State v. Kataria

2014 UT App 236
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff, Appellee, and Cross-appellant,
v.
PANKAJKARAN SINGH KATARIA,
Defendant, Appellant, and Cross-appellee.

Opinion
No. 20120734-CA
Filed October 2, 2014

Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 081403466

Jennifer K. Gowans Vandenberg, Attorney
for Appellant and Cross-appellee
Sean D. Reyes and John J. Nielsen, Attorneys for
Appellee and Cross-appellant

JUDGE JAMES Z. DAVIS authored the lead Opinion, in which
JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE concurred in
part. JUDGE J. FREDERIC VOROS JR. authored a separate opinion in
which JUDGE JOHN A. PEARCE concurred.1

DAVIS, Judge:

¶1 Pankajkaran Singh Kataria seeks reversal of his convictions
for aggravated domestic assault, a second degree felony, and

1. Parts I and II of the lead opinion represent the majority opinion.
Part III of the lead opinion, addressing the State’s cross appeal of
the trial court’s merger ruling, reflects the dissenting opinion of
Judge Davis. See infra ¶¶ 23–28. Judge Voros’s separate opinion
represents the majority decision on the merger issue. See infra
¶¶ 30–35.

1
 State v. Kataria

criminal mischief domestic violence, a class B misdemeanor. See
generally Utah Code Ann. § 76-5-103 (LexisNexis 2012); id. § 76-6-
106(2)(c), (3)(b)(iv). The State cross appeals, challenging the trial
court’s decision to merge the aggravated kidnapping charge into
the aggravated assault charge. See id. § 76-5-302 (Supp. 2013). We
affirm in part and reverse in part.

BACKGROUND

¶2 We recite the facts in a light most favorable to the jury’s
verdict. State v. Hutchings, 2012 UT 50, ¶ 26, 285 P.3d 1183. Kataria’s
convictions arise out of a single domestic dispute with his then-
girlfriend (Victim) that resulted in Victim’s sustaining a multitude
of injuries to her face, a crush injury to her right hand, extensive
bruising, a dislocated toe, multiple fractures of her right foot, a
broken nose, and bleeding in or near her brain. During this dispute,
Kataria had also wrested Victim’s cell phone from her, twice
ordered her into the bathroom to shower blood off of her body, and
stopped her from leaving the room to get a towel. Kataria did not
dispute that he assaulted Victim; instead, he argued that he was not
capable of forming the requisite mental state to support the charges
against him due to his level of intoxication. The jury convicted
Kataria of all charges, including the aggravated kidnapping charge
that the trial court subsequently merged into the aggravated
domestic assault charge.

ISSUES AND STANDARDS OF REVIEW

¶3 Kataria appeals his convictions, arguing that his trial counsel
was ineffective for failing to thoroughly investigate his voluntary
intoxication defense, for failing to object to what Kataria
characterizes as the prosecutor’s presentation of false evidence, and
for failing to move to exclude inherently prejudicial photographs
from being admitted into evidence. Ineffective assistance of counsel
claims raised for the first time on appeal present questions of law.
State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344.

20120734-CA 2 2014 UT App 236
 State v. Kataria

¶4 Kataria also argues that the trial court abused its discretion
in admitting into evidence certain photographs to which trial
counsel timely objected on the grounds that they were cumulative
and gruesome. “A trial court’s determination that photographs are
relevant is reviewed for abuse of discretion. Whether a photograph
is gruesome is a question of law, which we review for correctness.”
State v. Gulbransen, 2005 UT 7, ¶ 35, 106 P.3d 734 (citations and
internal quotation marks omitted).

¶5 On cross appeal, the State contends that the trial court erred
by merging the aggravated kidnapping charge into the aggravated
domestic assault charge. “Merger issues present questions of law,
which we review for correctness.” State v. Diaz, 2002 UT App 288,
¶ 10, 55 P.3d 1131 (citing State v. Finlayson, 2000 UT 10, ¶ 6, 994
P.2d 1243).

