State v. Lee

2006 UT 5
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20040560
Plaintiff and Appellee,
v.
F I L E D
James Earl Lee,
Defendant and Appellant. 	January 13, 2006
---
Eighth District, Vernal Dep’t
The Honorable John R. Anderson
No. 031800240
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray, Asst.
Att’y Gen., Salt Lake City, and G. Mark Thomas,
Vernal, for plaintiff
Bryan Sidwell, Vernal, for defendant
---
PARRISH, Justice:
¶1 	Defendant James Earl Lee appeals his convictions for
one count of aggravated kidnaping and two counts of aggravated
assault. 	He argues that the trial court erred in failing to
remove two potential jurors for cause during voir dire and in
failing to merge his aggravated kidnaping conviction with one of
his aggravated assault convictions. 	He also argues that his
attorney rendered ineffective assistance by failing to object to
the composition of the jury panel and by failing to seek merger
of the convictions. 	We disagree and affirm.
BACKGROUND
¶2 	When reviewing a challenge to a criminal conviction,
“[w]e recite the facts from the record . . . in the light most
favorable to the jury’s verdict.” 	State v. Geukgeuzian, 2004 UT
16, ¶ 2, 86 P.3d 742 (alteration in original) (internal quotation
marks omitted).

No. 20040560 	2
¶3 	In the early morning hours of July 5, 2003, eighteen-
year-olds Jennifer Hardinger and Judy Hullinger were walking
along Highway 40 in Vernal en route to a friend’s house. 	As they
walked, they encountered Lee, who approached them, complimented
them on their respective appearances, and invited them to “party”
with him. 	When the girls declined his invitation, Lee offered to
purchase alcohol for them. 	The girls again declined, and
Hardinger walked away.
¶4 	Hullinger was about to do the same when Lee grabbed her
arm, complimented her on her body, and fondled her breasts. 	He
then put his hand down the front of Hullinger’s pants. 	In
response, Hullinger kicked Lee, turned, and ran to Hardinger.
The two girls initially ran. 	Then, thinking that their encounter
with Lee was over, slowed their pace to a walk. 	Lee approached
Hullinger unnoticed from behind, grabbed her hair, and slammed
her to the pavement. 	He proceeded to drag her by the hair across
Highway 40 to an alley separating two buildings, where he kicked
her repeatedly in the head, rolled her over, pulled down her
pants, and got on top of her.
¶5 	Hardinger intervened, pulling Lee off Hullinger and
then attempting to drag Hullinger to the highway. 	In response,
Lee grabbed Hardinger and repeatedly demanded that she pull down
her pants. 	Hardinger told Lee that she would, presumably as a
ruse to trick him into relenting and to buy some time. 	Hardinger
then attempted to flee, but Lee caught her, slammed her to the
ground, and kicked her several times in the face. 	Lee then
desisted, stating, “I don’t want to rape you girls anyway. 	You
guys tell the police, I’ll kill you.” 	Finally, he left.
¶6 	Because Lee was wearing steel-toed boots on the night
in question, both girls sustained severe injuries as a result of
Lee’s beatings. 	Lee was subsequently arrested and charged with
two counts of aggravated assault and two counts of aggravated
kidnaping. 	After a preliminary hearing and bindover, the case
went to trial.
¶7 	During voir dire, the trial judge identified the
participants and witnesses that would appear during the course of
the trial and asked whether any of the potential jurors had a
close personal relationship with any of them. 	Juror 17 disclosed
that she had previously been prosecuted by the State prosecutor.
She also stated that she knew both Hardinger and one of the
police officers who had investigated the assault and who was
scheduled to testify. 	When asked whether she would favor the
testimony of those individuals, she responded that she would be
fair. 	Later, in chambers, it was disclosed that Lee’s attorney

