State v. Kirby

2016 UT App 193

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
KEVIN DARRELL KIRBY,
Appellant.

Opinion
No. 20140012-CA
Filed September 9, 2016

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 131905196

Joanna E. Landau, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
STEPHEN L. ROTH and SENIOR JUDGE PAMELA T. GREENWOOD
concurred. 1

ORME, Judge:

¶1 Defendant Kevin Darrell Kirby and a female acquaintance
with whom he was romantically involved (Victim) partied
together in a motel room in Salt Lake City. Before long, their
room became a crime scene, and Kirby was charged and later
convicted of tampering with a witness, a third degree felony, see
Utah Code Ann. § 76-8-508(1) (LexisNexis 2012); aggravated

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

assault, a second degree felony, see id. § 76-5-103(2)(b) (Supp.
2016); and aggravated kidnapping, a first degree felony, see id.
§ 76-5-302(3). 2 Kirby appeals. We affirm.

BACKGROUND

¶2 This case arises out of facts that are all too familiar. See
NISVS Infographic, Centers for Disease Control and Prevention,
http://www.cdc.gov/violenceprevention/nisvs/infographic.html
[https://perma.cc/VT84-HVQ7] (noting that “20 people per
minute are victims of physical violence by an intimate partner in
the United States”). While Victim’s and Kirby’s accounts differ
markedly, “we view the evidence and all inferences which may
reasonably be drawn from it in the light most favorable to the
verdict of the jury,” State v. Hales, 2007 UT 14, ¶ 36, 152 P.3d 321
(citation and internal quotation marks omitted), which in this
case means we accept Victim’s version of events.

¶3 On December 30, 2012, Kirby and Victim, whose
relationship centered around the misuse of drugs, rented a motel
room on Salt Lake City’s North Temple Street. Kirby bought
crack cocaine and vodka, which he and Victim both consumed.
They also took several of Victim’s prescription painkillers.
Before Kirby awoke the next day, Victim obtained more drugs,
which both she and Kirby consumed. Kirby accused Victim of
sleeping with the dealer to obtain the drugs and declared that he
would beat Victim if she did not tell him the truth about how she
came by the drugs.

¶4 Victim repeatedly denied the accusation, and an angered
Kirby lunged at Victim, who retreated into the bathroom.

2. The changes made to these statutes since the crimes occurred
have no bearing on the issues before us. So for ease of reference,
we cite the current codification of these statutes.

20140012-CA 2 2016 UT App 193
 State v. Kirby

Although Victim shut the door behind her, Kirby kicked it down
before knocking Victim to the ground and kicking her in the
head and face until she was bleeding profusely. Kirby cleaned
up the blood with towels and left them on the bathroom floor.

¶5 Victim then asked Kirby to allow her to get some help,
but he refused, saying that if he let her go “he was going to go
[back] to prison.” Some time later, Victim was able to pull herself
up—only for Kirby to knock her to the ground and beat her
again. Victim again asked to leave, and Kirby again refused,
saying “he wasn’t going to go to prison for nothing.” After Kirby
finished beating Victim, she lay down on the bed nearest the
exterior door. Noting this, Kirby threatened to continue the
beating unless Victim moved away from the door. Victim
complied.

¶6 The following day, Kirby left the motel room to return a
recent purchase to a local retailer in order to procure money for
drugs. Although he left Victim alone in the motel room, he
ordered her to stay and suggested that he might be watching
even when he was not obviously present. Out of fear, Victim
stayed put.

¶7 Upon Kirby’s return, Victim—who “could hardly
move”—again requested permission to leave, promising that if
allowed to do so, she would not call the police. According to
Victim, “because [Kirby had] really fucked [her] up this time,”
Kirby was both sure Victim would call the police and that “he
would go to prison” if she did. Kirby therefore told her not to
leave. Nonetheless, Victim packed her suitcase as if to leave.

¶8 Kirby then grabbed the suitcase, unpacked it, and, when
Victim tried to retrieve it from him, resumed beating her. Kirby
beat Victim with both his fists and a knotted sock containing, at

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 State v. Kirby

various times, a telephone handset and a metal padlock. 3 As the
beating continued, Kirby attempted to kick Victim, but his foot
missed, and he dented the wall instead. He then began to stomp
on Victim before grabbing her around the neck, only stopping
after Victim ripped his shirt and grabbed his genitals. Victim
testified that after the beating was over, as she cried in pain,
Kirby told her, “Just fucking stop, because you are going to
make me lose my mind. Just let me gather my fucking thoughts
before you make me do something and I just fucking kill you.”

