State v. Ellis

2014 UT App 185
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH ,
Plaintiff and Appellee,
v.
ROGER ELLIS,
Defendant and Appellant.

Opinion
No. 20120444-CA
Filed August 7, 2014

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 101906502

Ronald Fujino, Attorney for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE concurred.1

GREENWOOD, Senior Judge:

¶1 Roger Ellis appeals from his convictions of aggravated
kidnapping, intentional abuse of a vulnerable adult, and damaging
or interrupting a communication device. We affirm.

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
 State v. Ellis

BACKGROUND

¶2 The acts leading to Ellis’s convictions occurred on August 8,
2010, in the house he shared with his then-eighty-six-year-old
mother (Mother).2 Throughout most of that day, Ellis followed
Mother around the house saying “nasty things” to her, telling her
she was “no good,” obstructing her movement, and waiting for her
outside the door of the bathroom. At one point, he called Mother
a “lying bitch” and punched her on the side of her head. Around
four that afternoon, Ellis grabbed a butcher knife from the kitchen
and began slashing the air with it, apparently attempting to
eradicate the “monsters” that he accused Mother of bringing into
the house. Mother later explained in her trial testimony that Ellis
sustained permanent and degenerative brain damage from a head
injury that occurred more than thirty years before the August 8,
2010 incident. In addition, Mother explained that Ellis “had
struggled with [drugs] for a long time” and that when he was
under the influence of “dope,” he would “see[] monsters or spirits
in the house” and become “very agitated.”

¶3 Also on August 8, 2010, under the pretense of shooing the
monsters out of the house, Mother twice attempted to exit the
house through the front door. Both times, Ellis pulled her back
inside and hit her; after her first attempt, he hit her on the shoulder,
and after the second attempt, he hit her in the head. Around 9:19
p.m., after the second blow, Ellis instructed Mother to go to bed at
which time Mother pushed the alarm on a medical alert device she
wore around her neck. Ellis answered the telephone call from the
dispatcher signaled by the medical alert device and told the
dispatcher that Mother inadvertently pressed the alarm button.

¶4 Ellis then followed Mother into her bedroom, laid next to
her on the bed with the butcher knife in his hands, and threatened
to kill her. About an hour later, Ellis left the bedroom to have a
cigarette in another part of the house, at which time Mother used

2. We recite the facts in a light most favorable to the jury’s verdict.
State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116.

20120444-CA 2 2014 UT App 185
 State v. Ellis

the cell phone in her pocket to call 911. Paramedics arrived under
the impression that Mother was experiencing chest pains. Once she
was loaded into the ambulance, Mother explained what had
actually transpired.

¶5 During a two-day jury trial, the State presented testimony
from Mother, the responding paramedics, and several police
officers involved in the investigation. Because the State alleged that
the charges of aggravated kidnapping and interference with a
communication device were both domestic violence offenses, it was
also required to prove that Ellis was Mother’s cohabitant. Ellis’s
defense rested on discrediting Mother, pointing out inconsistencies
and ambiguities in her testimony, implying that she suffered from
dementia, and suggesting that she may have injured herself in a fall
a few days prior to the August 8 incident. At the close of the State’s
case, defense counsel moved to dismiss the aggravated kidnapping
charge on grounds of insufficient evidence, but the trial court
denied the motion. The jury convicted Ellis on all counts. Ellis
appeals.

ISSUES AND STANDARDS OF REVIEW

¶6 Ellis first argues that the trial court erred by not dismissing
the aggravated kidnapping charge. “A trial court’s grant or denial
of a motion to dismiss is a question of law . . . [the court] review[s]
for correctness, giving no deference to the decision of the trial
court.” State v. Arave, 2011 UT 84, ¶ 25, 268 P.3d 163 (alterations
and omission in original) (citation and internal quotation marks
omitted).

¶7 Ellis next contends that he received ineffective assistance
from his trial counsel based on counsel’s failure to object to the jury
instructions explaining the reasonable doubt standard and to the
jury instruction defining the term “cohabitant.” “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.

20120444-CA 3 2014 UT App 185
 State v. Ellis

ANALYSIS

I. Aggravated Kidnapping

¶8 Ellis contends that it was error for the trial court not to
dismiss the aggravated kidnapping charge because he claims the
evidence was insufficient to show that a detention independent
from the facts supporting the abuse of a vulnerable adult
conviction had occurred. “A defendant’s motion to dismiss for
insufficient evidence at the conclusion of the State’s case in chief
requires the trial court to determine whether the defendant must
proceed with the introduction of evidence in his defense.” State v.
Hamilton, 2003 UT 22, ¶ 40, 70 P.3d 111 (citation and internal
quotation marks omitted). “If the State fails to produce believable
evidence of all the elements of the crime charged, the trial court
must dismiss the charges.” Id. (citation and internal quotation
marks omitted).

