State v. Wilkinson

2017 UT App 204

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TERRY LEE WILKINSON,
Appellant.

Opinion
No. 20140815-CA
Filed November 9, 2017

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 141902977

Ronald Fujino, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1 Defendant Terry Lee Wilkinson was convicted of
aggravated assault after charging at and hitting his victim with
an electric drill, which he swung from its power cord. He
appeals his conviction, arguing that the evidence against him
was insufficient to support the jury’s verdict and that his trial
counsel provided ineffective assistance. We affirm his
conviction.
 State v. Wilkinson

BACKGROUND 1

¶2 On the morning of March 15, 2014, the father (Victim) of
one of Defendant’s roommates parked his new car in front of
Defendant’s residence. Victim’s daughter, who had been living
with Defendant for a time, had asked Victim to help her move
because she “had to get out” of the house. Although Victim
suffered from chronic lower-back pain and could not easily walk
without the use of a cane, his new car was well-suited for the
task, and he agreed to help. Finding that his daughter was still
inside packing when he arrived, Victim entered the residence.

¶3 Upon stepping into the front room, Victim discovered
that “[t]here was a lot of ruckus going on.” Defendant “kept
trying to pick a fight” with Victim’s daughter, accusing her of
packing things that belonged to him. Twice Victim witnessed
Defendant “lay his hands on” his daughter: once, when
Defendant grabbed a pot from out of the daughter’s hand, and
then again when Defendant “pushed her” after “tussling over” a
box the daughter had removed from a closet. After demanding
that Defendant “keep his hands off [his] daughter,” Victim
urged her to “just quit, move on,” and “get out” of the house.

¶4 Once her belongings had finally been packed, Victim and
his daughter began moving boxes outside and loading them into
Victim’s vehicle. Defendant, however, did not relent; he insisted
that the two allow him to search through each box before
loading it into the car. Ignoring these demands, the daughter
loaded one of the boxes into the rear of the vehicle, sending
Defendant into a rage. Turning to Victim, he shouted that he
“was going to see what was in that box [even] if he had to tear
the car apart.” Victim responded, “You’re not touching my car.”

1. “On appeal from a criminal conviction, we recite the facts
from the record in the light most favorable to the jury’s verdict.”
State v. Pham, 2015 UT App 233, ¶ 2, 359 P.3d 1284.

20140815-CA 2 2017 UT App 204
 State v. Wilkinson

¶5 At this point Defendant came “flying at” Victim, and the
two began exchanging “colorful” language. Their voices grew
louder, and after a short time Victim sensed that Defendant was
on the verge of physical violence. Fearing for his safety, Victim
raised his cane over his shoulder to “stop [Defendant] in his
tracks.” Defendant then retreated into his house, “cussing and
fussing the whole” way.

¶6 Believing the matter settled, Victim put down his cane
and began rearranging boxes in the car. A few minutes passed,
and his daughter returned to the house to retrieve more boxes.
That is when Victim, who was still arranging boxes in his car,
heard a “thump, thump” sound coming from behind him.
Victim would later testify that “when [he] turned [his] head[, he]
caught [Defendant] out of the corner of [his] eye and he was
swinging this thing.” As Victim turned to face him, Defendant
bellowed, “Did you think I wasn’t going to come back?”

¶7 Initially perceiving the swinging object to be a boot,
Victim raised an arm to shield himself from what he believed
would likely be a painful but survivable blow. When the object
connected with his arm, however, he “quickly discovered it was
no boot.” Upon recognizing that Defendant was in fact swinging
an electric drill from its power cord, Victim began scrambling
backward, “do[ing] whatever [he] could to save his life.”

¶8 Running “sideways” so as to keep both eyes on the drill,
Victim lost his balance and fell to the ground. Defendant did not
let up. Even after Victim had curled into the fetal position,
Defendant continued swinging the drill at Defendant, forcing
Victim to roll frantically from side to side. At one point Victim
managed to get to his feet, only to fall again. Throughout the
attack, Defendant shouted, “I’m going to kill you!”

