2015 UT App 27

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

JAMES RAPHAEL SANCHEZ,

Defendant and Appellant.

Opinion

No. 20130276-CA

Filed February 5, 2015

Third District Court, Salt Lake Department

The Honorable Denise P. Lindberg

No. 111903658

Ralph W. Dellapiana, Peter Daines and John B. 

Plimpton, Attorneys for Appellant

Sean D. Reyes and Tera J. Peterson, Attorneys

for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES

GREGORY K. ORME and JOHN A. PEARCE concurred.

ROTH, Judge:

¶1 Defendant James Raphael Sanchez appeals his convictions 

for aggravated kidnapping and for assault with substantial 

bodily injury. Sanchez argues that the court erred when it failed 

to merge his convictions and when it failed to provide the jury 

with his proposed kidnapping-related jury instruction. We 

affirm.
State v. Sanchez

20130276-CA 2 2015 UT App 27

BACKGROUND

¶2 In April 2011, A.J. was asleep in the apartment she shared 

with Sanchez. Sanchez woke her up to ask if a friend could stay 

over, and she said no. Sanchez became violent, hitting and biting

A.J. and pulling her hair. A.J. was able to escape from the 

apartment and ran down the hallway to a neighboring 

apartment where she pounded on the door seeking help. The 

woman who opened the apartment door (Neighbor) testified 

that A.J. was clothed in only a shirt and underwear and was 

crying and ‚panicky.‛ Neighbor attempted to help A.J. inside, 

but Sanchez appeared at the door and grabbed A.J. by the wrist 

saying, ‚Come on baby, let’s go.‛ A.J. tried to free herself from 

Sanchez’s grasp, dropping to the floor and screaming for him to 

let go, but Sanchez dragged A.J. approximately fifty-eight feet 

back down the hallway to the apartment from which she had 

just escaped, then pulled her inside and shut the door. Neighbor 

followed after them, beating on the door and yelling at Sanchez 

to let A.J. out. She also called the police. Neighbor could hear

A.J. crying and telling Sanchez, ‚Stop, you’re hurting me.‛ 

Neighbor also heard a sound that Neighbor thought was

Sanchez slamming A.J.’s head into the wall.

¶3 Several minutes later, Sanchez shoved A.J. out of the 

apartment and back into the hallway. Now there was a bite mark 

on her cheek, and her ear was nearly ripped off. A.J. was covered 

in blood and bite marks, and she was transported to the hospital 

to be treated for her injuries. She gave police a written statement 

briefly describing what Sanchez had done:

I was asleep and James Sanchez came home 

and asked me if his friend could stay over and [I]

said no and he became violent first pulled my hair 

and then continued to bite, slap, my head, and bit 

on to my ear and ripped it. Then he bit my face.
State v. Sanchez

20130276-CA 3 2015 UT App 27

¶4 Sanchez was charged with aggravated kidnapping and 

assault with substantial bodily injury. Before trial, he asked for a 

supplemental jury instruction informing the jury it must find 

that ‚the unlawful detention or movement of the victim must be 

significantly independent of the crime of assault‛ in order to 

reach a conviction on the aggravated kidnapping charge. The 

proposed supplemental instruction also contained three 

factors—known as the Finlayson factors1—to help the jury 

determine if the evidence supported convictions for both 

aggravated kidnapping and assault, or just assault. The trial 

court denied the request, stating that Sanchez was essentially 

asking the jury to determine the issue of merger and that merger 

was a decision properly reserved for the trial court following the 

entry of convictions by the jury. The jury convicted Sanchez of 

both charges, and he requested that the trial court merge the two 

convictions. The court denied his motion. Sanchez appeals.

ISSUES AND STANDARDS OF REVIEW

¶5 Sanchez first argues that the trial court erred when it 

failed to merge his convictions.2 Merger is a question of law, 

which we review for correctness. State v. Diaz, 2002 UT App 288, 

¶ 10, 55 P.3d 1131.

 

1. See State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243.

2. Sanchez argues that the trial court erred in alternatively ruling 

that even if merger were appropriate, his assault conviction 

would merge into his aggravated kidnapping conviction rather 

than the other way around. Because we affirm the trial court’s 

decision and determine that merger was inappropriate, we do

not reach this issue.
State v. Sanchez

20130276-CA 4 2015 UT App 27

¶6 Sanchez next argues that the trial court erred when it 

declined to provide the jury with his proposed instruction.