¶9 The next day—the final day of Victim’s ordeal—Kirby
told Victim that he would rape her daughter before killing
Victim, her daughter, her other children, their father, and finally
himself. Victim did not regard this as an idle threat, because she
was aware that Kirby knew where her children and their father
lived. Later, after allowing Victim to use his phone for a couple
of minutes, Kirby noticed that Victim deleted some text
messages she had sent to her daughter that day. He then picked
up a lamp, and Victim, fearing he intended to beat her with it,
fled.

¶10 Although it was dark and Victim was severely injured,
she made her way to a nearby bus stop. Kirby followed her and
attempted to coerce her back into the motel room, but Victim
refused to follow him. A man saw the dispute when he got off a
bus. The man called 911 after witnessing Kirby’s behavior
toward Victim and the look of terror he perceived on her face.

¶11 When officers arrived, Victim initially denied anything
was wrong. Once away from Kirby, however, she told an officer,
“He did all this to me,” and explained that Kirby held her

3. During the beating, Kirby dropped both the phone and the
padlock. Victim hid them in the motel room, and police later
found both items where Victim said they would be.

20140012-CA 4 2016 UT App 193
 State v. Kirby

against her will for three days. The officers then arrested Kirby,
who accused Victim of making false accusations.

¶12 When paramedics arrived to help Victim, they found that
she had extensive injuries, including a fractured left orbital bone,
a laceration on the back of her head accompanied by bruising
and swelling, open cuts above each eye, bruising and marks on
her neck consistent with strangulation, and extensive bruising
over much of the rest of her body and extremities.

¶13 During a search of the motel room, officers noted that it
appeared as though a fight had taken place in the room. They
also found physical evidence supporting Victim’s account,
including bloody towels piled in the bathroom, a pillow and
sheets with blood on them, a ripped sock with a knot in it, a
“hole” in one wall, and the padlock and telephone handset.

¶14 At trial, Kirby took the stand in his own defense.
Although he conceded having abused illegal drugs and other
intoxicating substances with Victim, his account differed
dramatically from hers in all other respects. Most notably, he
portrayed himself as a sort of caretaker for Victim, blamed most
of Victim’s injuries on her drug use and her own unsafe
behavior, and claimed Victim initiated the case against him in
retaliation for his romantic involvement with another woman.
Kirby also insisted that he would never hurt Victim. In rebuttal,
however, the State introduced social media messages between
Kirby and Victim’s daughter in which Kirby acknowledged that
sometimes Victim’s actions made him “so angry and hurt” that
he “would haul off and hit her.”

¶15 On the last scheduled day of trial, Kirby’s counsel
informed the trial court that he had a witness (Witness), Victim’s
most recent ex-boyfriend, who was out-of-state but who could
testify that Victim confessed that she had made the whole thing
up. The trial court decided not to allow any evidence from

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 State v. Kirby

Witness. The court did so because Witness’s testimony, as
outlined by defense counsel, was inadmissible hearsay. Because
Victim had not been questioned about her statements to
Witness during cross-examination, Witness’s proposed testimony
recounting what Victim allegedly told him could not come in as
a prior inconsistent statement by Victim. The court also learned
that Witness had cooperated with the State until he and Victim
ended their relationship, and only then did he cooperate with
the defense, making it unlikely that the jury would view his
testimony as credible. Further, the court concluded that it was
“too late” in the trial to introduce Witness’s testimony. Kirby’s
counsel moved for a mistrial, contending that the new testimony
might establish his client’s innocence. Although no explicit
ruling on the motion appears in the record, because no mistrial
was granted it can properly be assumed that the trial court
denied the motion.

¶16 The jury convicted Kirby of all three offenses with which
the State had charged him—aggravated kidnapping, aggravated
assault, and tampering with a witness. Kirby now appeals.

ANALYSIS

I. Kirby’s Counsel Did Not Provide Ineffective Assistance by
Failing To Move for a Directed Verdict.

¶17 Kirby challenges the sufficiency of the evidence for each
of the three charges against him. He acknowledges that this
claim was not preserved and urges that we review his argument
under the rubric of ineffective assistance of counsel, arguing that
it was ineffective assistance for defense counsel not to move for a
directed verdict on each charge. “Ineffective assistance . . . is an
exception to the preservation rule,” State v. Johnson, 2015 UT App
312, ¶ 15, 365 P.3d 730, which may be raised for the first time on
appeal, see State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867. But

20140012-CA 6 2016 UT App 193
 State v. Kirby

winning reversal on ineffective-assistance grounds is difficult
because “a defendant must prove both that counsel’s
performance was objectively deficient and that it resulted in
prejudice” and because “failure to prove either element defeats
the claim.” Johnson, 2015 UT App 312, ¶ 15 (citation and internal
quotation marks omitted).

