IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100732‐CA
)
v. ) FILED
) (April 26, 2012)
Joshua Williams, )
) 2012 UT App 128
Defendant and Appellant. )
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Fourth District, Provo Department, 091403373
The Honorable Samuel D. McVey
Attorneys: Anthony V. Rippa, Murray; and Brook J. Sessions, South Jordan, for
Appellant
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee
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Before Judges Voros, Roth, and Christiansen.
CHRISTIANSEN, Judge:
¶1 Defendant Joshua Williams appeals his conviction for aggravated kidnapping, a
first degree felony. See Utah Code Ann. § 76‐5‐302 (2008). Williams argues that the trial
court abused its discretion in denying his motion for a new trial. We affirm.
¶2 Pursuant to rule 24 of the Utah Rules of Criminal Procedure, Williams moved for
a new trial on the theory that he was prejudiced by being jointly tried with a
codefendant. In particular, Williams contends that the codefendant’s counsel’s closing
argument unfairly placed blame on Williams, making him appear more culpable than if
he had been tried separately. Williams asserts that because he agreed with the
codefendant that neither defendant would testify at trial, Williams did not expect the
codefendant’s counsel to cast blame on Williams. Williams also seems to contend that,
despite being charged with the same offenses for the same alleged actions, the
codefendant’s conviction of only the lesser‐included offense of unlawful detention is
proof that Williams was prejudiced by the joint trial.
¶3 In ruling on Williams’s motion for a new trial, the trial court determined that the
jury found the victim’s testimony credible and that the victim’s testimony implicated
Williams more strongly than the codefendant. Further, the trial court determined that
Williams had been given an adequate opportunity to cross‐examine all of the witnesses
at trial. The trial court also noted that Williams elected not to testify after he had been
advised of his right to do so.
¶4 Williams did not timely move the trial court to sever his trial from the
codefendant’s and he therefore waived his right to do so. See Utah Code Ann. § 77‐8a‐
1(4)(b) (2008) (“A defendant’s right to severance of . . . defendants is waived if the
motion is not made at least five days before trial.”). In any event, we determine that the
trial court did not abuse its discretion in denying his motion for a new trial because the
joinder of the defendants’ trial did not prejudice Williams. See generally Utah R. Crim.
P. 24(a) (“The court may . . . grant a new trial in the interest of justice if there is any
error or impropriety which had a substantial adverse effect upon the rights of a party.”);
State v. Menzies, 845 P.2d 220, 224 (Utah 1992) (“The decision to grant a new trial
pursuant to Utah Rule of Criminal Procedure 24 is a matter within the discretion of the
trial court [, and] we will not reverse a ruling denying a new trial absent a clear abuse
of that discretion.” (internal quotation marks omitted)).
¶5 Although the codefendant’s counsel’s encouragement to the jury to find that
Williams was more culpable than his client may have impacted the jury, Williams has
not shown that the trial court abused its discretion in denying his motion for a new trial
because he has not demonstrated that the joint jury trial prejudiced him. Specifically,
evidence produced at trial demonstrated that the victim owed Williams money, that
Williams owned and drove the car used in the kidnapping, and that Williams and the
codefendant took the victim to Williams’s home. Williams has identified no evidence
that would have been excluded had the defendants been tried separately, nor has he
identified any argument made by the codefendant’s counsel that could not have been
made by the State had the defendants been tried separately. Also, the codefendant’s
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conviction of a lesser offense does not demonstrate that a jury would have found
Williams any less culpable had he been tried separately.
¶6 Moreover, Williams has not shown that the trial court abused its discretion in
denying his motion for a new trial because, even under Utah Code section 77‐8a‐1 and
the case law interpreting that statute, Williams has not demonstrated that he would
have received a better outcome if he had been tried separately. See Utah Code Ann.
§ 77‐8a‐1(4)(a) (“If the court finds [that] a defendant . . . is prejudiced by a joinder of . . .
defendants in an indictment or information or by a joinder for trial together, the court
shall . . . grant a severance of defendants, or provide other relief as justice requires.”);
State v. O’Brien, 721 P.2d 896, 898 (Utah 1986) (instructing a trial court to “grant
severance when there is any doubt as to prejudice”); State v. Telford, 940 P.2d 522, 525‐26
(Utah Ct. App. 1997) (same). Prejudice occurs where “joint defendants have defenses
that [are] inconsistent with or . . . obstruct or impede each other.” O’Brien, 721 P.2d at
898; accord Telford, 940 P.2d at 525‐26. “Antagonistic defenses alone are not sufficient to
require a separate trial. Rather, severance is required only if the defenses conflict to the
point of being irreconcilable and mutually exclusive.” Telford, 940 P.2d at 526 (citation
and internal quotation marks omitted). Thus, “hostility between co‐defendants or the
fact that one defendant attempts to cast blame on his co‐defendant is not alone sufficient
reason to require severance of the co‐defendants’ trials.” OʹBrien, 721 P.2d at 899.
¶7 Even though the codefendant’s counsel cast blame on Williams for the
aggravated kidnapping, Williams’s and the codefendant’s defenses were not
antagonistic to “the point of being irreconcilable and mutually exclusive.” See Telford,
940 P.2d at 526 (internal quotation marks omitted). Williams’s counsel and the
codefendent’s counsel used the same strategic approach and cooperated with each other
to the point of even agreeing to not have either defendant testify against the other. Both
defenses, including the codefendant’s counsel’s closing argument, focused on proving
that the victim’s testimony was not believable and that the victim’s actions were
voluntary. The jury did not have to reject Williams’s defense to believe the
codefendant’s defense, and vice versa. See id. (concluding that the trial court erred by
failing to sever the trial for defendants because “the defenses were mutually exclusive,”
that is, “the jury had to reject one defense to believe the other”). We thus conclude that
the trial court did not abuse its discretion in denying Williams’s motion for a new trial.
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¶8 Because we determine that Williams was not prejudiced by the joint trial, we
need not reach Williams’s ineffective assistance of counsel claim for his counsel’s failure
to move the court for a severance of trial. See Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267
P.3d 232 (“To prevail [on an ineffective assistance of counsel claim], a defendant must
show, first, that his counsel rendered a deficient performance in some demonstrable
manner, which performance fell below an objective standard of reasonable professional
judgment and, second, that counsel’s performance prejudiced the defendant.” (internal
quotation marks omitted)). Even if Williams’s trial counsel was ineffective in not
seeking to sever the trial of Williams and the codefendant, Williams has not shown that
the joint jury trial prejudiced him.
¶9 Accordingly, we affirm.
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Michele M. Christiansen, Judge
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¶10 WE CONCUR:
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J. Frederic Voros Jr.,
Associate Presiding Judge
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Stephen L. Roth, Judge
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