State v. Peterson

2020 UT App 47
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
TIMOTHY JAMES PETERSON ,
Appellant.
Opinion
No. 20180550-CA
Filed March 26, 2020
Third District Court, West Jordan Department
The Honorable Katie Bernards-Goodman
No. 171403640
Emily Adams, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and K ATE A PPLEBY concurred.
MORTENSEN, Judge:
¶1 	Timothy James Peterson was convicted of aggravated
kidnapping, aggravated assault, and failure to stop at a law
enforcement officer’s command after he repeatedly struck his
wife throughout an hours-long car ride, prevented her from
escaping, 	and 	fled 	when 	an 	officer 	intervened. 	Peterson
challenges his conviction for aggravated kidnapping with a
claim of insufficient evidence and his conviction for aggravated
assault with a claim of ineffective assistance of counsel. We
affirm both convictions.

State v. Peterson
20180550-CA 	2 	2020 UT App 47
BACKGROUND
¶2 	In September 2017, Peterson and his wife (Wife) were
separated but remained married. One evening, in hopes of
reconciling, Wife accompanied Peterson to a recording studio in
Salt Lake City. Both Peterson and Wife drank alcohol at the
studio, 	even 	though 	Wife 	was 	on 	probation 	and 	was 	not
permitted to imbibe. Between 8:00 p.m. and 9:00 p.m., Peterson
became angry with Wife and told her to get in his car, which she
willingly did. As Peterson drove away, he struck Wife in the
head multiple times. The car slowed as it reached an overpass
and Wife exited the car and attempted to walk away. Peterson
pulled the car next to her and “convinced” her to get back in the
car by threatening her, telling her to “get back in the car before
this becomes a scene,” and “physically pushing [her] back into
the car.” Wife testified that she was frantic and that a couple
thoughts occurred to her: she wanted to avoid law enforcement
because she had been drinking, and she knew that she “couldn’t
run or [Peterson would] probably still try to get [her] back in the
car.” Wife testified that Peterson “forced [her] back into the car.”
¶3 	Peterson resumed driving and hitting Wife. Wife told
Peterson to stop hitting her, pleaded with him to stop hitting
her, and even offered to have sex with him if he would stop
hitting her. At one point, while Peterson drove on the freeway at
75 miles per hour, Wife, in her drunken desperation, attempted
to throw herself from the car to escape. Peterson grabbed her by
the neck and arm to hold her in the car. Peterson forced Wife to
stay in the car for hours and endure the beatings until they
arrived at a park in Bluffdale at around 3:00 a.m. Wife was in
and out of consciousness during the ordeal. On arriving at the
park, Peterson “pulled [Wife] out of the car,” forced her over to a
water fountain, and told her to “clean [her]self up.”
¶4 	Later, an officer noticed Peterson’s vehicle at the park.
The officer saw Peterson just inside the car at the rear passenger-
side door, punching something in the back seat. The officer

State v. Peterson
20180550-CA 	3 	2020 UT App 47
called to Peterson, who glanced back at the officer and then
returned his attention to the back seat of the car. The officer
again called out to Peterson, instructing Peterson to turn and
face 	him. 	As 	Peterson 	turned 	to 	look 	at 	the 	officer, 	Wife
scrambled out of the rear driver-side door of the car, “stumbling
and screaming for [the officer] to save her.” Wife ran to the
officer’s vehicle and attempted to get in, all the while crying,
“Help me; save me.” Peterson began walking to the front of his
car. The officer commanded Peterson, “Don’t move; don’t go.”
Peterson then fled on foot from the officer. The officer attempted
to pursue Peterson but lost sight of him. The officer returned
to 	the 	vehicles 	to 	tend 	to 	Wife 	and 	observed 	she 	was
“disfigured. . . . Her head was misshapen,” she was covered in
both dried and fresh blood, “she was bleeding from her nose, her
eyes, her ears. . . . Her clothing was saturated in blood . . .
everything was just covered in blood.”
¶5 	Wife was taken to the emergency room and treated for
her injuries. The emergency-room physician found that twelve of
Wife’s teeth were shattered, that she sustained fractures to her
nasal bone, that she had a splayed lip, and that she suffered a
concussion. Wife later reported also having a shattered bone
behind one ear, with 85% hearing loss in that ear, as well as two
black eyes, a fractured skull, five broken ribs, a lot of bruising,
scratch marks, and persistent vision problems.
¶6 	Peterson was arrested a few days after the incident and
charged 	with 	one 	count 	each 	of 	the 	following 	offenses:
Aggravated 	Kidnapping—Domestic 	Violence 	related;
Aggravated Assault Serious Bodily Injury—Domestic Violence
related; Mayhem; and Failure to Stop at the Command of a Law
Enforcement Officer. At trial, after the State rested, Peterson
moved for a directed verdict on the aggravated kidnapping
charge, arguing that Wife was willingly in the car. The court
denied 	the 	motion. 	The 	jury 	convicted 	Peterson 	on 	the
aggravated kidnapping, aggravated assault, and failure to stop
charges.