ANALYSIS

I. Ineffective Assistance of Counsel

A. Voluntary Intoxication Defense

¶6 We first address Kataria’s assertion that his attorneys were
ineffective in their preparation and presentation of his voluntary
intoxication defense. Voluntary intoxication is a defense to specific
intent offenses if “such intoxication negates the existence of the
mental state which is an element of the offense,” except where the
mental state element is “recklessness or criminal negligence.” Utah
Code Ann. § 76-2-306 (LexisNexis 2012); see also Adams v. State, 2005
UT 62, ¶ 22, 123 P.3d 400.

¶7 “To prove ineffective assistance of counsel, [a] defendant
must show: (1) that counsel’s performance was objectively deficient
and (2) a reasonable probability exists that but for the deficient
conduct [the] defendant would have obtained a more favorable
outcome at trial.” Ott, 2010 UT 1, ¶ 22 (citation and internal
quotation marks omitted). To satisfy the deficient performance
prong of the ineffective assistance test, “a defendant must identify

20120734-CA 3 2014 UT App 236
 State v. Kataria

the acts or omissions which, under the circumstances, show that
counsel’s representation fell below an objective standard of
reasonableness” and overcome the reviewing court’s presumption
that “the challenged action might be considered sound trial
strategy.” State v. Templin, 805 P.2d 182, 186 (Utah 1990) (footnote,
citations, and internal quotation marks omitted). “The court must
then determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland v. Washington, 466
U.S. 668, 690 (1984). An ineffective assistance claim cannot succeed
unless both required showings are made, and a court may conclude
its inquiry if it determines that the defendant has failed to meet his
burden on either prong. Id. at 697.

¶8 Kataria asserts that despite evidence in the record
supporting an intoxication defense, including Victim’s preliminary
hearing testimony that Kataria was “very drunk” when the assault
occurred, his trial counsel “claimed they learned for the first time
on the eve of trial that he was highly intoxicated.” This argument
is somewhat disingenuous; what trial counsel “learned for the first
time on the eve of trial” was not that there was alcohol involved at
the time of the assault, but that Victim had specifically identified
the amount Kataria had consumed as half a gallon of whiskey in a
victim impact statement (the VIS) that was not given to the defense
until the day before trial. Trial counsel acknowledged to the court
that “there has been testimony and evidence all along that some
alcohol was involved” but maintained that they did not believe that
the evidence was sufficient to support an intoxication defense until
they discovered the statement in the VIS.

¶9 Regardless of whether Kataria’s trial counsel should have or
could have discovered this information sooner or whether their
preparation was rushed, trial counsel nonetheless presented
sufficient evidence to entitle Kataria to a jury instruction for
voluntary intoxication. The evidence trial counsel presented to the
jury included testimony indicating that both Kataria and Victim
had been drinking that night, that Victim may have indicated at
some point in time that she believed Kataria could have consumed
up to half a bottle or half a gallon of whiskey, that Kataria’s verbal

20120734-CA 4 2014 UT App 236
 State v. Kataria

and physical assaults were out of character, and that Kataria drank
so much he could not remember what he had done.

¶10 Kataria also asserts that his trial counsel performed
deficiently by failing to impeach Victim’s trial testimony that
Kataria was not drunk with her preliminary hearing testimony in
which she described Kataria as “very drunk” that evening. While
trial counsel did not impeach Victim with this particular statement
from her preliminary hearing testimony, their cross-examination of
Victim nonetheless effectively challenged the quality of her
memory and her understanding of what being “very drunk”
entails. Additionally, counsel did elicit testimony from Victim that
Kataria was not acting like himself, that she assumed he had been
drinking a lot that day, and that she had speculated in her VIS that
the amount he had consumed may have been as much as half of a
gallon, which was bolstered by evidence of her statement to a 911
dispatcher that Kataria was drunk. Counsel further impeached
Victim by questioning the accuracy of her memory with
inconsistent statements she had made about her jealousy of other
women Kataria had been contacting at the time.

