1. The Honorable Pamela T. Greenwood, Senior Judge, sat by

special assignment as authorized by law. See generally Utah Code

Jud. Admin. R. 11-201(6).

2014 UT App 185

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

ROGER ELLIS,

Defendant and Appellant.

Opinion

No. 20120444-CA

Filed August 7, 2014

Third District Court, Salt Lake Department

The Honorable Randall N. Skanchy

No. 101906502

Ronald Fujino, Attorney for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys

for Appellee

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in

which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE concurred.1

GREENWOOD, Senior Judge:

¶1 Roger Ellis appeals from his convictions of aggravated

kidnapping, intentional abuse of a vulnerable adult, and damaging

or interrupting a communication device. We affirm.
State v. Ellis

2. We recite the facts in a light most favorable to the jury’s verdict.

State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116.

20120444-CA 2 2014 UT App 185

BACKGROUND

¶2 The acts leading to Ellis’s convictions occurred on August 8,

2010, in the house he shared with his then-eighty-six-year-old

mother (Mother). Throughout most of that day, Ellis followed 2

Mother around the house saying “nasty things” to her, telling her

she was “no good,” obstructing her movement, and waiting for her

outside the door of the bathroom. At one point, he called Mother

a “lying bitch” and punched her on the side of her head. Around

four that afternoon, Ellis grabbed a butcher knife from the kitchen

and began slashing the air with it, apparently attempting to

eradicate the “monsters” that he accused Mother of bringing into

the house. Mother later explained in her trial testimony that Ellis

sustained permanent and degenerative brain damage from a head

injury that occurred more than thirty years before the August 8,

2010 incident. In addition, Mother explained that Ellis “had

struggled with [drugs] for a long time” and that when he was

under the influence of “dope,” he would “see[] monsters or spirits

in the house” and become “very agitated.”

¶3 Also on August 8, 2010, under the pretense of shooing the

monsters out of the house, Mother twice attempted to exit the

house through the front door. Both times, Ellis pulled her back

inside and hit her; after her first attempt, he hit her on the shoulder,

and after the second attempt, he hit her in the head. Around 9:19

p.m., after the second blow, Ellis instructed Mother to go to bed at

which time Mother pushed the alarm on a medical alert device she

wore around her neck. Ellis answered the telephone call from the

dispatcher signaled by the medical alert device and told the

dispatcher that Mother inadvertently pressed the alarm button.

¶4 Ellis then followed Mother into her bedroom, laid next to

her on the bed with the butcher knife in his hands, and threatened

to kill her. About an hour later, Ellis left the bedroom to have a

cigarette in another part of the house, at which time Mother used
State v. Ellis

20120444-CA 3 2014 UT App 185

the cell phone in her pocket to call 911. Paramedics arrived under

the impression that Mother was experiencing chest pains. Once she

was loaded into the ambulance, Mother explained what had

actually transpired.

¶5 During a two-day jury trial, the State presented testimony

from Mother, the responding paramedics, and several police

officers involved in the investigation. Because the State alleged that

the charges of aggravated kidnapping and interference with a

communication device were both domestic violence offenses, it was

also required to prove that Ellis was Mother’s cohabitant. Ellis’s

defense rested on discrediting Mother, pointing out inconsistencies

and ambiguities in her testimony, implying that she suffered from

dementia, and suggesting that she may have injured herself in a fall

a few days prior to the August 8 incident. At the close of the State’s

case, defense counsel moved to dismiss the aggravated kidnapping

charge on grounds of insufficient evidence, but the trial court

denied the motion. The jury convicted Ellis on all counts. Ellis

appeals.

ISSUES AND STANDARDS OF REVIEW

¶6 Ellis first argues that the trial court erred by not dismissing

the aggravated kidnapping charge. “A trial court’s grant or denial

of a motion to dismiss is a question of law . . . [the court] review[s]

for correctness, giving no deference to the decision of the trial

court.” State v. Arave, 2011 UT 84, ¶ 25, 268 P.3d 163 (alterations

and omission in original) (citation and internal quotation marks

omitted).