State v. Peterson
20180550-CA 	4 	2020 UT App 47
¶7 	After 	trial, 	Peterson 	moved 	to 	merge the aggravated
kidnapping charge into the aggravated assault charge under the
then-available common-law merger doctrine. The court denied
the motion and sentenced Peterson to concurrent terms of fifteen
years to life for the aggravated kidnapping, one to fifteen years
for the aggravated assault,1 and up to one year on the failure to
stop conviction. Peterson appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 	Peterson raises two issues on appeal.2 First, Peterson
contends that the trial court erred in denying his motion for a
1. 	The 	Sentence, 	Judgment, 	Commitment 	identifies 	the
aggravated assault offense as “Aggravated Assault Targeting
Law Enforcement W/ Bodily Injury.” On appeal, Peterson asks
this court to remedy the discrepancy as an illegal sentence under
rule 22(e) of the Utah Rules of Criminal Procedure. The State
concedes the error, but argues that it should be remedied under
rule 30 of the Utah Rules of Criminal Procedure. After reviewing
the record, we note that the error is only in the description of the
offense in the Sentence, Judgment, Commitment. “[A]n error
made in recording the judgment is clerical,” and the appropriate
remedy is rule 30(b). State v. Watring, 2017 UT App 100, ¶ 13, 400
P.3d 1148; see also Utah R. Crim. P. 30(b). We encourage Peterson
to make the appropriate motion to the trial court, which is able
to remedy the error at any time. See State v. Cady, 2018 UT App 8,
¶ 41 n.9, 414 P.3d 974.
2. Peterson also filed a rule 23B motion under the Utah Rules of
Appellate Procedure for a remand to supplement the record to
pursue a claim of ineffective assistance of counsel regarding an
alleged failure by trial counsel to move to disqualify the entire
Salt 	Lake 	County 	District 	Attorney’s 	Office 	for 	an 	alleged
conflict of interest by a single prosecutor. Peterson claims that a
(continued…)

State v. Peterson
20180550-CA 	5 	2020 UT App 47
directed 	verdict, 	arguing 	there 	was 	insufficient 	evidence 	to
support the aggravated kidnapping charge. “We will uphold a
trial court’s denial of a motion for directed verdict based on a
claim of insufficiency of the evidence if, when viewed in the
light most favorable to the State, some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” State v. Gonzalez,
2015 UT 10, ¶ 27, 345 P.3d 1168 (cleaned up).
¶9 	Second, Peterson argues that his trial counsel provided
constitutionally ineffective assistance with regard to the motion
to merge the aggravated kidnapping and aggravated assault
offenses. “An ineffective assistance of counsel claim raised for
(…continued)
conflict existed because a federal civil rights lawsuit he filed
against Salt Lake County—stemming from a separate criminal
case—was pending at the time of his prosecution in this case,
and because one prosecutor participated in both criminal cases.
“A 	remand 	under 	rule 	23B 	will 	only 	be 	granted 	upon 	a
nonspeculative allegation of facts . . . which, if true, could
support a determination that counsel was ineffective.” State v.
Bowen, 2019 UT App 163, ¶ 21 n.9, 451 P.3d 1050 (cleaned up); see
Utah R. App. P. 23B(a). Peterson does not offer the necessary
facts 	to 	support 	his 	speculative 	allegation 	that 	a 	conflict
existed—his basis for asserting trial counsel was ineffective. See
Bowen, 2019 UT App 163, ¶ 21 n.9. The federal court complaint
contains no claim against the prosecutor, nor any allegation
critical of the actions of the prosecutor, which may have given
rise to a conflict of interest concerning Peterson or the charges of
this case. See State v. Balfour, 2008 UT App 410, ¶ 33, 198 P.3d 471
(“Utah courts have found disqualification proper whenever the
prosecutor has a conflict of interest with the charges or the
defendant.”). We therefore deny Peterson’s motion because it
fails to assert a nonspeculative allegation of facts concerning the
existence of a conflict.