¶9 Finally, after nearly five minutes, Defendant relented. By
then Victim had sustained several minor injuries, including a

20140815-CA 3 2017 UT App 204
 State v. Wilkinson

gash on his arm caused by the “stub” of the drill bit. 2 Victim had
also cut his hand after falling on some gravel. As Defendant
made his way back to the house, Victim called 911. The
paramedics arrived soon after that, and they were accompanied
by four police officers, who placed Defendant under arrest.

¶10 Defendant was charged with third-degree-felony
aggravated assault, and the case proceeded to trial. After the
State rested, Defendant moved for a directed verdict, arguing
that the State failed to satisfy its evidentiary burden regarding
whether Defendant’s swinging drill qualified as a “dangerous
weapon” as the term is used in the applicable statute. See Utah
Code Ann. § 76-1-601(5)(a) (LexisNexis 2012). The district court
denied Defendant’s motion, concluding that on the evidence
presented the jury could reasonably find that the drill “could
[have] crack[ed] [Victim’s] skull.” Defendant then submitted a
proposed jury instruction to the court on a lesser included
offense of class B misdemeanor assault, which differed from the
State’s felony charge by omitting the aggravating “dangerous
weapon” element. The State took no exception to Defendant’s
proposed instruction.

¶11 At the close of evidence, the district court submitted
instructions to the jury, which included an instruction on the
aggravated assault charge as well as an instruction on class B
misdemeanor assault. The aggravated assault instruction read as
follows:

Before you can convict the defendant . . . of the
offense of Aggravated Assault[,] . . . you must
unanimously find from all of the evidence and

2. The sharp end of the bit had been blunted before coming into
contact with Victim’s arm—apparently because the drill had
smashed into the ground multiple times while Defendant was
rushing toward Victim from his front door.

20140815-CA 4 2017 UT App 204
 State v. Wilkinson

beyond a reasonable doubt each and every one of
the following elements . . . :

1. the defendant . . . ,

2. committed an assault, as defined in Utah
Code 76-5-102,[3] against [Victim],

3. used a dangerous weapon, and

4. acted intentionally, knowingly, or
recklessly.

This instruction was accompanied by an additional instruction
on the contents of section 76-5-102, as well as an instruction
defining the terms “intentionally,” “knowingly,” and
“recklessly.” The court’s misdemeanor assault instruction, in
turn, read this way:

Before you can convict [Defendant] . . . of the lesser
included . . . offense of [Assault,] you must find
from the evidence, beyond a reasonable doubt,
each of the following elements:

. . . . The defendant . . . either[:]

a. Attempted with unlawful force or
violence,

b. To do bodily injury to another; OR

3. See Utah Code Ann. § 76-5-102 (LexisNexis 2012). Section 76-5-
102 was amended on May 12, 2015. In this opinion we cite the
statute’s previous iteration, as that was the version in effect at
the time of Defendant’s conduct. See State v. Clark, 2011 UT 23,
¶¶ 13–14, 251 P.3d 829.

20140815-CA 5 2017 UT App 204
 State v. Wilkinson

c. Committed an act with unlawful
force or violence[,]

d. That caused bodily injury to another
or created a substantial risk of bodily
injury to another.

In addition, the court instructed the jury that “[a] person cannot
be found guilty of a criminal offense unless that person’s
conduct is prohibited by law, AND at the time the conduct
occurred, the defendant demonstrated a particular mental state
specified by law.”

¶12 Finally, the court instructed the jury on the definition of a
“dangerous weapon.” Quoting the language of the Utah Code,
the instruction explained that a “[d]angerous weapon means . . .
[a]ny item capable of causing death or serious bodily injury[.]”
See Utah Code Ann. § 76-1-601(5)(a). In a separate instruction,
the court further defined “serious bodily injury” and
distinguished it from mere “bodily injury.” “Serious bodily
injury,” it instructed, “means 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 court instructed that “bodily
injury,” on the other hand, “means physical pain, illness or an
impairment of physical condition.” In giving these instructions,
the court once again quoted the language of the applicable
statute. See id. § 76-1-601(3), (11).