¶9 Thus, in reviewing the trial court’s denial of Ellis’s motion
to dismiss, “we apply the same standard used when reviewing a
jury verdict” and will uphold the denial of the motion “if upon
reviewing the evidence and all inferences that can be reasonably
drawn from it, [we] conclude[] that some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” See id. ¶ 41 (citation
and internal quotation marks omitted). The State’s theory of
aggravated kidnapping in this case required it to demonstrate that
Ellis, “in the course of committing unlawful detention or
kidnapping: (a) possesse[d], use[d], or threaten[ed] to use a
dangerous weapon . . . or (b) act[ed] with intent . . . to inflict bodily
injury on or to terrorize the victim or another.” See Utah Code Ann.
§ 76-5-302(1)(a), (1)(b)(iv) (LexisNexis Supp. 2013).3 In accordance
with the corresponding statutes, the jury was instructed that

3. Because the relevant provisions of the Utah Code in effect at the
time of the incident underlying this appeal do not differ
substantively from the current version of the Utah Code, we cite
the current version for the reader’s convenience.

20120444-CA 4 2014 UT App 185
 State v. Ellis

“unlawful detention” occurs when a person “intentionally or
knowingly, without authority of law, and against the will of the
victim, detains or restrains the victim,” see id. § 76-5-304(1)
(LexisNexis 2012), and that “kidnapping” occurs when a person
“intentionally or knowingly, without authority of law, and against
the will of the victim[,] . . . detains or restrains the victim for any
substantial period of time; [or] . . . detains or restrains the victim in
circumstances exposing the victim to risk of bodily injury,” see id.
§ 76-5-301(1)(a)–(b).

¶10 Ellis specifically argues that the State did not meet its
burden on the detention element of the kidnapping charge because
the evidence indisputably shows that “the events occurred entirely
in [Mother’s] home,” where she was able to move around freely,
and that she was left alone at least once while Ellis smoked a
cigarette. This assertion, however, focuses on the weight of the
evidence, not the sufficiency. Here, the trial court correctly ruled
that the State had presented “some evidence . . . from which a
reasonable jury could find that the elements of” aggravated
kidnapping “had been proven beyond a reasonable doubt.” See
Hamilton, 2003 UT 22, ¶ 41 (citation and internal quotation marks
omitted). We agree with the State’s summation that a reasonable
jury could base an aggravated kidnapping conviction on Mother’s
testimony that Ellis had “followed her around the house
throughout the day—even following her to the bathroom,”
prevented her from using the telephone, “twice physically
prevented her from leaving the home, foiled her attempt to get
help by calling the medical alert company, and laid down next to
her on a bed with a knife.”

¶11 Ellis also argues that the trial court erred in denying his
motion to dismiss the kidnapping charge because the charge
merged with the abuse of a vulnerable adult charge. “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.” See State v. Diaz, 2002 UT
App 288, ¶ 17, 55 P.3d 1131 (citing State v. Finlayson, 2000 UT 10,
¶ 19, 994 P.2d 1243); see also id. (“Merger is most commonly applied
to situations involving a defendant who has been charged with

20120444-CA 5 2014 UT App 185
 State v. Ellis

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.”).

¶12 A “trial court cannot assess whether, under the particular
facts of the case, one charge merges into another until the
prosecution has presented its case and the jury has convicted the
defendant of multiple charges.” State v. Lopez, 2004 UT App 410,
¶¶ 8–9, 103 P.3d 153 (“[T]he defense can object that charges merge
at any time, either during trial, or following the conviction on a
motion to vacate, but the trial court should rule on the objection
only if the jury returns convictions.” (citations and internal
quotation marks omitted)); see also State v. Hawatmeh, 2001 UT 51,
¶ 17 n.3, 26 P.3d 223 (indicating that the doctrine of merger applies
to convictions, not charges); Commonwealth v. Lowry, 394 A.2d 1015,
1018 (Pa. Super. Ct. 1978) (explaining that “a defendant may be
convicted of two merged crimes” but “can be sentenced [only]
once”). As a result, to the extent he sought dismissal of his
kidnapping charge on the basis of merger, Ellis’s motion was
premature, and he failed to raise the issue again after the jury
submitted its verdict or otherwise request that the trial court
reconsider the matter. Thus, Ellis has not properly preserved the
issue of whether the trial court should have merged the kidnapping
charge into the abuse charge and we do not address the argument
further.4 See generally Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366
(“Generally, in order to preserve an issue for appeal the issue must

4. Furthermore, even if this issue had been properly preserved, it
is without merit. Under the facts of this case, the charges could not
have been merged because the acts constituting kidnapping, as
previously described, were independent of and interspersed with
several acts of assault. See State v. Finlayson, 2000 UT 10, ¶ 19, 994
P.2d 1243 (explaining that separate convictions for kidnapping and
sexual assault can be sustained where the evidence “show[s] that
the kidnaping detention was longer than the necessary detention
involved in the commission of the sexual assault” or, in other
words, “the facts establishing the kidnaping detention must not be
merely incidental to the sexual assault, but separate and
independent therefrom”).