1 The briefs in this matter reflect the assumption of both
parties that Lee was convicted of aggravated assault against both
Hardinger and Hullinger and that he was convicted of aggravated
kidnaping against Hullinger, though neither the information nor
the jury’s verdict explicitly says so. 	Because we find nothing
in the record to contradict that assumption, we accept it for
purposes of this appeal.
3 	No. 20040560
represented Juror 17’s grandmother in business dealings. 	The
judge asked Juror 17 whether her prior dealings with the State
prosecutor and Lee’s attorney would prevent her from being fair,
and she responded that they would not. 	Juror 17 also stated that
she had not talked to Hardinger “in about four or five weeks,”
that she “went to school with [Hardinger] sometimes,” that
Hardinger occasionally came “over to the house that [Juror 17]
part[ied] at sometimes,” but that her relationship with Hardinger
would not compromise her impartiality. 	Both the State prosecutor
and Lee’s attorney passed Juror 17 for cause, but Lee’s attorney
eventually struck her from the jury through use of a peremptory
challenge.
¶8 	Also during voir dire, the trial judge asked if any
potential jurors, their close friends, or members of their
families had been involved with law enforcement. 	Juror 18 stated
that she had “a niece by marriage that is married to a
detective.” 	When the trial judge asked Juror 18 whether that
relationship would “cause [her] to be giving more weight to the
police side of the table,” she responded that it would not.
Later, when asked whether she had a close relationship with any
prospective witnesses, Juror 18 clarified her previous answer,
stating that the detective to whom her niece was married had
participated in investigating the assault and was scheduled to
testify. 	The trial judge asked her how often she had contact
with the detective, and Juror 18 responded, “Not very often.”
The trial judge then asked Juror 18 whether she would give the
detective’s testimony more weight, to which she responded that
she would be fair.
¶9 	At the conclusion of voir dire, the trial judge asked
both parties whether the remaining potential jurors, which
included Juror 18, constituted “the jury as selected.” 	Lee’s
attorney responded, “It is, Your Honor.”
¶10 	This jury convicted Lee of two counts of aggravated
assault and one count of aggravated kidnaping. 1 	The trial court
did not merge Lee’s aggravated kidnaping conviction into his
corresponding aggravated assault conviction, and Lee’s attorney
made no objection.

No. 20040560 	4
¶11 	Lee appealed his convictions to the Utah Court of
Appeals. 	The court of appeals subsequently transferred the
appeal to this court because it involved a first degree felony
conviction. 	See Utah Code Ann. § 78-2-2(3)(i) (2002). 	Pursuant
to our pourover authority, we transferred the case back to the
court of appeals. 	See id. § 78-2-2(4). 	We later rescinded that
transfer so that we could hear Lee’s appeal concurrently with
State v. King, 2006 UT 3, 128 P.3d 1171, and State v. Winfield,
2006 UT 4, 128 P.3d 1179, which, like Lee’s appeal, raise the
question of the applicable standard of review where challenges to
jury composition are raised for the first time on appeal. 	We
have jurisdiction pursuant to Utah Code section 78-2-2(3)(i).
ANALYSIS
¶12 	On appeal, Lee asserts two principal claims, each of
which involves a related ineffective assistance of counsel claim.
First, Lee argues that the trial court erred in failing to remove
Jurors 17 and 18 for cause from the jury panel. 	Alternatively,
he argues that his attorney rendered ineffective assistance by
failing to ask that the trial court strike those jurors for
cause. 	Second, Lee argues that the trial court erred in failing
to merge his aggravated kidnaping conviction into his
corresponding aggravated assault conviction. 	Alternatively, he
argues that his attorney rendered ineffective assistance in
failing to request such a merger. 	We address each argument in
turn.
I. 	THE TRIAL COURT’S FAILURE TO REMOVE
JURORS 17 AND 18 FOR CAUSE
¶13 	We first address Lee’s claim that the trial court erred
by failing to remove Jurors 17 and 18 for cause, and Lee’s
alternative claim that his attorney provided ineffective
assistance by failing to raise for-cause challenges against those
jurors.
A. 	Did the Trial Court Err by Failing to
Remove Jurors 17 and 18 For Cause?
¶14 	Although Lee now argues that the trial court erred in
failing to remove Jurors 17 and 18 for cause, Lee’s counsel did
not raise any objection to Jurors 17 and 18 in the trial court.
When an appellant raises a claim on appeal that was not preserved
in the trial court, we ordinarily review that claim only for
plain error. 	Here, however, Lee contends that we should review
the trial court’s actions for an abuse of discretion. 	In support