‚[T]he refusal to give a jury instruction is reviewed for abuse of 

discretion,‛ though the amount of deference varies depending 

on the type of issue presented. State v. Berriel, 2013 UT 19, ¶ 8, 

299 P.3d 1133 (citation and internal quotation marks omitted). 

‚On issues that are primarily or entirely factual, we afford 

significant deference; on issues that are primarily or entirely 

legal in nature, we afford little or no deference.‛ Id. The 

proposed jury instruction in this case required the trial court to 

determine whether merger is a question best resolved by a jury 

or by a judge, a determination we conclude was legal in nature.

ANALYSIS

I. Merger

¶7 Sanchez argues that the trial court should have merged 

his assault and aggravated kidnapping convictions because his 

detention of A.J. had no significance independent from the 

assault. We find no error in the court’s decision not to merge the 

two convictions.

¶8 The doctrine of merger seeks to avoid a circumstance 

where ‚a criminal defendant could be punished twice for 

conduct that amounts to only one offense.‛ State v. Lee, 2006 UT 

5, ¶ 31, 128 P.3d 1179. Thus, ‚[w]here 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.‛ Id. In particular, merger can 

become an issue where ‚a defendant . . . has been charged with 

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.‛ 

State v. Diaz, 2002 UT App 288, ¶ 17, 55 P.3d 1131.
State v. Sanchez

20130276-CA 5 2015 UT App 27

¶9 In State v. Finlayson, 2000 UT 10, 994 P.2d 1243, the Utah 

Supreme Court adopted a three-part test to determine whether a 

kidnapping conviction can stand on its own under circumstances

where, as in the case before us, ‚a taking or confinement is 

alleged to have been done to facilitate the commission of another 

crime.‛ Id. ¶ 23 (citation and internal quotation marks omitted).

The court held,

[T]o 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. (citation and internal quotation marks omitted). Sanchez 

argues that ‚*a+ny detention accompanying *the assault+ was a 

side effect that is not significant enough, in and of itself, to justify 

a separate conviction for aggravated kidnapping.‛ Our case law 

provides useful guidance on how the Finlayson factors are to be 

applied.

¶10 In Finlayson, the defendant sexually assaulted a woman in 

his apartment. Id. ¶¶ 3–4. As the assault unfolded, she made 

unsuccessful efforts to escape, and the defendant ultimately 

handcuffed her to facilitate the sexual crime. Id. ¶ 4. After the 

assault, the defendant made the victim wait for ten minutes 

while he dressed before taking her home. Id. ¶ 5. As they left his 

apartment, Finlayson covered the victim’s head with a jacket so 

she would not see the address and then took an unnecessarily 

long route back to her home, where he finally released her. Id. A 

jury convicted the defendant of rape, forcible sodomy, and 
State v. Sanchez

20130276-CA 6 2015 UT App 27

aggravated kidnapping. Id. ¶¶ 1, 13. For purposes of analyzing 

Finlayson’s claim that the trial court had erred in refusing to 

merge the kidnapping conviction into the sexual assault 

convictions, the Utah Supreme Court broke the events of the 

night into two components. Id. ¶¶ 7, 22–23, 32–35. First, the court 

concluded that ‚there was no detention prior to or during the 

sexual assault that exceeded the detention inherent in the sex 

crimes,‛ and thus Finlayson’s ‚detention of the victim up to the 

time of the rape and sodomy was incidental to the assault, rather 

than having an independent significance.‛ Id. ¶¶ 22–23. The 

court then examined Finlayson’s actions following completion of 

the sexual assault and determined that ‚the detention appears 

sufficient to support‛ an independent kidnapping conviction 

because his detention of the victim during the combined tenminute wait at his apartment and the hour-long car ride was 

substantially longer than necessary for the commission of the 

underlying crimes. Id. ¶¶ 32–33.3

¶11 Later, in State v. Lee, 2006 UT 5, 128 P.3d 1179, the 

supreme court considered whether a defendant’s aggravated 

kidnapping conviction should merge with one of his aggravated 

assault convictions in a case that has some useful similarities to 

the case before us. See id. ¶ 1. The defendant had approached 

two women walking along a highway. Id. ¶ 3. He invited them 

to ‚‘party’‛ with him and offered to purchase alcohol. Id. The 

women declined, and the defendant then grabbed one of the 

women, sexually assaulting her. Id. ¶¶ 3–4. After she broke free, 

 