¶11 Kataria last points to his trial counsel’s attempts to cross-
examine two of the State’s witnesses about the effects of heavy
drinking as further evidence of their deficient preparation and
presentation of “Kataria’s only defense.” Trial counsel attempted
to elicit testimony during their cross-examination of one of the
responding police officers regarding what sort of alcohol-related
training the officer had received and to have the officer elaborate
as to why investigating alcohol use in domestic violence calls was
important. The State objected to this questioning, which objection
the court sustained. Trial counsel, however, still managed to elicit
testimony from the officer that “the Defendant had used alcohol”
that night and that alcohol “can impair what a person does and
things that they say.” Similarly, trial counsel attempted to elicit
testimony from a second witness, also a responding police officer,
as to the general effects alcohol may have on an individual in light
of the officer’s “several hours of DUI training.” The failure to elicit
the desired testimony from the second police witness was, at best,
of minimal impact where the general effects of alcohol intoxication

20120734-CA 5 2014 UT App 236
 State v. Kataria

were described at various points throughout the trial, including
during the first officer’s testimony that alcohol “can impair what a
person does and things that they say”; during Victim’s testimony
associating being drunk with slurring words, staggering, and
falling down stairs; and in questions by both the prosecutor and
defense counsel that implied that alcohol has both a relaxing effect
and an impairing effect on one’s capacity “to go about [his] day”
without, e.g., misplacing items, burning himself while cooking,
passing out, or getting sick. Indeed, many courts, including our
supreme court, consider the general effect of alcohol intoxication
to be a matter of common knowledge of which courts may take
judicial notice. See, e.g., Dixon v. Stewart, 658 P.2d 591, 597 (Utah
1982) (“[I]t is generally held that expert testimony is not required
in the case of intoxication with alcohol . . . .”); DeFusion Co. v. Utah
Liquor Control Comm'n, 613 P.2d 1120, 1124 (Utah 1980)
(recognizing “that courts uniformly take judicial notice of the
intoxicating nature of alcohol”); 29 Am. Jur. 2d Evidence § 106 (“The
nature of alcoholic beverages is a matter of common knowledge. A
judge may judicially notice well known, undisputed facts about the
effect of alcohol . . . .” (citing Lanham v. Coombe, 650 N.Y.S.2d 44, 45
(N.Y. App. Div. 1996); Poulnot v. District of Columbia, 608 A.2d 134,
142 (D.C. 1992))).

¶12 Accordingly, we agree with the State that Kataria’s trial
counsel “adequately investigated and implicitly accomplished what
[Kataria] now claims [they] should have explicitly done,” and
therefore, Kataria has failed to demonstrate deficient performance.
As a result, this ineffective assistance of counsel claim fails.

B. Prosecutorial Misconduct

¶13 Kataria next argues that the State “intentionally solicited
false testimony from [Victim] that [Kataria] was not intoxicated”
and then reiterated this “false testimony” during closing argument
to emphasize its position that although Kataria may have been
drinking, he was not drunk at the time of the assault. See generally
State v. Kohl, 2000 UT 35, ¶ 22, 999 P.2d 7 (describing the two-part
test for establishing prosecutorial misconduct). Because this
argument is not preserved, Kataria requests that we review it

20120734-CA 6 2014 UT App 236
 State v. Kataria

under an ineffective assistance of counsel or plain error framework.
“To prevail under plain error review, a defendant must
demonstrate that (i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e., absent
the error, there is a reasonable likelihood of a more favorable
outcome.” State v. Ross, 2007 UT 89, ¶ 17, 174 P.3d 628 (citations
and internal quotation marks omitted).

¶14 Kataria specifically alleges that Victim lied when she
testified at trial that Kataria was not slurring his speech or
staggering drunk the night of the assault in light of her preliminary
hearing testimony that Kataria was “very drunk.” This argument
presupposes that these testimonies are mutually exclusive and that
Kataria’s level of intoxication was not disputed at trial. However,
Kataria’s own disbelief that a “very drunk” person could possibly
maintain his ability to speak and walk normally does not support
his accusation that the prosecution perpetuated falsehoods. Both of
the cited statements made by Victim could be true.