¶18 Because “a finding that a defendant is guilty beyond a
reasonable doubt is necessarily a finding that any alternative
hypothesis of innocence presented at trial was not reasonable
under the jury’s view of the evidence,” State v. Cardona-Gueton,
2012 UT App 336, ¶ 12, 291 P.3d 847 (emphasis in original),
defendants appealing their convictions must do more than
simply re-characterize the State’s evidence as unreliable while
simultaneously restating the evidence they presented below in
the light most favorable to themselves. This is especially true
given that “[a]s long as there is some evidence from which all the
necessary elements of the charged offenses can be proved, there
is sufficient evidence to find the defendant guilty beyond a
reasonable doubt.” Johnson, 2015 UT App 312, ¶ 11 (emphasis
added). We conclude that the State introduced “some evidence”
as to each of the essential elements of each charge brought
against Kirby. See id.

A. There Was Sufficient Evidence To Convict Kirby of
Aggravated Kidnapping.

¶19 As to his aggravated kidnapping conviction, Kirby
appears to challenge only the sufficiency of the evidence to
prove that Victim was restrained or detained. 4 He proposes that

4. Even if Kirby had challenged the sufficiency of the evidence
relating to the factors that gave rise to the aggravated nature of
the kidnapping charge, we would still affirm because Victim’s
testimony established that Kirby “act[ed] with intent . . . [both]
(continued…)

20140012-CA 7 2016 UT App 193
 State v. Kirby

because Victim had opportunities to escape, of which she did not
avail herself, she was not unlawfully detained and that he
therefore cannot be found to have kidnapped her. This argument
is a red herring because once a person’s conduct meets the
statutory definition of “kidnapping,” see Utah Code Ann. § 76-5-
301(1)(a) (LexisNexis 2012) (“An actor commits kidnapping if the
actor intentionally or knowingly, . . . and against the will of the
victim . . . detains or restrains the victim for any substantial
period of time[.]”), even taking subsequent affirmative steps to
release the captive—which Kirby did not do—would not make
the person any less criminally liable for the completed
kidnapping that preceded the release. It has long been
recognized that a person cannot “unkidnap” another, any more
than one can “unmurder” or “unassault” someone. See William
Ellis, Where Must We Look for the Further Prevention of Crime? 18
(1857) (“[C]riminal acts once committed cannot be undone.”). In
other words, Kirby cannot benefit from the fact that he so
terrorized Victim that she declined to escape the motel room
after he demonstrated a willingness to severely beat her for
attempting to do so.

¶20 Victim testified that after Kirby beat her the first time, she
begged him to allow her to leave—but he refused. This was an
illegal detention. See State v. Couch, 635 P.2d 89, 93 (Utah 1981)
(noting that a person is illegally detained once “the detention
begins to be ‘against the will of the victim’”) (quoting Utah Code
Ann. § 76-5-301(1)(a)). An illegal detention becomes a kidnapping
once the victim is detained “for a ‘substantial period’”—

(…continued)
to hinder or delay the discovery of or reporting of a felony [and]
to inflict bodily injury on or to terrorize [Victim].” See Utah Code
Ann. § 76-5-302(1) (LexisNexis Supp. 2016). We will further
address both of these points as they arise in our subsequent
discussion of Kirby’s other two convictions. See infra ¶¶ 22–26.

20140012-CA 8 2016 UT App 193
 State v. Kirby

“substantial period” being a term of art that “can be defined only
by reference to [the] specific fact situation.” 5 Couch, 635 P.2d at 93.

¶21 After Victim lay down on a bed near the exterior door of
the motel room, Kirby ordered her to move to another bed.
Because Kirby had finished his initial assault of Victim by then,
this statement can reasonably be interpreted as indicating
Kirby’s desire to prolong the illegal detention of Victim beyond
what was inherent in the beating. The following day, Kirby left
the motel room—but not before instructing Victim not to leave.
Later, after Victim told him she was going to leave, he snatched
the suitcase out of her hands, dumped it, and then beat her some
more when she attempted to retrieve it. This demonstrated that
the illegal detention was ongoing—at that time for more than a
day. See id. Thus, regardless of whether Victim could have
escaped her kidnapper at some earlier point than she ultimately
did, the evidence of Kirby’s conduct was sufficient to support his
conviction for kidnapping.