2 In King, we reviewed the defendant’s newly raised claims
of jury bias under a plain error standard only because the State
failed to raise the doctrine of invited error. 	2006 UT 3, ¶ 20
n.2.
5 	No. 20040560
of that contention, he cites State v. King, 2004 UT App 210, 95
P.3d 282, in which the court of appeals applied an abuse of
discretion standard to a challenge arising from voir dire even
though the appellant failed to object to the jury panel in the
trial court. 	Id. ¶¶ 10, 26.
¶15 	Lee’s reliance on the court of appeals’ decision in
King is to no avail in light of our recent consideration of King
on certiorari review. 	In State v. King, 2006 UT 3, ¶ 12, ___
P.3d ___, we reversed the court of appeals, holding that the
plain error standard of review, not the abuse of discretion
standard, applies when challenges to the jury’s composition are
raised for the first time on appeal.
¶16 	Unfortunately for Lee, however, he is not in a position
to obtain even plain error review because his counsel invited the
alleged error that he now raises on appeal. 	Under our doctrine
of invited error, Lee is simply not entitled to any appellate
review.
¶17 	In State v. Winfield, 2006 UT 4, 128 P.3d 1171, which
was argued on the same day as Lee’s appeal, we held that the
doctrine of invited error precluded Winfield from contesting on
appeal the composition of the jury that convicted him because he
had affirmatively stated his acceptance of the jury in the trial
court. 	Id. ¶ 18. 	In other words, the doctrine of invited error-
-not abuse of discretion or plain error--applies to claims of
juror bias made for the first time on appeal in those cases where
the appellant affirmatively proclaims the acceptability of the
jury in the trial court. 	See id. ¶ 16.
¶18 	If a party is dissatisfied with the thoroughness of
voir dire or has concerns arising from a potential juror’s
responses to voir dire, that party may seek to remove the
potential juror, propose additional questions, or ask the court
for further questioning. 	See Utah R. Crim. P. 18(b). 	But where
a party affirmatively expresses to the trial court his assent to
the composition of the jury, that party cannot challenge the
composition of the jury on appeal. 2 	Id.; see also State v.
Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111 (noting that a party
invites error if she “affirmatively represent[s] to the court
that . . . she [has] no objection”).

3 Some jurisdictions have held that the invited error
doctrine “estop[s] a defendant from claiming ineffective
assistance of counsel based on counsel’s acts or omissions in
conformance with the defendant’s own requests.” 	People v.
Majors, 956 P.2d 1137, 1153 (Cal. 1998) (internal quotation marks
omitted). 	Though we have decided that the invited error doctrine
prevents Lee from challenging the jury’s composition on appeal,
we need not decide whether the invited error doctrine estops Lee
from claiming ineffective assistance in this instance because we
conclude that Lee has not adequately briefed his ineffective
assistance argument in the first place.
No. 20040560 	6
¶19 	Underlying this rule is the reality that voir dire,
like every other aspect of trial, is an adversarial process. 	The
“brilliance” of the adversarial process is that each party is
responsible for exercising its for-cause and peremptory
challenges with an eye to securing a jury that is favorable to
its interests. 	State v. Moton, 749 P.2d 639, 642 (Utah 1988).
While the trial court is responsible for ensuring the fairness of
voir dire, our adversary system requires that it respect the
trial strategies of the respective parties. 	State v. Litherland,
2000 UT 76, ¶ 32, 12 P.3d 92. 	Accordingly, when the parties fail
to object to the composition of the jury, a trial court has no
obligation to second-guess that silence if the voir dire process
over which it presided was fundamentally fair. 	See King, 2006 UT
3, ¶¶ 22-23.
¶20 	Here, the State argues that Lee “affirmatively waived
any challenge to Juror 18 at trial” because, when asked whether
the jury panel was “the jury as selected,” Lee responded, “It is,
Your Honor.” 	We agree and therefore conclude, as we did in
Winfield, that the invited error doctrine prevents Lee from
challenging the jury’s composition on appeal. 	Winfield, 2006 UT
4, ¶ 21.
B. 	Did Lee’s Attorney Provide Ineffective Assistance
by Failing to Object to the Jury’s Composition?
¶21 	We turn to Lee’s alternative claim that his attorney
rendered ineffective assistance by failing to object to the
jury’s composition. 3 	Although Lee raises this claim, we decline
to address it substantively because it is inadequately briefed.
¶22 	An adequately briefed argument “contain[s] the
contentions and reasons of the appellant with respect to the
issues presented, including the grounds for reviewing any issue
not preserved in the trial court, with citations to the
authorities, statutes, and parts of the record relied on.” 	Utah