State v. Peterson
20180550-CA 	6 	2020 UT App 47
the first time on appeal presents a question of law,” which we
review for correctness. State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344
(cleaned up).
ANALYSIS
I. Insufficient Evidence
¶10 	Peterson 	challenges 	his 	conviction 	for 	aggravated
kidnapping, arguing that there was insufficient evidence to
prove the element that requires the detention or restraint be
against the will of the victim. See Utah Code Ann. § 76-5-302(1)
(LexisNexis Supp. 2019) (aggravated kidnapping requires either
unlawful detention or kidnapping); see also id. § 76-5-304(1)
(unlawful detention requires action against will of victim); id.
§ 76-5-301(1) 	(2017) 	(kidnapping 	requires 	same).3 	Peterson
therefore must “show that, when viewed in the light most
favorable 	to 	the 	State, 	no 	evidence 	existed 	from 	which 	a
reasonable jury could find beyond a reasonable doubt” that
Wife’s detention or restraint was against her will. See State v.
Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d 1168; see also Utah Code
Ann. 	§§ 76-5-301(1), 	-304(1). 	Peterson 	does 	not 	satisfy 	this
burden.
¶11 	An unlawful detention or kidnapping begins the instant a
defendant detains or restrains a victim “against the will of the
victim.” State v. Couch, 635 P.2d 89, 93 (Utah 1981). Evidence that
a detention or restraint is against the will of a victim may derive
from verbal expressions of disapproval or actions taken to resist
the detention or restraint. See id. (holding detention was against
will 	of 	victim 	because 	victim 	verbally 	expressed 	desire 	for
3. The statutory provisions in effect at the relevant time do not
differ 	in 	any 	way 	material 	to 	this 	case 	from 	the 	current
provisions. 	We 	therefore 	cite 	the 	current 	Utah 	Code 	for
convenience.

State v. Peterson
20180550-CA 	7 	2020 UT App 47
defendant to stop the car); see also State v. Kirby, 2016 UT App
193, ¶¶ 19–21, 382 P.3d 644 (observing victim was unlawfully
detained based, in part, on her attempt to retrieve her suitcase
and leave). Additionally, the facts and circumstances particular
to a detention or restraint may provide evidence of a victim’s
state of mind. See Kirby, 2016 UT App 193, ¶ 19 (observing that
despite 	the 	victim’s 	unavailed 	opportunities 	to 	escape, 	the
unlawful detention was ongoing because defendant instructed
her not to leave and had previously beaten her for attempting to
leave).
¶12 	Peterson contends that there was insufficient evidence to
support the aggravated kidnapping charge. He asserts that Wife
willingly got into his car at the studio, that Wife willingly re-
entered the car at the overpass, that he was just keeping Wife
safe when he acted to prevent her from jumping from his car on
the freeway, and that he merely “asked” Wife to clean herself up
at the water fountain. Peterson’s characterization of the events is
unavailing.
¶13 	First, there is evidence that Wife was detained against her
will when she was forced to re-enter the car at the overpass.
Wife manifested her desire to be free from Peterson’s detention
in the car by exiting the slow-moving car as it approached the
overpass. Peterson had to physically push and threaten her to
get 	her 	to 	re-enter 	the 	car. 	Although 	it 	is 	true 	that 	Wife
re-entered the car, at least partially, by operation of her own
motor function, she did not do so willingly. Peterson previously
hit Wife and alluded to the trouble she would face if they
encountered law enforcement while she had alcohol in her
system. Wife was given the ultimatums of being beaten until she
complied, causing a scene and being arrested, or complying by
returning to the car. Wife’s choice among Peterson’s ultimatums
does not make her a willing participant in the decision. Peterson
could have allowed Wife to walk away; he did not do so, and her
forced decision that followed does not indicate that she re-
entered 	the 	car 	volitionally. 	Based 	on 	the 	facts 	and