¶15 Accordingly, because we are not convinced that Victim’s
testimony was necessarily false, we reject Kataria’s assertions that
the prosecution “intentionally solicited false testimony,” failed to
correct false testimony, and relied on false testimony in its closing
argument. As a result, Kataria’s prosecutorial misconduct
argument fails to establish ineffective assistance of counsel and fails
to demonstrate plain error.

C. Photographic Evidence

¶16 Kataria next argues that his trial counsel performed
deficiently for failing to take steps to exclude “inherently
inflammatory evidence” by failing to file a motion in limine prior
to trial and for failing to object to the evidence during the trial. The
evidence Kataria challenges consists of a series of photographs
taken the night of the assault showing Victim’s blood-spattered
bedroom and close-ups of her various injuries, as well as additional
photos of Victim’s injuries taken a few days after the assault.
Kataria contends that because the notion that Victim “was injured,
the nature of her injuries, and the person who caused her injuries

20120734-CA 7 2014 UT App 236
 State v. Kataria

were not disputed facts at trial,” the photographs were not relevant
and otherwise had no probative value as to “whether Kataria was
capable of forming specific intent.”

¶17 We disagree. First, we note that “a stipulation of fact by
defense counsel does not make evidence less relevant, nor is it a
basis for depriving the prosecution the opportunity of profiting
from the legitimate moral force of its evidence in persuading a
jury.” State v. Gulbransen, 2005 UT 7, ¶ 37, 106 P.3d 734 (citation and
internal quotation marks omitted). Likewise, “the fact that the same
evidence could have been provided by purely testimonial means
does not necessarily make a photograph inadmissible.” Id. ¶ 38
(citation and internal quotation marks omitted). Here, the
photographs were clearly relevant in establishing an essential
element of the assault and kidnapping charges—the extent to
which Victim was injured. For a conviction of aggravated domestic
assault, the jury needed to find that Victim sustained “serious
bodily injuries,” which the jury instructions defined 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.” The jury
was also instructed on domestic assault, which required a finding
of “substantial bodily injury.” The instructions defined “substantial
bodily injury” as “bodily injury not amounting to serious bodily
injury, that creates or causes protracted physical pain, temporary
disfigurement, or temporary loss or impairment of the function of
any bodily member or organ.” A variant of aggravated kidnapping
on which the jury was instructed permitted conviction of that
offense based on a finding that Kataria intentionally or knowingly
detained or restrained Victim and, “in the course of doing so, . . .
acted with the intent . . . [t]o inflict bodily injury on . . . the victim.”
The jury was instructed that bodily injury “means physical pain,
illness, or any impairment of physical condition.” In contrast, the
jury instruction on the lesser-included offense to aggravated
kidnapping—unlawful detention—did not contain an injury
element at all.

¶18 Accordingly, Kataria’s trial counsel did not perform
deficiently by failing to object to the admission of the enumerated

20120734-CA 8 2014 UT App 236
 State v. Kataria

photographs either during trial or through a pretrial motion in
limine. We are convinced that any such motion or objection would
have been futile considering the relevance of the disputed
photographs. See Codianna v. Morris, 660 P.2d 1101, 1109 (Utah
1983) (“[T]he failure of counsel to make motions or objections
which would be futile if raised does not constitute ineffective
assistance.” (citation and internal quotation marks omitted)).

II. Additional Photographic Evidence

¶19 Kataria’s trial counsel timely objected to two photographs
admitted into evidence on the grounds that the images were
“inherently inflammatory” and “cumulative.” See generally Utah R.
Evid. 403. “The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Id. In reviewing the trial court’s decision to
admit these photos, we look for an abuse of discretion. See State v.
Jackson, 2010 UT App 328, ¶ 9, 243 P.3d 902. “Evidentiary errors on
the part of the trial court will only be reversed if prejudicial.” Id.