¶7 Ellis next contends that he received ineffective assistance

from his trial counsel based on counsel’s failure to object to the jury

instructions explaining the reasonable doubt standard and to the

jury instruction defining the term “cohabitant.” “An ineffective

assistance of counsel claim raised for the first time on appeal

presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d

162.
State v. Ellis

3. Because the relevant provisions of the Utah Code in effect at the

time of the incident underlying this appeal do not differ

substantively from the current version of the Utah Code, we cite

the current version for the reader’s convenience.

20120444-CA 4 2014 UT App 185

ANALYSIS

I. Aggravated Kidnapping

¶8 Ellis contends that it was error for the trial court not to

dismiss the aggravated kidnapping charge because he claims the

evidence was insufficient to show that a detention independent

from the facts supporting the abuse of a vulnerable adult

conviction had occurred. “A defendant’s motion to dismiss for

insufficient evidence at the conclusion of the State’s case in chief

requires the trial court to determine whether the defendant must

proceed with the introduction of evidence in his defense.” State v.

Hamilton, 2003 UT 22, ¶ 40, 70 P.3d 111 (citation and internal

quotation marks omitted). “If the State fails to produce believable

evidence of all the elements of the crime charged, the trial court

must dismiss the charges.” Id. (citation and internal quotation

marks omitted).

¶9 Thus, in reviewing the trial court’s denial of Ellis’s motion

to dismiss, “we apply the same standard used when reviewing a

jury verdict” and will uphold the denial of the motion “if upon

reviewing the evidence and all inferences that can be reasonably

drawn from it, [we] conclude[] that some evidence exists from

which a reasonable jury could find that the elements of the crime

had been proven beyond a reasonable doubt.” See id. ¶ 41 (citation

and internal quotation marks omitted). The State’s theory of

aggravated kidnapping in this case required it to demonstrate that

Ellis, “in the course of committing unlawful detention or

kidnapping: (a) possesse[d], use[d], or threaten[ed] to use a

dangerous weapon . . . or (b) act[ed] with intent . . . to inflict bodily

injury on or to terrorize the victim or another.” See Utah Code Ann.

§ 76-5-302(1)(a), (1)(b)(iv) (LexisNexis Supp. 2013). In accordance 3

with the corresponding statutes, the jury was instructed that
State v. Ellis

20120444-CA 5 2014 UT App 185

“unlawful detention” occurs when a person “intentionally or

knowingly, without authority of law, and against the will of the

victim, detains or restrains the victim,” see id. § 76-5-304(1)

(LexisNexis 2012), and that “kidnapping” occurs when a person

“intentionally or knowingly, without authority of law, and against

the will of the victim[,] . . . detains or restrains the victim for any

substantial period of time; [or] . . . detains or restrains the victim in

circumstances exposing the victim to risk of bodily injury,” see id.

§ 76-5-301(1)(a)–(b).

¶10 Ellis specifically argues that the State did not meet its

burden on the detention element of the kidnapping charge because

the evidence indisputably shows that “the events occurred entirely

in [Mother’s] home,” where she was able to move around freely,

and that she was left alone at least once while Ellis smoked a

cigarette. This assertion, however, focuses on the weight of the

evidence, not the sufficiency. Here, the trial court correctly ruled

that the State had presented “some evidence . . . from which a

reasonable jury could find that the elements of” aggravated

kidnapping “had been proven beyond a reasonable doubt.” See

Hamilton, 2003 UT 22, ¶ 41 (citation and internal quotation marks

omitted). We agree with the State’s summation that a reasonable

jury could base an aggravated kidnapping conviction on Mother’s

testimony that Ellis had “followed her around the house

throughout the day—even following her to the bathroom,”

prevented her from using the telephone, “twice physically

prevented her from leaving the home, foiled her attempt to get

help by calling the medical alert company, and laid down next to

her on a bed with a knife.”