¶13 The jury returned a guilty verdict on the charge of
aggravated assault, and Defendant was later sentenced to an
indeterminate prison term of zero to five years. Defendant
appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Defendant raises two primary issues on appeal. First, he
contends that the State produced insufficient evidence at trial to

20140815-CA 6 2017 UT App 204
 State v. Wilkinson

support the jury’s verdict. Ordinarily, when a defendant
challenges the jury’s verdict on insufficiency-of-the-evidence
grounds, “[w]e reverse only if . . . we conclude that the evidence
is insufficient to support the verdict” when “viewing the
evidence in the light most favorable to the prevailing party.”
Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77, ¶ 33, 31 P.3d
557 (citation and internal quotation marks omitted). But because
“claims not raised before the trial court may not be raised on
appeal,” an insufficiency of the evidence claim that was not
placed before the district court must fail on appeal unless “a
defendant can demonstrate that exceptional circumstances exist
or plain error occurred.” State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346 (citation and internal quotation marks omitted).

¶15 Second, Defendant contends that his trial counsel’s
performance was so deficient that he was deprived of his
constitutional right to the effective assistance of counsel. An
ineffective assistance of counsel claim, when raised for the first
time on appeal, presents a question of law. See State v. Heywood,
2015 UT App 191, ¶ 16, 357 P.3d 565.

ANALYSIS

I. Insufficiency of the Evidence

¶16 Defendant argues that the evidence presented at trial was
insufficient to support the verdict. Because Defendant failed to
preserve his claim, we reject it.

¶17 The rule that litigants may not raise a trial court’s claimed
error for the first time on appeal serves two important policies.
First, “in the interest of orderly procedure, the trial court ought
to be given an opportunity to address a claimed error and, if
appropriate, correct it.” State v. Eldredge, 773 P.2d 29, 36 (Utah
1989). “Second, a defendant should not be permitted to forego
making an objection . . . [to] enhance[e] . . . [the] chances of
acquittal and then, if that strategy fails,” ask the appellate court

20140815-CA 7 2017 UT App 204
 State v. Wilkinson

to reverse. State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (citation
and internal quotation marks omitted). To these ends, we have
consistently held that “the preservation rule applies to every
claim . . . unless a defendant can demonstrate that ‘exceptional
circumstances’ exist or ‘plain error’ occurred.” Id.

¶18 The whole of Defendant’s argument on his insufficiency
of the evidence claim is devoted to supporting his contention
that “[Victim’s] lay person testimony constituted an inadequate
basis to prove serious bodily injury.” But Defendant did not
raise this contention in his motion for a directed verdict, in any
post-trial motion, or in any other way. Because Defendant does
not suggest that an exception to the preservation rule applies, his
first claim of error fails regardless of its substantive merit. See
State v. Pledger, 896 P.2d 1226, 1229 n.5 (Utah 1995) (“Because
[the defendant] does not argue that ‘exceptional circumstances’
or ‘plain error’ justifies a review of the issue, we decline to
consider it on appeal.”).

II. Ineffective Assistance of Counsel

¶19 Defendant asserts that his trial counsel erred in three
ways. First, Defendant argues that competent counsel would
have objected to the district court’s “dangerous weapon”
instruction on the ground it was unconstitutionally vague.
Second, he contends that his trial counsel rendered ineffective
assistance “when he failed to request a lesser included class A
[misdemeanor] assault instruction.” Finally, Defendant
maintains that his counsel performed deficiently by failing to
object to the court’s instruction on class B misdemeanor assault,
as the instruction did not include a mens rea element. With
respect to each of these claimed errors, we conclude that
Defendant has failed to carry his burden on appeal.

