request such an instruction.
Defendant has not “overcome the presumption that . . . the
challenged action ‘might be considered sound trial strategy.’” See
Strickland v. Washington, 466 U.S. 668, 690 (1984) (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).

IV. Trial Court’s Inquiry into Request for New Counsel

¶27 Four days before his trial was to begin, Defendant expressed
concern about his counsel’s performance. The trial court requested
a written motion, and Defendant provided one. Defendant’s
handwritten motion to the judge explained that he was concerned
about the violation of his right to confrontation and that he had not
known he could have cross‐examined Victim at the preliminary

20100789‐CA 12 2013 UT App 245
 State v. Garrido

hearing. He expressed displeasure with counsel’s decision not to
ask Victim any questions at the preliminary hearing. The trial court
read the motion and then responded to Defendant’s concern this
way: “I think what [this motion] is telling me is that at the
preliminary hearing you felt like you were denied your right of
confrontation and that is because your counsel didn’t ask any
questions of the witnesses called by the State, in this case the victim
. . . . [I]s that correct?” Defendant replied that it was. The trial court
explained to Defendant that he had had an opportunity for cross‐
examination. The trial court then asked, “Now, having said all that
with a recanting witness saying [the attacks] didn’t happen and
that you didn’t do it, what more would you ask them?” Defendant
replied that he would have asked Victim “why she felt that she did
these things against me or said these things against me.” The trial
court denied Defendant’s motion for new trial counsel, explaining,

The reason and basis for the denial is the right to
confrontation did exist[6] and a trial tactic associated
with asking what turns out to be a friendly witness,
cross examination questions to cause her to recant
from the recantation she’s already made, would be
not only ill advised but not something that a
competent lawyer would undertake to do.

¶28 When an indigent defendant expresses dissatisfaction with
his appointed attorney, the trial court must make “some
reasonable, non‐suggestive efforts to determine the nature of the
defendant’s complaints” and inquire sufficiently to “determine
whether the defendant’s relationship with his or her appointed
attorney has deteriorated to the point that sound discretion
requires substitution or even to such an extent that his or her Sixth
Amendment right to counsel would be violated but for
substitution.” State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App.

6. The trial court apparently misspoke in referring to “the right to
confrontation,” per se, as opposed to the opportunity for cross‐
examination. Neither the Utah nor federal confrontation clause
applies at preliminary hearings. See State v. Timmerman, 2009 UT 58,
¶¶ 13, 16, 218 P.3d 590.

20100789‐CA 13 2013 UT App 245
 State v. Garrido

1987). “[P]erfunctory questioning is not sufficient,” and a trial
court’s inquiry will generally meet the standard if it unearths the
specific, rather than general, concern a defendant has about his
counsel’s performance. Id. Here, the trial court inquired into
Defendant’s request by asking for a written motion and then
repeating back to Defendant the trial court’s interpretation of the
concern to make sure the court understood it fully. Once the court
was assured it understood Defendant’s specific concern, it then
explained the applicable legal concepts and inquired as to what
Defendant would have asked Victim had he fully understood his
right to cross‐examine her at the preliminary hearing. This kind of
thoughtful inquiry certainly meets the “reasonable,
non‐suggestive” standard. See id.

¶29 Substitute counsel is mandatory when a trial court’s inquiry
uncovers good cause, but absent such good cause, a decision to
grant or deny a defendant’s request for new counsel is
discretionary. Id. at 272. Trial courts are afforded “particularly
broad deference” when a motion for new counsel is made by a
defendant “at the threshold of the trial.” State v. Vessey, 967 P.2d
960, 962 n.1 (Utah Ct. App. 1998). Here, the court’s inquiry
uncovered no good cause for replacing counsel. Thus, we conclude
that it was not an abuse of discretion for the trial court to deny
Defendant’s request for new counsel, made just four days before
trial was to begin, when the conduct complained of was properly
deemed to have been sound trial strategy.

V. Merger

¶30 Defendant’s final argument is that the jury instructions
improperly allowed Defendant to be convicted of aggravated
assault in addition to aggravated kidnapping and aggravated
burglary. Although couched in terms of a challenge to the jury
instructions, Defendant’s argument is, at its core, an argument
about merger. Defendant argues that his conviction for aggravated
assault should be vacated because of the crime’s statutory overlap
with aggravated burglary and aggravated kidnapping.

¶31 A defendant may not be convicted “of both the offense
charged and [a lesser] included offense. An offense is so included

20100789‐CA 14 2013 UT App 245
 State v. Garrido

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) (LexisNexis 2012). When “crimes
standing in a greater‐lesser relationship have multiple variations,”
we must “consider the evidence to determine whether that
relationship existed between the specific variations of the crimes
actually proved” at trial. State v. Bradley, 752 P.2d 874, 877 (Utah
1985). Even if there is overlap in the statutory elements, if the
convictions rely on “materially different acts,” then one crime will
not be a lesser included offense of another. See State v. Smith, 2003
UT App 179, ¶ 16, 72 P.3d 692. In making this evaluation, we will
view the evidence in the light most favorable to the jury’s verdict.
State v. Sherard, 818 P.2d 554, 557 (Utah Ct. App. 1991).