State v. Peterson
20180550-CA 	8 	2020 UT App 47
circumstances, a reasonable jury could find that the State proved
beyond a reasonable doubt that Wife re-entered the car, not of
her own volition, but out of fear of being beaten or fear of being
exposed to law enforcement.
¶14 	Second, there is evidence that Wife was restrained against
her will when she tried to jump out of the car while traveling on
the freeway. Regardless of the prudence of Wife’s decision to
attempt to leap from the car, Wife’s conduct manifested her
desire to be free of Peterson’s restraint in the car and the
accompanying physical abuse. Peterson’s claim that his actions
to restrain her were motivated by his desire to save her from
injury 	is 	belied 	by 	the 	beatings 	he 	administered 	to 	her
throughout the car ride—despite her desperate demands, pleas,
and offers to get him to stop—and the fact that he could have
pulled over and let her out at any time. Based on either Wife’s
verbal resistance or her physical attempt to escape, a reasonable
jury could find that the State proved beyond a reasonable doubt
that Wife was restrained against her will by Peterson during the
drive.
¶15 	Third, 	evidence 	exists 	that 	Wife 	was 	detained 	or
restrained 	against 	her 	will 	when 	she 	was 	forced 	to 	the
drinking fountain and then back into the car. On arriving at the
park, Peterson physically pulled Wife out of the car and forced
her to a water fountain to clean herself off. When the officer
arrived, Wife was back in the car being punched by Peterson. On
seeing the officer’s vehicle, Wife escaped from Peterson and
cried out for the officer to intervene. Based on the foregoing
facts, a jury could find that the State proved beyond a reasonable
doubt that Wife was detained or restrained against her will by
Peterson as he forced her to the water fountain and back into the
car.
¶16 	Viewing 	the 	facts in 	the 	light 	most 	favorable 	to the
State, we hold that a reasonable jury could find that the State
proved beyond a reasonable doubt that Wife was detained or

State v. Peterson
20180550-CA 	9 	2020 UT App 47
restrained 	against 	her 	will 	by 	Peterson 	at 	multiple 	points
throughout 	the 	hours-long 	ordeal. 	Because 	at 	least 	some
evidence exists—in this case, plenty—from which a reasonable
jury could find that the disputed element of the aggravated
kidnapping charge was proven beyond a reasonable doubt,
we uphold the trial court’s denial of the motion for directed
verdict.
II. Ineffective Assistance of Counsel
¶17 	Peterson’s trial counsel made a motion to merge the
aggravated kidnapping conviction into the aggravated assault
conviction under the then-available common-law doctrine, but
counsel did not include an argument that the aggravated assault
conviction 	should 	merge 	into 	the 	aggravated 	kidnapping
conviction 	under 	the 	merger 	statute. 	See 	Utah 	Code 	Ann.
§ 76-1-402 (LexisNexis 2017). Peterson asserts that absence of the
latter argument was constitutionally ineffective assistance of
counsel. We disagree.
¶18 	To prevail on an ineffective assistance of counsel claim, a
defendant must establish both that counsel’s performance was
objectively deficient—meaning counsel rendered demonstrably
deficient performance by objectively unreasonable conduct—and
that the deficient performance prejudiced the defense—meaning
there is a reasonable probability that, but for counsel’s error, the
defendant would have obtained a more favorable outcome. See
Strickland v. Washington, 466 U.S. 668, 687–88 (1984); see also State
v. Scott, 2020 UT 13, ¶¶ 34–36; State v. Popp, 2019 UT App 173,
¶¶ 25–26, 453 P.3d 657. “A failure to prove either element
defeats the claim.” State v. Ricks, 2018 UT App 183, ¶ 11, 436 P.3d
350 	(cleaned 	up). 	Importantly, 	counsel 	is 	not 	deficient 	for
declining to make a motion, objection, or request that is futile.
E.g., State v. Farnworth, 2018 UT App 23, ¶ 53, 414 P.3d 1053
(holding trial counsel was not deficient for declining to move for
merger because offenses were not based on same facts and
motion would have been futile).