¶20 The photographs at issue were taken at the crime scene and
show the injuries to Victim’s face shortly after the assault. One is
taken from an angle that shows more of the left side of Victim’s
face and the other from an angle showing more of the right side of
her face. A third photograph, deemed properly admitted, shows
the same face and head injuries but from yet another perspective.
In other words, three photos were admitted of Victim’s head and
face injuries, and although each photo was taken from a different
angle, Kataria challenges the three images as two too many.

¶21 Kataria does not dispute the relevance of these photographs;
rather, he reargues his earlier assertion that because Kataria’s intent
was the only disputed fact at trial, these photographs had no
probative value and therefore the probative value of the

20120734-CA 9 2014 UT App 236
 State v. Kataria

photographs was clearly outweighed by the risk of unfair prejudice
resulting from the gruesomeness of the images.2

¶22 “We have frequently stated and applied the rule that color
photographs of the body of the victim—even photographs that are
gruesome—are not inadmissible if they are probative of essential
facts, even though they may be cumulative of other evidence.” State
v. Garcia, 663 P.2d 60, 63 (Utah 1983). We reject Kataria’s argument
that because the fact of Victim’s injuries was not disputed at trial,
the photographs of her injuries have no probative value for the
same reason we rejected his similar argument above. Accordingly,
Kataria has failed to refute the probative value of these two photos,
and he has otherwise failed to sufficiently argue how these images
are impermissibly cumulative. The trial court’s admission of these
two photographs over Kataria’s objections at trial was not an abuse
of discretion.

III. Cross Appeal3

¶23 On cross appeal, the State argues that the trial court erred in
merging the aggravated kidnapping charge into the aggravated
domestic assault charge. Specifically, the State contends that
“because there is no detention inherent in assault,” Victim’s
undisputed testimony that Kataria “twice forced [Victim] to shower
between assaults and prevented her from leaving the room” to get
a towel sufficiently support a separate charge of aggravated
kidnapping. “Merger issues present questions of law, which we

2. Kataria also insinuates that the trial court abused its discretion by
failing to properly analyze the photographs under rule 403 of the
Utah Rules of Evidence. This argument is not sufficiently briefed to
warrant our review. See Utah R. App. P. 24(a)(9) (describing the
requirements of an adequately briefed argument).

3. As previously noted, this section of the lead opinion reflects the
dissenting views of Judge Davis. The majority opinion on the issues
presented in this section is contained in Judge Voros’s separate
opinion. See infra ¶¶ 30–35.

20120734-CA 10 2014 UT App 236
 State v. Kataria

review for correctness.” State v. Diaz, 2002 UT App 288, ¶ 10, 55
P.3d 1131.

¶24 “Merger is a judicially-crafted doctrine available to protect
criminal defendants from being twice punished for committing a
single act that may violate more than one criminal statute” and “is
most commonly applied to situations involving a defendant who
has been charged with committing both a violent crime, in which
a detention is inherent, and the crime of kidnaping based solely on
the detention necessary to the commission of the companion
crime.” Id. ¶ 17 (citing State v. Finlayson, 2000 UT 10, ¶ 19, 994 P.2d
1243). “When the detention involved is no longer nor larger in
scope than necessary to commit the companion crime, courts have
determined the detention to be inherent within the companion
crime and do not permit double punishment.” Id.

¶25 Utah courts rely on a three-part test to determine whether
the facts establishing a kidnapping charge are not merely incidental
to, but separate and independent from, the other offenses charged.
See Finlayson, 2000 UT 10, ¶¶ 19–20, 23–24 (determining that the act
of handcuffing the victim to the bed while raping her could not
sustain an aggravated kidnapping charge separate from the rape
charge). The test, also called the Finlayson factors, is as follows:

[I]f a taking or confinement is alleged to have been
done to facilitate the commission of another crime, to
be kidnaping the resulting movement or
confinement:

(a) Must not be slight, inconsequential and merely
incidental to the other crime;

(b) Must not be of the kind inherent in the nature of
the other crime; and

(c) Must have some significance independent of the
other crime in that it makes the other crime
substantially easier of commission or substantially
lessens the risk of detection.