¶32 A conviction for aggravated burglary requires proof of
burglary plus one of the following variations: (1) bodily injury, (2)
the use or threatened use of a dangerous weapon, or (3) the
possession or attempted use of a dangerous weapon or explosive.
Utah Code Ann. § 76‐6‐203 (LexisNexis 2012). Aggravated assault,
at the time of these events, required one of the following variations
of assault: (1) attempting to do bodily injury with unlawful force or
violence, (2) threatening to do bodily injury accompanied by a
show of immediate force or violence, or (3) acting with unlawful
force or violence and causing bodily injury or creating a substantial
risk of bodily injury, plus the intentional infliction of serious bodily
injury or the use of a dangerous weapon or other means likely to
produce death or serious bodily injury. Id. § 76‐5‐102; id. § 76‐5‐103
(2008). The jury had before it evidence to support multiple variants
of each crime. Indeed, there was enough evidence to support four
separate aggravated assaults, but the State charged only one.7

7. The State contends there were four separate acts committed by
Defendant that amounted to aggravated assault: (1) holding the
knife to Victim’s throat and threatening to kill her, (2) grabbing
Victim by the hair and throwing her to the ground, (3) jumping up
and down on Victim’s face, and (4) stabbing Victim’s hand with a
knife.

20100789‐CA 15 2013 UT App 245
 State v. Garrido

¶33 Although Defendant used the same dangerous weapon, a
knife, in the commission of each of his acts on that night, the jury
was free to conclude, as we do viewing the facts in the light most
favorable to its verdict, that there were at least three distinct
occasions when the knife came into play. First, Defendant
committed aggravated burglary when he unlawfully entered
Victim’s home with a stolen key and then remained there
unlawfully while in possession of the knife. Second, Defendant
committed aggravated assault when he threatened to kill Victim
while armed with the knife. Third, hours later, Defendant
committed aggravated kidnapping when he used the knife to hold
Victim against her will. Because these convictions can be supported
by “materially different acts,” we conclude that it was not error for
the trial court to conclude that aggravated assault was not a lesser
included offense of aggravated burglary or aggravated kidnapping
on the evidence before it. “Thus, the court was not required to
instruct the jury on these concepts.” State v. Pierson, 2000 UT App
274, ¶ 21, 12 P.3d 103.

¶34 Even without taking all of the knife’s multiple uses into
account, we still conclude that evidence exists that would support
the jury’s conclusion that Defendant was guilty of aggravated
assault separate from aggravated burglary and aggravated
kidnapping. The jury could easily have found Defendant guilty of
aggravated burglary for entering Victim’s home and grabbing the
knife as an aid in unlawfully remaining in her home and then
found him guilty of aggravated assault for throwing Victim to the
ground and stomping on her head. And “[w]hen a kidnaping
occurs under circumstances involving a charged companion
criminal activity”—such as aggravated assault—if the “kidnaping
was not ‘merely incidental or subsidiary to [the companion]
crime,’” separate convictions can be supported. State v. Diaz, 2002
UT App 288, ¶ 19, 55 P.3d 1131 (second alteration in original)
(quoting State v. Couch, 635 P.2d 89, 93 (Utah 1981)). See State v.
Finlayson, 2000 UT 10, ¶¶ 20–24, 994 P.2d 1243. Here, Defendant
did not just hold Victim against her will as long as was necessary
to complete any of the acts that could have constituted aggravated
assault, but rather all night long. This extended detention “was not
‘merely incidental’” to the aggravated assault, and separate

20100789‐CA 16 2013 UT App 245
 State v. Garrido

convictions were therefore warranted. See Diaz, 2002 UT App
288, ¶ 19.

¶35 Defendant argues that even though an objection to the jury
instructions and an argument about the merger issues were not
made below, any error can still be remedied under the doctrines of
plain error, manifest injustice, or ineffective assistance of counsel.
Because we determine that aggravated assault does not merge with
aggravated kidnapping and aggravated burglary on the record
before us, we conclude that the trial court was not required to give
instructions suggesting otherwise and that no error existed, plain
or otherwise. Thus, none of the doctrines suggested by Defendant
to get around preservation problems are applicable and none of
them require our further consideration.

CONCLUSION

¶36 Our remand of this case for supplementation of the record
was proper. Victim’s preliminary hearing testimony was not
improperly admitted, because Victim was unavailable and because
the testimony’s admission did not violate Defendant’s Sixth
Amendment right to confrontation. The paralegal’s statements
were not erroneously admitted and did not violate Defendant’s
rights, nor was a limiting instruction related to the statements
required. Trial counsel was therefore not ineffective for failing to
request such an instruction. The trial court’s inquiry into
Defendant’s alleged conflict with counsel was sufficient, and its
denial of Defendant’s request for new counsel was not an abuse of
discretion. Finally, aggravated assault does not merge with
Defendant’s aggravated kidnapping and aggravated burglary
convictions, and the trial court was therefore not required to give
instructions suggesting otherwise to the jury.

¶37 Affirmed.

20100789‐CA 17 2013 UT App 245