State v. Peterson
20180550-CA 	10 	2020 UT App 47
¶19 	At the time of the merger motion, Utah recognized a
common-law 	merger 	doctrine4—referred 	to 	as 	the 	Finlayson
test—as well as statutory merger under Utah Code section
76-1-402. 	The 	Finlayson 	test 	was 	known 	as 	an 	unwieldy,
unpredictable test—attributes which, in part, led to its demise.
State v. Wilder, 2018 UT 17, ¶¶ 27, 29, 38, 420 P.3d 1064. But the
test enabled defendants convicted of kidnapping to avoid an
additional 	conviction 	because 	a 	prosecutor 	had 	to 	show 	a
kidnapping victim’s confinement was not inconsequential and
not 	inherent 	in 	the 	other 	offense, 	but 	had 	independent
significance 	and 	“was 	longer 	than 	the 	necessary 	detention
involved in the commission of the [other offense].” State v.
Finlayson, 2000 UT 10, ¶ 19, 994 P.2d 1243, overruled by Wilder,
2018 UT 17.
¶20 	By contrast, the merger statute dictated that
when the same act of a defendant under a single
criminal 	episode 	shall 	establish 	offenses 	which
may be punished in different ways under different
provisions of this code, the act shall be punishable
under only one such provision . . . .
. . . .
A 	defendant 	may 	be 	convicted 	of 	an 	offense
included in the offense charged but may not be
convicted of both the offense charged and the
included offense.
Utah Code Ann. § 76-1-402(1), (3). Thus, the statute precluded
merger of offenses if the offenses were based on separate acts—a
more bright-line test. E.g., State v. Garrido, 2013 UT App 245,
¶ 31, 314 P.3d 1014 (“Even if there is overlap in the statutory
4. The common-law merger test was renounced in State v. Wilder,
2018 UT 17, 420 P.3d 1064.

State v. Peterson
20180550-CA 	11 	2020 UT App 47
elements, if the convictions rely on materially different acts, then
one crime will not be a lesser included offense of another.”
(cleaned up)). At the time of the motion, case law clearly dictated
“that 	aggravated 	assault 	does 	not 	merge 	with 	aggravated
kidnapping” 	when 	the 	“convictions 	can 	be 	supported 	by
materially different acts.” Id. ¶¶ 33, 35 (cleaned up). Reasonable
trial counsel would have been aware of the existing case law and
would have recognized that, based on the evidence of this case, a
court would conclude that materially different acts formed the
bases of the convictions and that a motion for merger under the
statute would fail.
¶21 	To discern whether materially different acts support each
conviction, we consider a defendant’s conduct in isolation to
determine whether distinct acts gave rise to each offense. See
Farnworth, 	2018 	UT 	App 	23, 	¶¶ 	50–53 	(considering 	acts 	in
isolation). In making this evaluation, we view the evidence in the
light most favorable to the jury’s verdict. Garrido, 2013 UT App
245, ¶ 31.
¶22 	As is relevant in this case, a conviction for aggravated
assault requires proof of an act of unlawful force or violence,
which is likely to produce death or serious bodily injury, and
which actually results in serious bodily injury. Utah Code Ann.
§ 76-5-103 (Supp. 2019). Aggravated kidnapping requires proof
of an act with intent to inflict bodily injury on a victim and
which 	actually 	causes 	serious 	bodily 	injury 	during 	the
commission of unlawful detention or kidnapping. Id. § 76-5-302.
As discussed, both unlawful detention and kidnapping require
an act of detaining or restraining a victim against her will;
kidnapping additionally requires the act be for a substantial
period 	or 	expose 	the 	victim 	to 	risk 	of 	bodily 	injury. 	Id.
§§ 76-5-301, -304. We previously identified three distinct times
when Wife was detained or restrained against her will. See supra
¶¶ 13–15. A jury could conclude that the intervening periods
were also against Wife’s will and constituted substantial periods
of time or were circumstances that exposed her to the risk of