3. The supreme court affirmed this court’s reversal of aggravated

kidnapping because there was insufficient evidence to support 

the State’s theory that the defendant’s actions were done to 

‚‘facilitate flight’ from the commission of the sex crimes,‛ the 

only aggravating factor presented. Finlayson, 2000 UT 10, ¶¶ 32, 

35 (citing Utah Code Ann. § 76-5-302 (Michie 1995) (aggravated 

kidnapping statute)).
State v. Sanchez

20130276-CA 7 2015 UT App 27

the two women ran away. Id. ¶ 4. ‚Then, thinking that their 

encounter with [the defendant] was over, [they] slowed their 

pace to a walk.‛ Id. The defendant ran up from behind, 

slamming the woman he had assaulted to the pavement. Id. He

then dragged her across the highway and into an alley ‚where 

he kicked her repeatedly in the head‛ and pulled down her 

pants. Id. The other woman tried to intervene, but the defendant 

slammed her to the ground as well, kicking her in the face. Id.

¶ 5. The supreme court determined that the defendant’s 

detention of the first woman by dragging her across the highway 

was not ‚‘slight, inconsequential and merely incidental’ to the 

assault.‛ Id. ¶ 34 (quoting Finlayson, 2000 UT 10, ¶ 23). Nor was 

the defendant’s movement of the victim ‚‘inherent in the 

nature’‛ of the assault he committed. Id. (quoting Finlayson, 2000 

UT 10, ¶ 23). ‚Indeed, most assaults do not involve the 

relocation of the victim from one site to another.‛ Id. Finally, the 

court determined that the defendant’s recapture and relocation 

of the victim made commission of the assault easier because it 

removed the woman from her friend and made detection by 

others less likely. Id.

¶12 The facts of the assault in the case before us align more 

readily with Lee than with Finlayson. Here, A.J. escaped from the 

apartment after Sanchez’s first assault and sought refuge in the 

neighboring apartment down the hall. But Sanchez pursued her 

and, before Neighbor could pull A.J. inside, grabbed A.J. by the 

wrist and dragged her back down the hall fifty-eight feet to their 

apartment, where he closed the door and escalated his attack. 

Sanchez argues that the assault was simply one continuous act. 

But we conclude that, as in Lee, A.J. interrupted the attack by 

breaking free from Sanchez, escaping the apartment, and then 

seeking refuge with Neighbor. See id. Thus, Sanchez’s recapture 

of A.J. and his dragging her down the hallway and back inside 

their apartment was not ‚slight, inconsequential and merely 

incidental‛ to the assault. See Finlayson, 2000 UT 10, ¶ 23 (citation 

and internal quotation marks omitted). Neither was Sanchez’s 

movement of the victim ‚inherent in the nature‛ of the assault. 
State v. Sanchez

20130276-CA 8 2015 UT App 27

See id. (citation and internal quotation marks omitted). Indeed, it 

appears that Sanchez’s motivation in taking A.J. back to their 

own apartment was to remove her from any help that Neighbor 

was trying to offer. As in the very similar circumstances of Lee, 

these actions made it easier for Sanchez to commit the second 

assault. See 2006 UT 5, ¶ 34; Finlayson, 2000 UT 10, ¶ 23 (holding 

that in order to support a separate conviction for aggravated 

kidnapping, the assailant’s detention must have made the 

assault ‚substantially easier‛ to commit (citation and internal 

quotation marks omitted)).

¶13 Sanchez argues that relocating A.J. did not make the 

assault easier to commit because, unlike in Lee where the victim’s 

friend had physically intervened and had made assault on one 

side of the highway more difficult for the defendant, see 2006 UT 

5, ¶ 5, Sanchez ‚had little to no difficulty assaulting [A.J.] in the 

immediate presence of *Neighbor+.‛ In essence, Sanchez argues 

that because Neighbor’s efforts to intervene were futile, his 

convictions should merge, implying that had Neighbor been able 

to physically place herself between Sanchez and A.J. then merger 

would be inappropriate. But Neighbor’s ability to interfere is 

immaterial to our analysis. Here, Sanchez dragged his victim 

away from the only source of aid then available to a place 

behind a locked door. It is no stretch to infer that by so doing he 

intended to make his ‚crime substantially easier of 

commission‛—and to conclude that it was, in fact, easier to 

commit—than had he tried to accomplish the same crime at the 

door of the Neighbor’s apartment, in the face of her protests, or 

elsewhere in the hallway where others might have seen and 

intervened. See Finlayson, 2000 UT 10, ¶ 23 (citation and internal 

quotation marks omitted).