4 Lee may so argue because, in contrast to the previous
issue, he did not affirmatively assent to the trial court’s
decision not to merge the charges. 	The invited error doctrine is
therefore inapplicable. 	State v. Hamilton, 2003 UT 22, ¶ 54, 70
P.3d 111 (noting that the invited error doctrine applies when a
party affirmatively leads the trial court into error).
7 	No. 20040560
R. App. P. 24(a)(9). 	We have held that, to be adequate, briefs
must provide “meaningful legal analysis.” 	State v. Gamblin, 2000
UT 44, ¶ 7, 1 P.3d 1108. 	An adequate brief is one that fully
identifies and analyzes the issues with citation to relevant
legal authority. 	State v. Green, 2005 UT 9, ¶ 11, 108 P.3d 710.
Mere “bald citation to authority,” devoid of any analysis, is not
adequate. 	State v. Jaeger, 1999 UT 1, ¶ 31, 973 P.2d 404
(internal quotation marks omitted). 	And we may refuse, sua
sponte, to consider inadequately briefed issues. 	Utah R. App. P.
24(j); accord Bernat v. Allphin, 2005 UT 1, ¶ 38, 106 P.3d 707,
cert. denied, 125 S. Ct. 2550 (2005).
¶23 	Here, the briefing of Lee’s claim of ineffective
assistance is inadequate. 	Lee’s opening brief on the ineffective
assistance issue is conclusory and provides no meaningful
analysis. 	Rather, it simply asserts that his attorney should
have objected to the trial court’s failure to strike Jurors 17
and 18 for cause, that his attorney failed to do so, and that
this failure constitutes ineffective assistance. 	Because Lee
fails to explain why his attorney’s failure to object constitutes
ineffective assistance, we conclude that Lee’s argument fails to
meet the threshold of argumentative completeness mandated by rule
24 and decline to address it on its merits. 	See Bernat, 2005 UT
1, ¶ 38 (declining to review an inadequately briefed issue).
II. 	THE TRIAL COURT’S FAILURE TO MERGE LEE’S
AGGRAVATED KIDNAPING CONVICTION WITH HIS
CORRESPONDING CONVICTION FOR AGGRAVATED ASSAULT
¶24 	Having rejected Lee’s claim that the trial court erred
during voir dire, we turn to Lee’s attacks on the trial court’s
failure to merge his aggravated kidnaping conviction into his
corresponding conviction for aggravated assault. 	Because Lee did
not object to the trial court’s failure to merge the two
convictions, he may obtain review of this claim only if he
succeeds in establishing plain error, exceptional circumstances,
or ineffective assistance of counsel. 	See State v. Hansen, 2002
UT 114, ¶ 21 n.2, 61 P.3d 1062. 4 	Lee argues both plain error and
ineffective assistance of counsel, claiming that the trial court
committed plain error by failing to merge the two convictions and
that his attorney provided ineffective assistance by failing to

No. 20040560 	8
request that the trial court do so. 	We address each argument in
turn.
A. 	Did the Trial Court Err by Failing to Merge
Lee’s Aggravated Kidnaping Conviction into His
Corresponding Aggravated Assault Conviction?
¶25 	Lee argues that the trial court committed plain error
by failing to merge his aggravated kidnaping conviction into his
corresponding aggravated assault conviction. 	Lee maintains that
any kidnaping that transpired on the night in question was merely
a component of the corresponding assault; it was incidental to,
and indeed indistinguishable from, the assault and should
therefore be merged for sentencing purposes into Lee’s
corresponding conviction for aggravated assault. 	We disagree.
¶26 	To establish plain error, Lee must demonstrate that
“(i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the
error, there is a reasonable likelihood of a more favorable
outcome.” 	State v. Hassan, 2004 UT 99, ¶ 10, 108 P.3d 695
(internal quotation marks omitted). 	Because merger questions are
legal in nature, we review them for correctness. 	See State v.
Fedorowicz, 2002 UT 67, ¶ 59, 52 P.3d 1194.
¶27 	In addressing the merger issue, Lee and the State
confine their analysis to the test we set forth in State v.
Finlayson, 2000 UT 10, 994 P.2d 1243. 	That test provides:
“[I]f a taking or confinement is alleged to
have been done to facilitate the commission
of another crime, to be kidnaping the
resulting movement or confinement:
(a) Must not be slight, inconsequential
and merely incidental to the other crime;
(b) Must not be of the kind inherent in
the nature of the other crime; and
(c) Must have some significance
independent of the other crime in that it
makes the other crime substantially easier of
commission or substantially lessens the risk
of detection.”
Id. ¶ 23 (alteration in original) (quoting State v. Buggs, 547
P.2d 720, 731 (Kan. 1976)).