¶20 “To prevail on an ineffective assistance of counsel claim, a
defendant must show (1) that counsel’s performance was so
deficient as to fall below an objective standard of reasonableness
and (2) that but for counsel’s deficient performance there is a

20140815-CA 8 2017 UT App 204
 State v. Wilkinson

reasonable probability that the outcome . . . would have been
different.” Myers v. State, 2004 UT 31, ¶ 20, 94 P.3d 211 (citation
and internal quotation marks omitted). See Strickland v.
Washington, 466 U.S. 668, 687 (1984). When applying this test, the
court must bear in mind “‘the strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.’” Myers, 2004 UT 31, ¶ 20 (quoting State v. Templin,
805 P.2d 182, 186 (Utah 1990)). Put another way, “‘the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.’”
Id. (quoting Templin, 805 P.2d at 186).

A. The “Dangerous Weapon” Instruction

¶21 We begin with Defendant’s contention that his trial
counsel performed deficiently by failing to object to the court’s
“dangerous weapon” instruction as being unconstitutionally
vague. “To satisfy due process, ‘a penal statute [must] define the
criminal offense [1] with sufficient definiteness that ordinary
people can understand what conduct is prohibited and [2] in a
manner that does not encourage arbitrary and discriminatory
enforcement.’” Skilling v. United States, 561 U.S. 358, 402–03
(2010) (brackets in original) (quoting Kolender v. Lawson, 461 U.S.
352, 357 (1983)). Defendant maintains that, given the definition
contained in the court’s instruction, ordinary jurors could not be
expected to distinguish a “dangerous weapon” from a “non-
dangerous weapon,” and therefore it was impossible for the jury
to determine whether Defendant’s swinging drill satisfied the
aggravating element that distinguishes felony from
misdemeanor assault. Thus, Defendant argues, the court’s
instruction was “void for vagueness,” and it was therefore
impossible for the jury to convict him of the aggravated charge
without depriving him of due process.

¶22 We note that the void-for-vagueness doctrine is typically
raised in a challenge to a “penal statute[],” not a jury instruction,
see id. at 402 (articulating the due process requirement that a
“penal statute” be sufficiently “definit[e]”), and it is unclear why

20140815-CA 9 2017 UT App 204
 State v. Wilkinson

Defendant has chosen to attack the court’s “dangerous weapon”
instruction rather than the statute that it quotes. Regardless,
whether aimed at the instruction or the statute, the argument
would have been unavailing in the district court, and thus
Defendant’s trial counsel did not perform deficiently by failing
to assert it. See State v. Bond, 2015 UT 88, ¶ 63, 361 P.3d 104
(“[T]he decision not to pursue a futile motion is almost always a
sound trial strategy.”) (citation and internal quotation marks
omitted).

¶23 Defendant maintains that the court’s instruction could not
have illuminated for the jury the difference between a
“dangerous weapon” and a “non-dangerous weapon” because,
at least in theory, “any and all items like pens or pencils are . . .
‘capable of causing’” serious bodily injury. Therefore, he argues,
“[t]he dangerous weapon definition improperly leaves no
distinction or limitation” between felony and misdemeanor
assault. Insofar as he is challenging section 76-1-601(5)(a) as
unconstitutionally vague, Defendant bears the burden of
demonstrating its unconstitutionality “beyond a reasonable
doubt.” State v. Krueger, 1999 UT App 54, ¶ 21, 975 P.2d 489.

¶24 For a statute to be unconstitutionally vague, it must be
“vague in all its applications.” Greenwood v. City of North Salt
Lake, 817 P.2d 816, 819 (Utah 1991). “A statute that is clear as
applied to a particular complainant cannot be considered
impermissibly vague in all of its applications and thus will
necessarily survive a facial vagueness challenge.” State v.
MacGuire, 2004 UT 4, ¶ 12, 84 P.3d 1171. Here, the district court
instructed the jury that a “dangerous weapon” is an item
“capable of causing . . . serious bodily injury.” It further
instructed that “serious bodily injury” is to be distinguished
from mere “bodily injury” in that it involves “protracted loss or
impairment of the function of any bodily member or organ,” not
simply “physical pain.” The jury then applied the court’s
instructions to facts involving, not hypothetical “pens or
pencils,” but an electric drill, which Defendant swung through
the air like a chain mace while charging at his victim. Given the