20120734-CA 11 2014 UT App 236
 State v. Kataria

Id. ¶ 23 (alteration in original) (citing State v. Buggs, 547 P.2d 720,
731 (Kan. 1976)).4

¶26 The elements of aggravated kidnapping that the State
needed to prove in this case were that Kataria “[i]ntentionally or
knowingly,” “[w]ithout authority of law, and against the will of the
victim,” “[d]etained or restrained the victim,” see Utah Code Ann.
§ 76-5-301(1) (LexisNexis 2012) (kidnapping), with the intent to
“hinder or delay the discovery of or reporting of a felony,” or
“inflict bodily injury on or to terrorize the victim,”5 see id. § 76-5-
302(1)(b)(iii)–(iv) (Supp. 2013) (aggravated kidnapping). Here, the
trial court rejected the State’s arguments that Kataria’s “pinning
[Victim] down to get her phone,” “knocking her down to prevent
her from leaving the room to get a towel,” and twice interrupting
his beatings to force Victim to shower the blood off of her body
each supported a separate aggravated kidnapping charge.

¶27 I agree with the trial court. None of the specific facts cited by
the State in support of its aggravated kidnapping argument show
that any alleged detention (1) was not “merely incidental to” the
prolonged assault in this case, (2) was not inherent to the assault as
it occurred here, and (3) had any “significance independent of the”
assault that made the commission of the assault easier or facilitated
Kataria’s flight. See Finlayson, 2000 UT 10, ¶ 23 (citation and
internal quotation marks omitted). In fact, Kataria offered to call
the police for Victim, stating, “I’d gladly go to jail for you.” The
State’s strongest argument for maintaining a separate aggravated
kidnapping charge revolves around the evidence that Kataria twice

4. A proper merger analysis also requires a court to consider the
provisions of Utah Code section 76-1-402(3); however, our supreme
court has previously considered this section of the code in a case
involving similar charges and held that “aggravated kidnaping is
not a lesser included offense of aggravated assault under section
76-1-402.” State v. Lee, 2006 UT 5, ¶¶ 28–30, 33, 128 P.3d 1179.

5. The jury based its aggravated kidnapping conviction on its
determination that Kataria inflicted serious bodily injuries.

20120734-CA 12 2014 UT App 236
 State v. Kataria

forced Victim to shower. Victim testified that Kataria pushed her
toward the bathroom and told her to shower the blood off of
herself. She stated that she entered the shower on her own and that
Kataria did not barricade the door or otherwise detain her in the
shower; indeed, she testified that from the shower, she could see
Kataria through the lace shower curtain in the bedroom on his
hands and knees cleaning blood off the floor. Victim testified that
because her nose was still bleeding when she exited the shower,
Kataria pushed her back toward the shower and told her to keep
washing. When she exited the shower for a second time and took
a few steps toward the hallway to get a towel, Kataria lunged at
her, knocked her to the ground, and resumed beating her.

¶28 Though the minutes Victim spent in the shower were
minutes in which she was not being actively assaulted and could
conceivably support the requirement that the detention “have some
significance independent of the other crime in that it makes the
other crime substantially easier of commission or substantially
lessens the risk of detection,” id., I cannot agree with the State’s
proposal that the time Victim spent bathing supports a finding that
the assault had ended, a kidnapping occurred, and then another
assault started when Victim tried to get a towel. Such a
determination pushes the line drawn by our supreme court in
Finlayson toward a slippery slope down which I do not desire to
venture.6 Accordingly, I would affirm the trial court’s decision to
merge the charges.

6. This is not to say that under a different set of facts, as was the
case in State v. Lee, 2006 UT 5, 128 P.3d 1179, a detention involved
in an assault could not support a separate charge of kidnapping.
Contrary to the majority’s opinion on this issue, I believe Lee is
distinguishable on its facts where the kidnapping conviction was
based on the defendant’s having forcibly dragged one of the
victims to a more secluded area and away from her friend where
he then engaged in the acts supporting the aggravated assault
conviction. Id. ¶ 34 (noting that “most assaults do not involve the
relocation of the victim from one site to another”).