¶14 Sanchez also argues that his dragging A.J. down the 

hallway to their apartment should not have played a part in the 

merger analysis. The trial court considered Sanchez’s movement 

of A.J.—roughly fifty-eight feet—as a factor in its decision to 

deny Sanchez’s merger request, ruling that ‚dragging . . . was 
State v. Sanchez

20130276-CA 9 2015 UT App 27

not ‘inherent in the nature’ of the assault.‛ (Quoting State v. 

Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243.) And the State argues 

on appeal that Sanchez’s act of dragging A.J. supports a 

determination that Sanchez’s detention of A.J. had ‚significance

independent of the assault‛ and was ‚not slight or 

inconsequential‛ or ‚inherent in the nature of the assault.‛ 

Sanchez argues that any movement of A.J. is an improper basis 

for denying merger ‚because the jury was not instructed on it.‛

Sanchez points to Jury Instruction No. 16, which defines 

kidnapping as having ‚detained or restrained‛ a person 

unlawfully against her will ‚for a substantial period of time, 

or . . . in circumstances that exposed her to risk of bodily injury‛ 

and does not mention movement as an element of the crime. He 

thus argues that his kidnapping conviction could not have been 

‚based on a jury finding beyond a reasonable doubt that he 

moved [A.J.] any distance, but [only] that he detained or 

restrained her.‛ Sanchez argues that with no finding from the 

jury to support a conclusion that he moved A.J., any reliance by 

the trial court on movement as a basis to deny merger was error.

¶15 But Sanchez ignores Jury Instruction No. 22, which states,

‚‘Detain’ or ‘restrain’ mean*s+ keep from proceeding, delay, keep 

in custody, confine, control, check, repress, limit, or restrict.‛ 

Common experience teaches that one person can detain or 

restrain another in the ways described in the instruction just as 

effectively by moving her away from where she wants to go as 

by confining her to a place she does not want to be. Accordingly, 

we agree with the State that the jury easily could have found 

Sanchez’s movement of A.J. from just outside Neighbor’s 

apartment, down the hallway, and into their apartment to have 

been for the purpose of keeping A.J. ‚in custody‛ and ‚from 

proceeding,‛ as well as for confining, controlling, checking, 

repressing, limiting, or restricting her—all proper considerations 

on which a kidnapping conviction could be based. And the 

supreme court, in both Finlayson and Lee, seemed to treat the 

defendants’ movement of the victims simply as a form or 

variation of detention. See Lee, 2006 UT 5, ¶¶ 27, 34 (establishing 
State v. Sanchez

20130276-CA 10 2015 UT App 27

that kidnapping occurs when there is ‚movement or 

confinement‛ and observing that most assaults do not require 

relocating the victim); Finlayson, 2000 UT 10, ¶¶ 23, 32–33

(determining that the detention involved in moving the victim 

from one room to another in the course of committing the crime 

was inherent in the sexual assault but driving the victim on a 

circuitous route to a release point after the assault had been 

completed was not). Thus, the trial court was fully justified in 

taking Sanchez’s ‚movement‛ of the victim into account as part 

of the circumstances it considered in denying Sanchez’s request 

to merge his convictions.

¶16 We therefore conclude that the trial court did not err in 

refusing to merge Sanchez’s kidnapping and assault 

convictions.4

II. Proposed Jury Instruction

¶17 Sanchez next argues that the trial court erred when it 

refused to give a supplemental jury instruction he proposed. 

‚Failure to give requested jury instructions constitutes reversible 

error only if their omission tends to mislead the jury to the 

prejudice of the complaining party or insufficiently or 

erroneously advises the jury on the law.‛ State v. Stringham, 2001 

UT App 13, ¶ 17, 17 P.3d 1153 (citation and internal quotation 

marks omitted). After reviewing the proposed instruction, we 

conclude that Sanchez suffered no prejudice due to its omission 

 

4. The State argues that the Finlayson analysis does not apply to 

this case because of amendments made to Utah’s aggravated 

kidnapping statute since Finlayson was issued. However, 

because Sanchez has not demonstrated error in the trial court’s 

merger ruling, we need not consider this argument because we 

can affirm on an alternative ground. 
State v. Sanchez

20130276-CA 11 2015 UT App 27

and that the jury was not insufficiently or erroneously advised 

on the law.