9 	No. 20040560
¶28 	The Utah Code, however, provides another merger
analysis in section 76-1-402. 	That provision states:
(3) 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. 	An offense
is so included when:
(a) It is established by proof of
the same or less than all the facts
required to establish the commission of
the offense charged; or
(b) It constitutes an attempt,
solicitation, conspiracy, or form of
preparation to commit the offense
charged or an offense otherwise included
therein; or
(c) It is specifically designated
by a statute as a lesser included
offense.
Utah Code Ann. § 76-1-402(3) (2003). 	Determining whether merger
is appropriate under this provision is a simple matter of
statutory construction, State v. Bluff, 2002 UT 66, ¶ 37, 52 P.3d
1210, requiring us to “compar[e] the statutory elements of the
two crimes as a theoretical matter,” Fedorowicz, 2002 UT 67, ¶ 59
(internal quotation marks omitted).
¶29 	In the interest of clarity, we find it appropriate to
address the relationship between the two aforementioned merger
tests. 	The totality of our approach in Finlayson illustrates
that relationship. 	In Finlayson, the defendant was convicted of
aggravated kidnaping, rape, and forcible sodomy. 	2000 UT 10,
¶ 1. 	On appeal, he argued that aggravated kidnaping was a lesser
included offense of either rape or forcible sodomy and that his
aggravated kidnaping conviction consequently merged into the
other convictions. 	Id. ¶ 7. 	In analyzing that claim, we looked
first to section 76-1-402 and noted that, because of the
statutory elements of the crimes in question, aggravated
kidnaping was not a lesser included offense of either of the
other two crimes under that section. 	We consequently concluded
that the defendant’s aggravated kidnaping conviction did not
merge into the other two convictions pursuant to section
76-1-402. 	Id. ¶ 16.

No. 20040560 	10
¶30 	We recognized, however, that “[s]ection 76-1-402 . . .
is not the only basis for finding that one set of facts may give
rise to a merger of two or more separate crimes so as to preclude
a multitude of convictions for essentially the same conduct.”
Id. ¶ 17. 	As an example of this principle, we cited State v.
Couch, 635 P.2d 89 (Utah 1981), which “dealt with the issue of
when a kidnaping may merge into a sexual assault crime.”
Finlayson, 2000 UT 10, ¶ 17; see also Couch, 635 P.2d at 91. 	In
discussing Couch, we noted that “[b]y definition, every rape and
forcible sodomy is committed against the will of the victim and
therefore involves a necessary detention, which is, of course,
required by the kidnaping statutes. 	Thus, absent a clear
distinction, virtually every rape and robbery would automatically
be a kidnaping as well.” 	Finlayson, 2000 UT 10, ¶ 19.
¶31 	In other words, we recognized that, in some factual
scenarios, crimes may be so related that they must merge even
though neither is a lesser included offense of the other under
section 76-1-402. 	Where two crimes are defined narrowly enough
that proof of one does not constitute proof of the other, but
broadly enough that both may arise from the same facts, merger
may be appropriate. 	Otherwise, a criminal defendant could be
punished twice for conduct that amounts to only one offense, a
result contrary to protections against double jeopardy in
general, see State v. Harris, 2004 UT 103, ¶ 22, 104 P.3d 1250,
and the merger doctrine in particular, see State v. Lopez, 2004
UT App 410, ¶ 8, 103 P.3d 153 (“Courts apply the merger doctrine
as one means of alleviating the concern of double jeopardy that a
defendant should not be punished twice for the same crime.”).
¶32 	In summary, a proper merger analysis requires
consideration of both section 76-1-402 and the Finlayson factors.
If one conviction is a lesser included offense of another
conviction under section 76-1-402, the convictions merge. 	If
not, the Finlayson factors must be assessed to determine whether
merger is appropriate. 	The court of appeals recently conducted
just such an analysis, articulating it as follows:
To identify a lesser included offense, we
must first determine if the lesser offense is
established by proof of the same or less than
all the facts required to establish the
commission of the offense charged. 	If the
greater offense cannot be committed without
necessarily having committed the lesser, then
the lesser offense merges into the greater
crime. 	Thus, unless the crimes involved have
multiple variations, we will look only to the