State v. Peterson
20180550-CA 	12 	2020 UT App 47
bodily injury. In other words, the commission of the predicate
offense 	supporting 	the 	aggravated 	kidnapping 	conviction
extended from Wife’s forced re-entry into the car at the overpass
to the officer’s intervention at the park. The issue becomes
whether Peterson acted with intent to and did cause Wife serious
bodily injury during that period (supporting a conviction for
aggravated 	kidnapping); 	and 	independent 	of 	that 	action,
whether Peterson acted with unlawful force or violence that was
likely to produce death or serious bodily injury, and which
actually resulted in serious bodily injury, regardless of whether
it was during that period or not (supporting a conviction of
aggravated assault).
¶23 	Importantly, serious bodily injury is 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.” Utah
Code Ann. § 76-1-601(15). We do not need to identify whether
the jury could with particularity determine which of Peterson’s
strikes caused Wife serious bodily injury. See State v. Yazzie, 2017
UT App 138, ¶ 25, 402 P.3d 165 (“Because the force behind each
blow differs, a jury . . . may infer from other evidence how much
force a defendant actually used and whether that force was
likely to cause serious bodily injury under the particular facts of
the case.” (cleaned up)); State v. Walker, 2017 UT App 2, ¶ 26, 391
P.3d 	380 	(serious 	bodily 	injury 	determination 	is 	based 	on
particular facts of a case). Rather, we need only identify whether
evidence of materially different acts exists to support a jury’s
conclusion that Peterson was separately guilty of both offenses.
See Garrido, 2013 UT App 245, ¶¶ 32–34 (observing the jury had
evidence to support multiple variants of each crime, and distinct
occasions within the episode permitted a finding of materially
different acts).
¶24 	In State v. Garrido we considered a defendant’s argument
for 	merger 	of 	his 	aggravated 	assault 	conviction 	into 	his
aggravated kidnapping or aggravated burglary convictions. 2013

State v. Peterson
20180550-CA 	13 	2020 UT App 47
UT App 245, ¶ 30. The defendant in that case had unlawfully
entered the victim’s home with a stolen key, remained there
armed with a knife, threatened to kill the victim, and held the
victim there against her will. Id. ¶ 33. Although the events all
transpired as part of a single episode, we determined merger
was not appropriate because the convictions relied on materially
different 	acts. 	Id. 	In 	doing 	so, 	we 	analyzed 	the 	actions
undertaken by the defendant throughout the extended detention
to discern at least three distinct occasions when the knife was
used: unlawfully remaining in the home while possessing the
knife, threatening to kill the victim while possessing the knife,
and using the knife to hold victim against her will. Id. Because
we 	could 	identify 	materially 	different 	acts, 	we 	upheld 	the
separate convictions. Id.
¶25 	Similarly, in State v. Farnworth we concluded merger of
the defendant’s reckless driving offense with the aggravated
assault offense was not appropriate. 2018 UT App 23, ¶ 52.
Farnworth, 	while 	driving, 	had 	intentionally 	swerved 	at 	a
motorcycle 	three 	times, 	forcing 	the 	motorcyclist 	and 	his
passenger into oncoming traffic and ultimately causing them to
crash. Id. We observed the first two swerves went toward the
reckless driving offense and the third supported the aggravated
assault offense. Id. ¶ 53. We therefore held that the convictions
were not based on the same facts and would not merge. Id.
¶26 	Here, we are able to identify two materially different acts
to support the two separate convictions based on an intervening
occurrence; a point in the ordeal that would enable the jury to
delineate 	the 	abusive 	conduct 	into 	two 	distinct 	acts, 	each
resulting in serious bodily injury to Wife. First, a jury could
reasonably find, based on the evidence of the case, that Peterson
committed aggravated kidnapping before Wife was forced to
clean herself off at the water fountain in the park. As we have
recounted, 	Peterson 	repeatedly 	and 	intentionally 	beat 	Wife
during the car ride while she was detained against her will. Up
to the point when Wife was forced to clean herself off at the