B. There Was Sufficient Evidence To Convict Kirby of
Aggravated Assault.

¶22 Kirby further maintains that the evidence was insufficient
to prove he committed an aggravated assault against Victim
because (1) Victim’s “testimony was too unreliable to support
the State’s charges” and (2) Victim did not suffer “serious bodily
injury.” We disagree.

5. Although we hold that Kirby confined Victim for a substantial
period and thus committed a “kidnapping,” see infra ¶ 21, a
person may also be convicted of aggravated kidnapping if he or
she commits an “unlawful detention” accompanied by one or
more of the aggravating factors listed in Utah Code section 76-5-
302, see Utah Code Ann. § 76-5-302(1)(a)–(b) (LexisNexis Supp.
2016).

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 State v. Kirby

¶23 In State v. Robbins, 2009 UT 23, 210 P.3d 288, the Utah
Supreme Court noted that appellate courts generally “accept the
jury’s determination of witness credibility, [except] when the
witness’s testimony is inherently improbable.” Id. ¶ 16 (emphasis
added). In Robbins, the witness’s own account was internally
inconsistent and included impossible characterizations. Id.
¶¶ 21–23. But here the only inconsistencies in Victim’s testimony
to which Kirby has pointed are that at the preliminary hearing
Victim stated that Kirby did not kick her with his foot, but at
trial she testified that he did, and at the preliminary hearing
Victim said that Kirby dented the wall with his bare foot, but at
trial she testified that she was unsure whether his foot was bare
at the time. Even together, these discrepancies are not
determinative of Victim’s credibility and, indeed, could readily
be interpreted by the jury as resulting from the trauma she
experienced rather than as suggesting that she was not a credible
witness. Id. See also Lynn Abrams, Oral History Theory 94 (2d ed.
2016) (“Often the events being recalled [by trauma survivors] are
distant and difficult to express in words. We should expect such
testimony to contain some inaccuracies without compromising
the value of the testimony as a whole.”). And although Kirby
makes much of the fact that Victim ingested some drugs that he
did not, evidence of illegal drug abuse, without further proof
that the drugs used were likely to affect the witness’s memory or
perception of events, does not make a witness’s statement
“inherently improbable.” See State v. Hales, 2007 UT 14, ¶ 36, 152
P.3d 321 (citation and internal quotation marks omitted).

¶24 Furthermore, contrary to Kirby’s contention, it is clear
that Victim’s injuries were sufficiently severe to warrant the
aggravated assault conviction. See Utah Code Ann. § 76-5-
103(1)(a)(iii) (LexisNexis Supp. 2016). Given that two severely
blackened eyes, see State v. Anselmo, 558 P.2d 1325, 1327 (Utah
1977); a torn rotator cuff, see State v. Hale, 2006 UT App 434U,
para. 6; temporary unconsciousness, see State v. Bloomfield, 2003
UT App 3, ¶¶ 2–3, 18, 63 P.3d 110; and a broken jaw, see State v.

20140012-CA 10 2016 UT App 193
 State v. Kirby

Leleae, 1999 UT App 368, ¶ 20, 993 P.2d 232, each qualify as a
“serious bodily injury” under Utah law, then so does the
combination of deep bruising across Victim’s entire body, the
laceration to the back of her head accompanied by further
bruising and swelling, strangulation so severe as to leave
physical manifestations hours later, and a fractured orbital bone
causing continual migraines. See Utah Code Ann. § 76-1-601(11)
(LexisNexis 2012) (defining serious bodily injury 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
mere fact that Victim happened to be strong enough to fall into
bed after being beaten, strangled, and stomped upon and later,
after resting for a day, to limp from the motel room to a nearby
bus stop, does not transform a serious injury into a nonserious
one.