¶11 Ellis also argues that the trial court erred in denying his

motion to dismiss the kidnapping charge because the charge

merged with the abuse of a vulnerable adult charge. “Merger is a

judicially-crafted doctrine available to protect criminal defendants

from being twice punished for committing a single act that may

violate more than one criminal statute.” See State v. Diaz, 2002 UT

App 288, ¶ 17, 55 P.3d 1131 (citing State v. Finlayson, 2000 UT 10,

¶ 19, 994 P.2d 1243); see also id. (“Merger is most commonly applied

to situations involving a defendant who has been charged with
State v. Ellis

4. Furthermore, even if this issue had been properly preserved, it

is without merit. Under the facts of this case, the charges could not

have been merged because the acts constituting kidnapping, as

previously described, were independent of and interspersed with

several acts of assault. See State v. Finlayson, 2000 UT 10, ¶ 19, 994

P.2d 1243 (explaining that separate convictions for kidnapping and

sexual assault can be sustained where the evidence “show[s] that

the kidnaping detention was longer than the necessary detention

involved in the commission of the sexual assault” or, in other

words, “the facts establishing the kidnaping detention must not be

merely incidental to the sexual assault, but separate and

independent therefrom”).

20120444-CA 6 2014 UT App 185

committing both a violent crime, in which a detention is inherent,

and the crime of kidnaping based solely on the detention necessary

to the commission of the companion crime.”). 

¶12 A “trial court cannot assess whether, under the particular

facts of the case, one charge merges into another until the

prosecution has presented its case and the jury has convicted the

defendant of multiple charges.” State v. Lopez, 2004 UT App 410,

¶¶ 8–9, 103 P.3d 153 (“[T]he defense can object that charges merge

at any time, either during trial, or following the conviction on a

motion to vacate, but the trial court should rule on the objection

only if the jury returns convictions.” (citations and internal

quotation marks omitted)); see also State v. Hawatmeh, 2001 UT 51,

¶ 17 n.3, 26 P.3d 223 (indicating that the doctrine of merger applies

to convictions, not charges); Commonwealth v. Lowry, 394 A.2d 1015,

1018 (Pa. Super. Ct. 1978) (explaining that “a defendant may be

convicted of two merged crimes” but “can be sentenced [only]

once”). As a result, to the extent he sought dismissal of his

kidnapping charge on the basis of merger, Ellis’s motion was

premature, and he failed to raise the issue again after the jury

submitted its verdict or otherwise request that the trial court

reconsider the matter. Thus, Ellis has not properly preserved the

issue of whether the trial court should have merged the kidnapping

charge into the abuse charge and we do not address the argument

further. See generally Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 4

(“Generally, in order to preserve an issue for appeal the issue must
State v. Ellis

20120444-CA 7 2014 UT App 185

be presented to the trial court in such a way that the trial court has

an opportunity to rule on that issue.” (citation and internal

quotation marks omitted)).

II. Ineffective Assistance of Trial Counsel

¶13 Ellis next argues that he received ineffective assistance of

counsel. Ellis claims that his trial counsel was ineffective for failing

to object to the explanation of the reasonable doubt standard in the

jury instructions and the definition of “cohabitant” in the jury

instructions.

¶14 “To prove ineffective assistance of counsel, [a] defendant

must show: (1) that counsel’s performance was objectively

deficient, and (2) [that] a reasonable probability exists that but for

the deficient conduct [the] defendant would have obtained a more

favorable outcome at trial.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d

162 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “To

satisfy the first part of the test, [a] defendant must overcome the

strong presumption that [his] trial counsel rendered adequate

assistance, by persuading the court that there was no conceivable

tactical basis for counsel’s actions.” Id. (second alteration in

original) (citations, emphasis, and internal quotation marks

omitted). To demonstrate prejudice, a defendant must show “that

counsel’s errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

“[D]efendants claiming ineffective assistance of counsel [are

required] to affirmatively prove both prongs of the Strickland test

to prevail. As a result, it is not necessary for us to address both

components of the inquiry if we determine that a defendant has

made an insufficient showing on one.” Archuleta v. Galetka, 2011 UT

73, ¶ 41, 267 P.3d 232 (citations and internal quotation marks

omitted).