20120444-CA 6 2014 UT App 185
 State v. Ellis

be presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.” (citation and internal
quotation marks omitted)).

II. Ineffective Assistance of Trial Counsel

¶13 Ellis next argues that he received ineffective assistance of
counsel. Ellis claims that his trial counsel was ineffective for failing
to object to the explanation of the reasonable doubt standard in the
jury instructions and the definition of “cohabitant” in the jury
instructions.

¶14 “To prove ineffective assistance of counsel, [a] defendant
must show: (1) that counsel’s performance was objectively
deficient, and (2) [that] a reasonable probability exists that but for
the deficient conduct [the] defendant would have obtained a more
favorable outcome at trial.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d
162 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “To
satisfy the first part of the test, [a] defendant must overcome the
strong presumption that [his] trial counsel rendered adequate
assistance, by persuading the court that there was no conceivable
tactical basis for counsel’s actions.” Id. (second alteration in
original) (citations, emphasis, and internal quotation marks
omitted). To demonstrate prejudice, a defendant must show “that
counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
“[D]efendants claiming ineffective assistance of counsel [are
required] to affirmatively prove both prongs of the Strickland test
to prevail. As a result, it is not necessary for us to address both
components of the inquiry if we determine that a defendant has
made an insufficient showing on one.” Archuleta v. Galetka, 2011 UT
73, ¶ 41, 267 P.3d 232 (citations and internal quotation marks
omitted).

A. Reasonable Doubt Instructions

¶15 Ellis contends that the jury instructions that defined the
reasonable doubt standard—Instructions 16, 17, and 18—framed
the State’s burden as “no different from the standards applicable to

20120444-CA 7 2014 UT App 185
 State v. Ellis

a civil trial” and that his trial counsel was ineffective for failing to
object to these misstatements of law. Ellis contends that his trial
counsel should have requested that the court use the “safe harbor”
reasonable doubt instruction adopted by the Utah Supreme Court
in State v. Reyes, 2005 UT 33, 116 P.3d 305.

¶16 The instruction promulgated in Reyes reads,

“The [State] has the burden of proving the defendant
guilty beyond a reasonable doubt. Some of you may
have served as jurors in civil cases, where you were
told that it is only necessary to prove that a fact is
more likely true than not true. In criminal cases, the
[State’s] proof must be more powerful than that. It
must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves
you firmly convinced of the defendant’s guilt. There
are very few things in this world that we know with
absolute certainty, and in criminal cases the law does
not require proof that overcomes every possible
doubt. If, based on your consideration of the
evidence, you are firmly convinced that the
defendant is guilty of the crime charged, you must
find him guilty. If on the other hand, you think there
is a real possibility that he is not guilty, you must
give him the benefit of the doubt and find him not
guilty.”

Id. ¶ 37 (alterations in original) (quoting Victor v. Nebraska, 511 U.S.
1, 27 (1994) (Ginsburg, J., concurring in part and concurring in the
judgment)).

¶17 While the Utah Supreme Court endorsed the use of the
above-quoted language in a reasonable doubt instruction, it
explicitly did not require that trial courts use this language, stating
in a subsequent case, “‘[T]he Constitution does not require that any
particular form of words be used in advising the jury of the
government’s burden of proof.’” See State v. Austin, 2007 UT 55, ¶ 6,

20120444-CA 8 2014 UT App 185
 State v. Ellis

165 P.3d 1191 (quoting Victor, 511 U.S. at 5); see also Victor, 511 U.S.
at 5 (recognizing that “the Constitution neither prohibits trial
courts from defining reasonable doubt nor requires them to do so
as a matter of course”). Rather, our supreme court has required
“only that the instructions, taken as a whole, correctly
communicate the principle of reasonable doubt, namely, that a
defendant cannot be convicted of a crime except upon proof
beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” Austin, 2007 UT 55, ¶ 6 (citation
and internal quotation marks omitted).