11 	No. 20040560
statutory elements of the two crimes in
making this determination. 	If, however, from
the statutory language we conclude that it is
possible for one statute to be a lesser
included offense of the other, we must look
beyond the statutory elements and compare the
evidence.
State v. Smith, 2003 UT App 179, ¶ 12, 72 P.3d 692 (internal
quotation marks and citations omitted).
¶33 	Having articulated the proper analysis for merger, we
now apply it to Lee’s case. 	We turn first to section 76-1-402
and note that aggravated kidnaping is not “specifically
designated by a statute as a lesser included offense” of
aggravated assault. 	Utah Code Ann. § 76-1-402(2)(c). 	See
generally Utah Code Ann. §§ 76-5-101 to -113 (2003 & Supp. 2005)
(discussing assault and related crimes). 	Nor does aggravated
kidnaping “constitute[] an attempt, solicitation, conspiracy, or
form of preparation to commit” aggravated assault. 	Utah Code
Ann. § 76-1-402(3)(b). 	Finally, proving aggravated kidnaping
does not require “proof of the same or less than all the facts
required to establish the commission of” aggravated assault, id.
§ 76-1-402(3)(a), because detention is a required statutory
element of aggravated kidnaping, id. §§ 76-5-301, -302, but not
of aggravated assault, id. §§ 76-5-101 to -102. 	We accordingly
hold that aggravated kidnaping is not a lesser included offense
of aggravated assault under section 76-1-402.
¶34 	We next assess Lee’s claim of merger under the
Finlayson factors. 	We conclude that dragging Hullinger across a
highway by her hair was not “slight, inconsequential and merely
incidental to” the assault Lee had already commenced against her.
Finlayson, 2000 UT 10, ¶ 23. 	Nor was Lee’s movement of Hullinger
to a location across Highway 40 “inherent in the nature of” his
assault on her. 	Id. 	Indeed, most assaults do not involve the
relocation of the victim from one site to another. 	Finally,
Hullinger’s aggravated kidnaping carried a “significance
independent of” the aggravated assault, as it allowed Lee to
carry Hullinger away from Hardinger, thereby rendering further
assault, or even rape, “substantially easier of commission.” 	Id.
In addition, carrying Hullinger to the alley between two
buildings at a very early hour of the morning made the assault
far more difficult to detect than it would have been on Highway
40 and thereby “substantially lessen[ed] [Lee’s] risk of
detection.” 	Id.

No. 20040560 	12
¶35 	We reject Lee’s claim that his convictions were subject
to merger under the Finlayson test. 	Because the trial court did
not err in failing to merge the convictions, Lee’s plain error
claim fails. 	Hassan, 2004 UT 99, ¶ 10.
B. 	Did Lee’s Attorney Provide Ineffective Assistance
of Counsel by Failing to Request Merger?
¶36 	We finally address Lee’s argument that his attorney
provided ineffective assistance by failing to object to the trial
court’s failure to merge his aggravated kidnaping conviction with
one of his aggravated assault convictions. 	Unlike Lee’s argument
that his attorney rendered ineffective assistance by failing to
object to the composition of the jury, Lee’s argument that his
attorney rendered ineffective assistance by failing to seek
merger is adequately briefed.
¶37 	To prove that his attorney rendered ineffective
assistance, Lee must demonstrate that (1) “counsel’s performance
was so deficient as to fall below an objective standard of
reasonableness” and (2) “but for counsel’s deficient performance
there is a reasonable probability that the outcome of the trial
would have been different.” 	Myers v. State, 2004 UT 31, ¶ 20, 94
P.3d 211 (internal quotation marks omitted).
¶38 	Lee can establish neither element. 	Because Lee’s
aggravated kidnaping conviction does not merge with his
corresponding aggravated assault conviction, counsel’s failure to
request merger did not “fall below an objective standard of
reasonableness” id., and did not, at any rate, lead to a less
favorable outcome for Lee. 	We therefore reject Lee’s claim that
his attorney was ineffective when he failed to seek merger.
CONCLUSION
¶39 	We affirm Lee’s convictions. 	Because Lee’s counsel
affirmatively voiced approval of the jury’s composition, the
invited error doctrine precludes Lee from challenging the jury
composition on appeal. 	Lee’s argument that his attorney provided
ineffective assistance by failing to object to the jury’s
composition is inadequately briefed, and we consequently do not
address it. 	We also conclude that it would have been
inappropriate to merge Lee’s aggravated kidnaping conviction with
his corresponding aggravated assault conviction under either Utah
Code section 76-1-402 or the Finlayson test. 	Therefore, the
trial court did not err by failing to merge those convictions,
and Lee’s attorney did not render ineffective assistance by
failing to request that it do so.

13 	No. 20040560
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¶40 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.