A. Reasonable Doubt Instructions

¶15 Ellis contends that the jury instructions that defined the

reasonable doubt standard—Instructions 16, 17, and 18—framed

the State’s burden as “no different from the standards applicable to
State v. Ellis

20120444-CA 8 2014 UT App 185

a civil trial” and that his trial counsel was ineffective for failing to

object to these misstatements of law. Ellis contends that his trial

counsel should have requested that the court use the “safe harbor”

reasonable doubt instruction adopted by the Utah Supreme Court

in State v. Reyes, 2005 UT 33, 116 P.3d 305.

¶16 The instruction promulgated in Reyes reads,

“The [State] has the burden of proving the defendant

guilty beyond a reasonable doubt. Some of you may

have served as jurors in civil cases, where you were

told that it is only necessary to prove that a fact is

more likely true than not true. In criminal cases, the

[State’s] proof must be more powerful than that. It

must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves

you firmly convinced of the defendant’s guilt. There

are very few things in this world that we know with

absolute certainty, and in criminal cases the law does

not require proof that overcomes every possible

doubt. If, based on your consideration of the

evidence, you are firmly convinced that the

defendant is guilty of the crime charged, you must

find him guilty. If on the other hand, you think there

is a real possibility that he is not guilty, you must

give him the benefit of the doubt and find him not

guilty.”

Id. ¶ 37 (alterations in original) (quoting Victor v. Nebraska, 511 U.S.

1, 27 (1994) (Ginsburg, J., concurring in part and concurring in the

judgment)).

¶17 While the Utah Supreme Court endorsed the use of the

above-quoted language in a reasonable doubt instruction, it

explicitly did not require that trial courts use this language, stating

in a subsequent case, “‘[T]he Constitution does not require that any

particular form of words be used in advising the jury of the

government’s burden of proof.’” See State v. Austin, 2007 UT 55, ¶ 6,
State v. Ellis

5. Ellis also claims that the errors in the reasonable doubt jury

instructions amount to structural errors upon which his trial

counsel’s prejudice should be presumed. See State v. Cruz, 2005 UT

45, ¶ 17, 122 P.3d 543 (“Erroneous reasonable doubt instructions . . .

give rise to structural errors, which are different than gardenvariety trial errors. Structural errors are flaws in the framework

within which the trial proceeds, rather than simply an error in the

trial process itself. . . . [A] structural error analysis presumes

prejudice.” (citations and internal quotation marks omitted)). This

(continued...)

20120444-CA 9 2014 UT App 185

165 P.3d 1191 (quoting Victor, 511 U.S. at 5); see also Victor, 511 U.S.

at 5 (recognizing that “the Constitution neither prohibits trial

courts from defining reasonable doubt nor requires them to do so

as a matter of course”). Rather, our supreme court has required

“only that the instructions, taken as a whole, correctly

communicate the principle of reasonable doubt, namely, that a

defendant cannot be convicted of a crime except upon proof

beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” Austin, 2007 UT 55, ¶ 6 (citation

and internal quotation marks omitted).

¶18 Here, the jury instructions read as a whole properly and

adequately convey the concept of reasonable doubt. Instruction 15

explains that it is the prosecution’s burden to prove Ellis’s guilt

beyond a reasonable doubt, that Ellis is not required to prove his

innocence, and that the jury must presume his innocence from the

start. Instruction 16 then explains that the jurors cannot “give up

[the] assumption the defendant is innocent [unless they are]

convinced that the defendant’s guilt has been proven beyond a

reasonable doubt.” Instructions 16, 17, and 18 explain in greater

detail what makes a doubt “reasonable,” and the elements

instruction for each charged offense reiterates that before the jury

can find Ellis guilty of the offense, it “must find from all of the

evidence and beyond a reasonable doubt each and every one of the

. . . elements of that offense.” Accordingly, any objection to the

instructions based on the “safe harbor” language from Reyes would

have been futile. Trial counsel did not perform deficiently by failing

to raise a futile objection. See State v. Kelley, 2000 UT 41, ¶ 26, 1 5
State v. Ellis

5. (...continued)

argument necessarily fails in light of our determination that the

reasonable doubt jury instructions were not flawed.