State v. Peterson
20180550-CA 	14 	2020 UT App 47
water fountain, Peterson had beaten her so severely that when
she put her face in her hands, “there were chunks of teeth and
blood.” A jury, looking to the means and manner of injury, along
with the attendant circumstances, could reasonably conclude
that Peterson’s acts up to that point caused Wife serious bodily
injury. See Walker, 2017 UT App 2, ¶ 26.
¶27 	Second, 	a 	jury 	could 	reasonably 	find 	that 	Peterson
committed aggravated assault after Wife was forced to clean
herself off at the drinking fountain. When the officer arrived at
the park, he observed Peterson punching something in the back
seat. Thereafter, Wife emerged from the back seat, crying for
help. The officer observed that Wife was “disfigured. . . . Her
head was misshapen,” and more critically, she was covered in
both dried and fresh blood, with fresh bleeding from “her nose,
her eyes, [and] her ears.” Based on Peterson’s additional strikes
and the fresh blood from critical areas of Wife’s head, a jury
could reasonably conclude that after Wife cleaned herself off at
the water fountain, Peterson acted with unlawful force that was
likely to produce death or serious bodily injury and actually
caused Wife additional serious bodily injury. See id.
¶28 	Therefore, Peterson’s actions preceding the cleanup at the
water fountain support his conviction of aggravated kidnapping,
and 	are 	materially 	different 	from 	his 	actions 	undertaken
afterward that support his conviction for aggravated assault.
Accordingly, Peterson could not have established that the exact
same conduct supported the two convictions, precluding merger
of the offenses.5 See Farnworth, 2018 UT App 23, ¶ 51 (rejecting
5. 	Despite 	Peterson’s 	argument 	comparing 	the 	statutory
elements of the specific variations of the crimes at issue here, we
do not reach the two-part test used in determining whether a
conviction for a second offense arising out of the same set of
facts 	violates 	Utah 	Code 	section 	76-1-402(3)(a), 	because 	the
record 	shows 	that 	materially 	different 	acts 	supported 	the
(continued…)

State v. Peterson
20180550-CA 	15 	2020 UT App 47
merger argument because defendant could not “establish that
the exact same conduct supported his convictions” (cleaned up));
see also Met v. State, 2016 UT 51, ¶ 139, 388 P.3d 447 (Lee, A.C.J.,
concurring) (“[The merger] statute seems . . . to leave no room
. . . to prescribe merger for crimes . . . that arise out of virtually
the same conduct, or . . . essentially the same act.” (cleaned up)).
¶29 	Reasonable trial counsel could have anticipated that a
statutory motion for merger of the aggravated assault conviction
into the aggravated kidnapping conviction under the facts of this
case would have been futile. Accordingly, trial counsel’s conduct
was objectively reasonable at the time, and Peterson did not
receive constitutionally ineffective assistance.
CONCLUSION
¶30 	We 	conclude 	there 	is 	some 	evidence 	to 	support 	a
reasonable 	jury’s 	finding 	that 	the 	State 	proved 	beyond 	a
reasonable doubt that Wife was detained or restrained against
her will throughout the episode, supporting the aggravated
kidnapping charge. And we hold that Peterson’s trial counsel
was not deficient for declining to move for merger of the
aggravated 	assault 	offense 	into 	the 	aggravated 	kidnapping
offense under the merger statute because the convictions were
based on materially different acts. We therefore uphold the trial
court’s denial of Peterson’s motion for directed verdict and
conclude that Peterson did not receive ineffective assistance of
counsel; affirming his convictions for both aggravated assault
and aggravated kidnapping.
(…continued)
separate 	convictions 	for 	aggravated 	assault 	and 	aggravated
kidnapping. See State v. Farnworth, 2018 UT App 23, ¶ 50, 414
P.3d 1053.