¶18 Here, the jury instructions read as a whole properly and
adequately convey the concept of reasonable doubt. Instruction 15
explains that it is the prosecution’s burden to prove Ellis’s guilt
beyond a reasonable doubt, that Ellis is not required to prove his
innocence, and that the jury must presume his innocence from the
start. Instruction 16 then explains that the jurors cannot “give up
[the] assumption the defendant is innocent [unless they are]
convinced that the defendant’s guilt has been proven beyond a
reasonable doubt.” Instructions 16, 17, and 18 explain in greater
detail what makes a doubt “reasonable,” and the elements
instruction for each charged offense reiterates that before the jury
can find Ellis guilty of the offense, it “must find from all of the
evidence and beyond a reasonable doubt each and every one of the
. . . elements of that offense.” Accordingly, any objection to the
instructions based on the “safe harbor” language from Reyes would
have been futile. Trial counsel did not perform deficiently by failing
to raise a futile objection.5 See State v. Kelley, 2000 UT 41, ¶ 26, 1

5. Ellis also claims that the errors in the reasonable doubt jury
instructions amount to structural errors upon which his trial
counsel’s prejudice should be presumed. See State v. Cruz, 2005 UT
45, ¶ 17, 122 P.3d 543 (“Erroneous reasonable doubt instructions . . .
give rise to structural errors, which are different than garden-
variety trial errors. Structural errors are flaws in the framework
within which the trial proceeds, rather than simply an error in the
trial process itself. . . . [A] structural error analysis presumes
prejudice.” (citations and internal quotation marks omitted)). This
(continued...)

20120444-CA 9 2014 UT App 185
 State v. Ellis

P.3d 546 (“Failure to raise futile objections does not constitute
ineffective assistance of counsel.”).

B. Cohabitant Instruction

¶19 Last, Ellis argues that his trial counsel was ineffective for
failing to object to the definition of “cohabitant” contained in the
jury instructions. Ellis contends that because the jury instructions
in his “case incorporated the same type of cohabitant definitions”
as the jury instructions in State v. Watkins, 2013 UT 28, 309 P.3d 209,
the supreme court’s “concern” expressed in Watkins also exists
here.

¶20 In Watkins, the defendant was convicted of aggravated
sexual abuse of a child under Utah Code section 76-5-404.1(4)(h).
Watkins, 2013 UT 28, ¶ 1. The aggravated component was based on
the defendant being an adult cohabitant of the victim’s father by
virtue of his “temporarily staying in the spare bedroom of [the
victim’s] father’s house.” Id. The State theorized that the
defendant’s “status as an adult cohabitant of [the victim’s father]”
placed him in “a position of special trust” in relation to the child
victim. Id. ¶ 7 (citation and internal quotation marks omitted). The
term “cohabitant” was not defined in the statute under which the
defendant was charged, and as a result, the jury instructions
employed the definition provided in the Cohabitant Abuse Act. Id.
¶ 32 n.2. The Utah Supreme Court, in vacating the defendant’s
conviction, noted that the definition of cohabitant found in the
Cohabitant Abuse Act, “has been specifically rejected by case law
in other contexts.” Id. The court then stated, “[The defendant’s trial]
counsel’s failure to dispute the jury instruction’s definition of a
cohabitant raises possible concerns about his effectiveness.” Id. Ellis
relies on the supreme court’s observation of “possible concerns
about [counsel’s] effectiveness” in Watkins as proof that his counsel
in this case was ineffective.

5. (...continued)
argument necessarily fails in light of our determination that the
reasonable doubt jury instructions were not flawed.

20120444-CA 10 2014 UT App 185
 State v. Ellis

¶21 Watkins is inapposite. Here, we are faced with an
enhancement of a domestic violence charge based on Ellis’s
relationship as a cohabitant of Mother pursuant to Utah Code
section 77-36-1, which specifically incorporates the definition of
cohabitant from the Cohabitant Abuse Act. See Utah Code Ann.
§ 77-36-1(1) (LexisNexis 2012) (“‘Cohabitant’ has the same meaning
as in Section 78B-7-102 [of the Cohabitant Abuse Act].”). Without
more, we fail to see how these statements from Watkins extend
beyond the parties in that case. Ellis has done little more than note
the similarities between that case and his own. He has not
demonstrated how the supreme court’s observation in Watkins
establishes his own counsel’s deficient performance. Indeed, Ellis
admits that the language he relies on from Watkins is dicta and that
the Watkins court did not adopt a definition of cohabitant. Likewise,
Ellis’s recognition that cohabitation constitutes a “critical element”
in two of the charges against him does not prove that he was
actually prejudiced by the definition of cohabitant provided to the
jury. Accordingly, because Ellis has not demonstrated either prong
of the Strickland test here, we reject his argument that his trial
counsel was ineffective for failing to object to the jury instruction
defining “cohabitant.”

CONCLUSION

¶22 The trial court did not err by denying Ellis’s motion to
dismiss the aggravated kidnapping charge, and Ellis has not
demonstrated that his trial counsel provided ineffective assistance
by failing to object to the reasonable doubt jury instructions and the
jury instruction defining the term “cohabitant.” We affirm.

20120444-CA 11 2014 UT App 185