20120734-CA 13 2014 UT App 236
 State v. Kataria

CONCLUSION

¶29 Kataria’s trial counsel did not provide ineffective assistance,
the prosecutor did not commit misconduct, and the trial court did
not err in admitting specific photographs into evidence. As
discussed below, see infra ¶¶ 30–35, the trial court’s merger ruling
is reversed.7

VOROS, Judge, (concurring in part and writing for the majority in
part):

¶30 I concur in the lead opinion except as to Part III. I agree with
the State that the trial court erred by merging Kataria’s aggravated-
kidnapping conviction into his aggravated-assault conviction. And
because Judge Pearce concurs with my resolution of this issue, the
following opinion represents the judgment of the court on this
point.

¶31 Merger of the sort at issue here traces back to the Utah
Supreme Court’s opinion in State v. Couch, 635 P.2d 89 (Utah 1981).
There, the court upheld convictions for both kidnapping and rape
because “the kidnaping was not merely incidental or subsidiary to”
the “host crime” of rape. Id. at 92–93. The court held that
commission of the crime of kidnapping “requires a period of
detention longer than the minimum inherent in the commission of
a rape or a robbery.” Id. at 93.

¶32 Our supreme court applied this merger doctrine in State v.
Finlayson, another case involving rape. 2000 UT 10, 994 P.2d 1243.
The court there used a three-part test to determine whether
kidnapping merges with another crime:

7. Because the Court has determined that no errors occurred,
Kataria’s cumulative error argument necessarily fails. See generally
State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (outlining the
cumulative error doctrine).

20120734-CA 14 2014 UT App 236
 State v. Kataria

[I]f a taking or confinement is alleged to have been
done to facilitate the commission of another crime, to
be kidnaping the resulting movement or
confinement:

(a) Must not be slight, inconsequential and
merely incidental to the other crime;
(b) Must not be of the kind inherent in the
nature of the other crime; and
(c) Must have some significance independent
of the other crime in that it makes the other
crime substantially easier of commission or
substantially lessens the risk of detection.

Id. ¶ 23 (quoting State v. Buggs, 547 P.2d 720, 731 (Kan. 1976)). The
court explained: “To sustain convictions for both kidnaping and
sexual assault, the prosecutor must show that the kidnaping
detention was longer than the necessary detention involved in the
commission of the sexual assault.” Id. ¶ 19. In Finlayson, the court
saw no “detention prior to or during the sexual assault that
exceeded the detention inherent in the sex crimes.” Id. ¶ 22. Rather,
it concluded that the defendant’s “carrying the victim into [a]
bedroom, handcuffing her, and physically preventing her escape
while the sex crimes were in progress” lacked independent
significance and was “merely incidental” to the sex crimes. Id. ¶ 23.
However, Finlayson also detained the victim for ten minutes before
driving her home, forced her to wear a jacket over her head, and
drove her home by a circuitous route taking at least thirty minutes
longer than necessary. Id. ¶ 32. The court explained that “these
actions were of an independent significance separate from the
commission of the sex crimes” and thus “sufficient to support a
conviction for simple kidnaping.” Id. ¶ 33.8

8. However, independent of the merger analysis, the court
concluded that the evidence was insufficient to prove that
Finlayson detained the victim with the intent “to facilitate the
commission, attempted commission, or flight after commission or
(continued...)