20140815-CA 10 2017 UT App 204
 State v. Wilkinson

obvious risks created by Defendant’s conduct, we have no
trouble concluding that an ordinary juror could reasonably find
that Defendant’s swinging drill fit squarely within the court’s
“dangerous weapon” definition. Accordingly, since Defendant’s
vagueness challenge fails as applied to the instant facts, his facial
challenge necessarily fails as well. See MacGuire, 2004 UT 4, ¶ 12.
See also State v. Yazzie, 2017 UT App 138, ¶ 13, 402 P.3d 165 (“An
item will be considered a dangerous weapon if, based upon its
actual use, subjectively intended use, or objectively understood
use, it can cause death or serious bodily injury.”) (citation and
internal quotation marks omitted).

B. The Second Lesser-Included-Offense Instruction

¶25 Defendant next contends that his trial counsel performed
deficiently by failing to request a second lesser-included-offense
instruction, specifically an instruction on class A misdemeanor
assault. Because Defendant has failed to demonstrate that his
trial counsel’s omission in this regard could not be considered
“sound trial strategy,” we conclude that he has not shown that
his counsel’s performance fell “below an objective standard of
reasonableness.” See Myers v. State, 2004 UT 31, ¶ 20, 94 P.3d 211.

¶26 By faulting his trial counsel for failing to request an
instruction on the intermediate degree of assault between the
State’s felony charge and class B misdemeanor assault,
Defendant apparently contends that an attorney for a criminal
defendant performs deficiently by failing to request every lesser
included offense available. Defendant cites no authority for this
rule, and our research has revealed none. Accordingly,
Defendant has failed to overcome the “strong presumption that
[his] counsel’s conduct falls within the wide range of reasonable
professional assistance.” See id.

¶27 Indeed, under the circumstances, Defendant’s trial
counsel probably made the right call. The Utah Code elevates a
misdemeanor assault from a class B to a class A misdemeanor if
the defendant “causes substantial bodily injury.” Utah Code

20140815-CA 11 2017 UT App 204
 State v. Wilkinson

Ann. § 76-5-102(3)(a) (LexisNexis 2012). Further, the Utah Code
defines “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.” Id. § 76-1-601(12). At trial, both parties
essentially conceded that Defendant inflicted only minor injuries
on Victim; the primary factual issue was whether Defendant’s
drill constituted a “dangerous weapon,” which has no bearing
on the question of whether Defendant’s assault amounts to a
class A or a class B misdemeanor. Thus, since the evidence was
consistent with only the less serious of the two misdemeanor
offenses, requesting an instruction on the more serious offense
would likely have had no effect other than to confuse the jury.

¶28 Moreover, we have previously held that where the
evidence is such that defense counsel believes the jury is likely to
convict the defendant of some crime, it may well be sound trial
strategy “to provide the jury with an alternative that would
work to [the defendant’s] advantage.” See State v. Binkerd, 2013
UT App 216, ¶ 32, 310 P.3d 755. Given the outrageous nature of
Defendant’s conduct, it is safe to assume that the jury was likely
to convict him of some crime, even if it ultimately concluded that
the evidence did not support third-degree-felony aggravated
assault. Under these circumstances, competent defense counsel
could reasonably conclude that Defendant’s best option was to
give the jury the opportunity to convict Defendant of the least
serious crime possible rather than offering a wider range of
lesser included offenses.

C. The Omitted Mens Rea Element

¶29 Finally, Defendant contends that his trial counsel was
ineffective for failing to object to the court’s instruction on the
lesser included offense of class B misdemeanor assault, which
failed to specify the mens rea element of the offense. Because the
instruction submitted to the jury was the very instruction
proposed by Defendant’s counsel when he requested that such

20140815-CA 12 2017 UT App 204
 State v. Wilkinson

an instruction be given, we assume that what Defendant intends
to argue on appeal is that his trial counsel performed deficiently
in proposing a flawed instruction to the court in the first
instance. Under different circumstances, this flaw might well
have merited reversal. Nevertheless, given that the jury
ultimately convicted Defendant of felony aggravated assault, not
misdemeanor assault, we are convinced that even if the mental
state were included in the lesser-included-offense instruction
there is no “reasonable probability that the outcome . . . would
have been different.” See Myers, 2004 UT 31, ¶ 20.