20120444-CA 10 2014 UT App 185

P.3d 546 (“Failure to raise futile objections does not constitute

ineffective assistance of counsel.”).

B. Cohabitant Instruction

¶19 Last, Ellis argues that his trial counsel was ineffective for

failing to object to the definition of “cohabitant” contained in the

jury instructions. Ellis contends that because the jury instructions

in his “case incorporated the same type of cohabitant definitions”

as the jury instructions in State v. Watkins, 2013 UT 28, 309 P.3d 209,

the supreme court’s “concern” expressed in Watkins also exists

here.

¶20 In Watkins, the defendant was convicted of aggravated

sexual abuse of a child under Utah Code section 76-5-404.1(4)(h).

Watkins, 2013 UT 28, ¶ 1. The aggravated component was based on

the defendant being an adult cohabitant of the victim’s father by

virtue of his “temporarily staying in the spare bedroom of [the

victim’s] father’s house.” Id. The State theorized that the

defendant’s “status as an adult cohabitant of [the victim’s father]”

placed him in “a position of special trust” in relation to the child

victim. Id. ¶ 7 (citation and internal quotation marks omitted). The

term “cohabitant” was not defined in the statute under which the

defendant was charged, and as a result, the jury instructions

employed the definition provided in the Cohabitant Abuse Act. Id.

¶ 32 n.2. The Utah Supreme Court, in vacating the defendant’s

conviction, noted that the definition of cohabitant found in the

Cohabitant Abuse Act, “has been specifically rejected by case law

in other contexts.” Id. The court then stated, “[The defendant’s trial]

counsel’s failure to dispute the jury instruction’s definition of a

cohabitant raises possible concerns about his effectiveness.” Id. Ellis

relies on the supreme court’s observation of “possible concerns

about [counsel’s] effectiveness” in Watkins as proofthat his counsel

in this case was ineffective.
State v. Ellis

20120444-CA 11 2014 UT App 185

¶21 Watkins is inapposite. Here, we are faced with an

enhancement of a domestic violence charge based on Ellis’s

relationship as a cohabitant of Mother pursuant to Utah Code

section 77-36-1, which specifically incorporates the definition of

cohabitant from the Cohabitant Abuse Act. See Utah Code Ann.

§ 77-36-1(1) (LexisNexis 2012) (“‘Cohabitant’ has the same meaning

as in Section 78B-7-102 [of the Cohabitant Abuse Act].”). Without

more, we fail to see how these statements from Watkins extend

beyond the parties in that case. Ellis has done little more than note

the similarities between that case and his own. He has not

demonstrated how the supreme court’s observation in Watkins

establishes his own counsel’s deficient performance. Indeed, Ellis

admits that the language he relies on from Watkins is dicta and that

theWatkins court did not adopt a definition of cohabitant. Likewise,

Ellis’s recognition that cohabitation constitutes a “critical element”

in two of the charges against him does not prove that he was

actually prejudiced by the definition of cohabitant provided to the

jury. Accordingly, because Ellis has not demonstrated either prong

of the Strickland test here, we reject his argument that his trial

counsel was ineffective for failing to object to the jury instruction

defining “cohabitant.”

CONCLUSION

¶22 The trial court did not err by denying Ellis’s motion to

dismiss the aggravated kidnapping charge, and Ellis has not

demonstrated that his trial counsel provided ineffective assistance

by failing to object to the reasonable doubt jury instructions and the

jury instruction defining the term “cohabitant.” We affirm.