20120734-CA 15 2014 UT App 236
 State v. Kataria

¶33 In State v. Lee, 2006 UT 5, 128 P.3d 1179, our supreme court
again addressed the merger doctrine developed in Couch and
Finlayson. Lee assessed the merger of the same two offenses at issue
here: aggravated kidnapping and aggravated assault. Id. ¶ 1. Lee
approached two women and invited them to “party” with him. Id.
¶ 3. When they declined, he grabbed one of the women by the arm
and groped her. Id. ¶ 4. He also pulled one of the women across the
highway to an alley, where, after the other tried to intervene, he
attacked both women. Id. ¶¶ 5–6. Our supreme court affirmed
Lee’s convictions for both aggravated assault and aggravated
kidnapping against Lee’s merger challenge:

[D]ragging [one victim] across a highway by her hair
was not “slight, inconsequential and merely
incidental to” the assault Lee had already
commenced against her. Nor was Lee’s movement of
[the victim] to a location across Highway 40
“inherent in the nature of” his assault on her. Indeed,
most assaults do not involve the relocation of the
victim from one site to another. Finally, [the victim’s]
aggravated kidnaping carried a “significance
independent of” the aggravated assault, as it allowed
Lee to carry [one victim] away from [the other],
thereby rendering further assault, or even rape,
“substantially easier of commission.” In addition,
carrying [the victim] to the alley between two
buildings at a very early hour of the morning made
the assault far more difficult to detect than it would
have been on Highway 40 and thereby “substantially
lessen[ed] [Lee’s] risk of detection.”

8. (...continued)
attempted commission of a felony.” State v. Finlayson, 2000 UT 10,
¶¶ 33, 35, 994 P.2d 1243 (emphasis omitted). Accordingly, it agreed
with Finlayson that the evidence did not support his conviction for
aggravated kidnapping. Id. ¶ 35. Here, Kataria does not argue that
any element of his conviction for aggravated kidnapping lacks
evidentiary support.

20120734-CA 16 2014 UT App 236
 State v. Kataria

Id. ¶ 34 (final two alterations in original) (internal citations omitted)
(quoting Finlayson, 2000 UT 10, ¶ 23).

¶34 Here, Kataria pushed Victim toward the bathroom and
ordered her to shower the blood off of her body; when she
emerged, he ordered her back into the shower.9 These forced
showers constituted “a period of detention longer than the
minimum inherent in the commission of” the aggravated assault.
See Couch, 635 P.2d at 93. Unlike the detention inherent in a
rape—but like the detention in Lee—these showers were not
“‘merely incidental to the other crime,’” “‘inherent in the nature of
the other crime,’” or lacking in “‘significance independent of the
other crime.’” See Finlayson, 2000 UT 10, ¶ 23 (quoting Buggs, 547
P.2d at 731). A compulsory shower is not inherent in an aggravated
assault.10

9. Contrary to the dissenting opinion, given the ferocity of the
attacks Victim had just endured, we see no relevance in the fact
that she “entered the shower on her own and that Kataria did not
barricade the door or otherwise detain her in the shower.” See supra
¶ 22.

10. The dissent places some reliance on the third Buggs factor, that
the detention “‘[m]ust have some significance independent of the
other crime in that it makes the other crime substantially easier of
commission or substantially lessens the risk of detection.’” State v.
Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243 (quoting State v. Buggs,
547 P.2d 720, 731 (Kan. 1976)). This factor seems to cloud rather
than clarify the analysis. The first clause of that factor—that a
kidnapping must have some significance independent of the other
crime—complements the first two Buggs factors, that the detention
not be “merely incidental to the other crime” and not be “inherent
in the nature of the other crime.” Id. (citation and internal quotation
marks omitted). But the final clause of the third factor appears to
describe a crime that lacks independent significance: “in that it
makes the other crime substantially easier of commission or
substantially lessens the risk of detection.” Id. (citation and internal
(continued...)

20120734-CA 17 2014 UT App 236
 State v. Kataria

¶35 Accordingly, the trial court’s merger order is reversed and
we remand for further proceedings.

10. (...continued)
quotation marks omitted). A crime whose significance lies in
making the host crime easier to commit or get away with would
seem to be dependent on, not independent of, the host crime.
Because we cannot square this clause with Couch, Finlayson, the first
two Buggs factors, or even the first half of the third Buggs factor, we
do not accord it controlling weight.

20120734-CA 18 2014 UT App 236