¶30 If the jury had convicted Defendant of misdemeanor
assault, without having been instructed on the applicable mens
rea, we agree that there would indeed be a problem with the
verdict. As Defendant correctly observes, “due process mandates
that the prosecution prove every element of the charged crime
beyond a reasonable doubt.” State v. Herrera, 895 P.2d 359, 368
(Utah 1995). Because the court’s instruction on misdemeanor
assault failed to include the mens rea element of the crime, it
would have been incapable of supporting a conviction.
Furthermore, the court’s separate instruction explaining that
every crime has both an actus reus and a mens rea element
would have been insufficient to remedy the error, as it did not
specify the particular mental state that the jury needed to find
before convicting Defendant of misdemeanor assault.

¶31 The fact remains, however, that Defendant was not
convicted of misdemeanor assault; he was convicted of third-
degree-felony aggravated assault. And the court’s instructions as
to that crime were proper. In addition to instructing the jury that
it must find that the swinging drill was a “dangerous weapon,”
the court’s aggravated assault instruction made clear that the
jury could not find Defendant guilty of that crime unless it also
found, beyond a reasonable doubt, that when swinging the drill
Defendant acted “intentionally, knowingly, or recklessly.” Since
the jury ultimately found Defendant guilty of aggravated

20140815-CA 13 2017 UT App 204
 State v. Wilkinson

assault, we are satisfied that it also found he acted 4 with one of
those three mental states. 5 We therefore conclude that trial

4. Defendant points out that, in addition to the problem of the
omitted mens rea element, the actus reus elements specified in
Defendant’s requested lesser-included-offense instruction were
slightly different from the actus reus elements specified in the
separate instruction given to the jury on the elements of assault,
which supplemented the instruction on the aggravated assault
charge. The court’s instruction on assault, which tracked the
language of section 76-5-102 of the Utah Code, provided that a
person can commit assault by making “a threat, accompanied by
a show of immediate force or violence, to do bodily injury to
another.” The instruction on the lesser included offense of class
B misdemeanor assault, on the other hand, did not include this
threat variant. Defendant fails to articulate how he was
prejudiced by this small discrepancy in the misdemeanor
instruction. Regardless, we conclude that he was not prejudiced
for the same reason that he was not prejudiced by the omitted
mental state: the jury ultimately convicted him of aggravated
assault, a felony, and any problems in the misdemeanor
instruction simply did not matter given that conviction.

5. Defendant further points out that the aggravated assault
instruction informed the jury that, in addition to finding he used
a “dangerous weapon,” the jury needed to find that he
committed the crime of simple assault before it could find him
guilty of aggravated assault. He then observes, correctly, that the
supplemental instruction on the elements of simple assault, like
its separate instruction on the lesser included offense of class B
misdemeanor assault, failed to specify the mens rea of the crime.
He therefore argues that because the aggravated assault
instruction incorporated by reference the contents of the separate
instruction on simple assault, the aggravated assault instruction
was flawed. But Defendant’s argument ignores the fact that the
aggravated assault instruction contained its own mens rea
(continued…)

20140815-CA 14 2017 UT App 204
 State v. Wilkinson

counsel’s failure to object to the faulty misdemeanor assault
instruction (or, more precisely, to have improvidently requested
the instruction) did not have an effect on the outcome of
Defendant’s trial and thus was not prejudicial.

CONCLUSION

¶32 For the foregoing reasons, we conclude that Defendant
has not preserved his challenge to the sufficiency of the evidence
supporting his conviction. We further conclude that Defendant’s
trial counsel did not provide ineffective assistance. We therefore
uphold Defendant’s conviction.

¶33 Affirmed.

(…continued)
provision and specified that Defendant could not have
committed aggravated assault without acting “intentionally,
knowingly, or recklessly.” Accordingly, we reject this argument.

20140815-CA 15 2017 UT App 204