C. There Was Sufficient Evidence To Convict Kirby of
Tampering with a Witness.

¶25 Victim testified that Kirby repeatedly made statements to
the effect that he would not, or could not, allow her to leave,
because he would “go to prison” if she called the police, given
that “he [had] really fucked [her] up this time.” To support a
conviction of witness tampering, Utah Code section 76-8-508(1)
requires only that the person, “with the intent to prevent an
official proceeding or investigation, . . . attempt[ed] to induce or
otherwise cause another person to . . . withhold any testimony,
information, document, or item.” Id. § 76-8-508(1)(b) (emphasis
added). See also State v. Peterson, 2015 UT App 129, ¶ 12, 351 P.3d
812 (holding that “evidence was sufficient for the jury to infer
that [the defendant] threatened [the witness] with the intent to
prevent an official proceeding or investigation” after the
defendant promised to retaliate against the witness if she
revealed the defendant’s improper behavior). Considering
Kirby’s statements that Victim could not leave “because he [had]

20140012-CA 11 2016 UT App 193
 State v. Kirby

really fucked [her] up this time” and that he would “go to
prison” if Victim spoke to police, it is evident Kirby intended to
prevent just such “an official proceeding or investigation.” See id.

¶26 In sum, there was sufficient evidence against Kirby to
convict him of each offense of which he was convicted, so a
motion to dismiss for insufficient evidence would have been
futile. See State v. Johnson, 2015 UT App 312, ¶¶ 15–16, 365 P.3d
730 (concluding that defense counsel did not provide ineffective
assistance by not moving for dismissal based on insufficient
evidence where there was sufficient evidence to support
defendant’s conviction). “Because the failure to file a futile
motion is not an error,” we conclude that defense counsel did
not provide “objectively deficient” assistance to Kirby. See id.

II. The Trial Court Did Not Err in Refusing To Grant a
Continuance To Allow Kirby Time To Procure the Testimony of
Witness.

¶27 We assume, without deciding, that Kirby preserved his
argument on this issue even though he did not expressly request
a continuance. See Peterson, 2015 UT App 129, ¶ 2 n.1. Because
the trial court’s decision concerning the requested continuance
was legally correct, we affirm. 6 See id.

¶28 We begin (and end) our discussion with the following
premise: “When a defendant in a criminal action moves for a
continuance in order to procure the testimony of an absent
witness, such a defendant must show that the testimony sought
is material and admissible.” State v. Creviston, 646 P.2d 750, 752
(Utah 1982) (emphasis added). In other words, if the additional

6. In view of this conclusion, we have no occasion to address the
various other factors that the trial court mentioned in the course
of considering whether Kirby would be allowed to call Witness.

20140012-CA 12 2016 UT App 193
 State v. Kirby

evidence a party seeks to introduce is not admissible, whether
barred by the hearsay rule or on some other basis, then a
continuance to procure it is never warranted. Id.

¶29 Hearsay is any statement that (1) the declarant—the
“person who made the statement”—did “not make while
testifying at the current trial or hearing; and [that] (2) a party
offers in evidence to prove the truth of the matter asserted in the
statement.” Utah R. Evid. 801(b), (c)(1)–(2). Such a statement is
only admissible if the rules of evidence categorize it as “not
hearsay,” see id. R. 801(d), or if an explicit exception to the
hearsay rule allows for the introduction of the hearsay statement
at issue, see id. R. 802. 7 The exception urged by Defendant allows
for the introduction of a witness’s prior inconsistent statement,
but this exception requires that the declarant both “testifies and
is subject to cross-examination about [the] prior statement” before
the statement can be introduced. See id. R. 801(d)(1) (emphasis
added).

¶30 With the foregoing rules in mind, the issue effectively
resolves itself. Would Witness’s testimony about a statement
Victim purportedly made out of court have been hearsay? Yes.
See id. R. 801(c). Would it have been admissible hearsay? No.
Although Victim did testify, she was not cross-examined about
her alleged prior statement to Witness. See id. R. 801(d)(1). Thus,
given that Witness’s proposed testimony would have been
inadmissible under the prior inconsistent statement exception,
the trial court did not err in declining to permit Kirby to call

7. Although the Utah Rules of Evidence distinguish between
statements that are by definition “not hearsay” and statements
that come in under an exception to the hearsay rule, any
distinction between these two categories does not affect our
analysis. Thus, we simply use the term “exception” in our
discussion.

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 State v. Kirby

Witness or in granting Kirby a continuance so that he could do
so. See Creviston, 646 P.2d at 752.

CONCLUSION

¶31 Because there was sufficient evidence to convict Kirby of
all three charges brought against him, defense counsel’s failure
to move for a directed verdict was not objectively deficient
performance. Furthermore, whether or not Kirby preserved the
argument, the trial court properly declined to grant Kirby a
continuance because the evidence he sought to present was
inadmissible.

¶32 Affirmed.

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