¶18 Jury Instruction No. 16 instructed the jury that it should 

find Sanchez guilty of aggravated assault if it found

1. That [Sanchez]

2. In the course of committing:

3.A. UNLAWFUL DETENTION, meaning 

that he:

(1) intentionally or knowingly,

(2) without authority of law,

(3) and against the will of [A.J.],

(4) detained or restrained her;

OR

3.B. KIDNAPING, meaning that he:

(1) intentionally or knowingly,

(2) without authority of law,

(3) and against the will of [A.J.],

(4) (a) detained or restrained her for a 

substantial period of time, or

(b) detained or restrained her in 

circumstances that exposed her to risk of 

bodily injury;

4. He acted with the intent to inflict bodily 

injury on or to terrorize [A.J.]; AND

5. [Sanchez] and [A.J.] were co-habitants at 

the time of the offense.

Sanchez does not dispute that this instruction correctly sets forth 

the requirements of Utah’s aggravated kidnapping statute. See 

Utah Code Ann. § 76-5-302 (LexisNexis Supp. 2014) (aggravated 

kidnapping); see also id. § 76-5-301 (2012) (kidnapping); id. § 76-5-

304 (unlawful detention).
State v. Sanchez

20130276-CA 12 2015 UT App 27

¶19 Prior to trial, however, Sanchez proposed a supplemental 

instruction that instructed the jury on the three factors set forth 

in Finlayson as a test for whether two crimes should merge:

In considering whether [Sanchez] is guilty of 

both of the charges before you, Aggravated 

Kidnapping and Assault, or of Assault only, you 

are instructed as follows:

In order to justify a separate conviction for 

Aggravated Kidnapping, the unlawful detention or 

movement of the victim must be significantly 

independent of the crime of Assault. That is, the 

resulting movement or confinement:

1. Must not be slight, inconsequential or 

merely incidental to the Assault, AND

2. Must not be of the kind inherent in the 

nature of the crime of Assault, AND

3. Must have some significance independent 

of the crime of Assault that it makes the 

other crime substantially easier in 

commission or substantially lessens the risk 

of detection. 

Sanchez argued that this instruction was necessary to help the 

jury determine ‚whether there was a kidnapping when there is 

also an assault alleged.‛ The State argued that the proposed 

instruction asked the jury to decide the question of merger, an 

issue to be resolved by the trial court and then only after the jury 

had returned convictions for both crimes. The trial court agreed, 

ruling that the factors set forth in the proposed instruction were 

‚instruction to the judge to consider in the course of making a 

legal determination[, a]nd as a result it was not something that 

was appropriate for the jury to consider.‛ We agree.

¶20 As we have noted, ‚*t+he trial court cannot assess 

whether, under the particular facts of the case, one charge 

merges into another until the prosecution has presented its case 
State v. Sanchez

20130276-CA 13 2015 UT App 27

and the jury has convicted the defendant of multiple charges. To 

rule otherwise would provide protection against a danger that 

does not exist.‛ State v. Lopez, 2004 UT App 410, ¶ 8, 103 P.3d 

153; accord State v. Ellis, 2014 UT App 185, ¶ 12, 336 P.3d 26. On 

appeal, however, Sanchez contends that his proposed jury 

instruction was necessary to prevent him from being doubly 

punished for the same act. Without the instruction, he argues, 

the jury was not required to find that any detention or restraint,

as defined in the aggravated kidnapping instruction, was 

‚significantly independent‛ from the detention inherent in the 

underlying assault. In this regard, Sanchez urges us to adopt an 

approach that allocates to the jury, and not the judge,

responsibility for resolving the question of whether facts 

fulfilling the elements of a kidnapping statute are instead 

‚incidental‛ to an underlying crime.5 Sanchez also cites a 

number of cases that require a narrow interpretation of 

 

5. Sanchez argues that this approach has been adopted in other 

jurisdictions and cites cases in support of his proposition. See

Alam v. State, 776 P.2d 345, 348–49 (Alaska Ct. App. 1989); State v. 

Rich, 305 N.W.2d 739, 742 (Iowa 1981); People v. Adams, 205 

N.W.2d 415, 423 (Mich. 1973). But only Adams seems to explicitly 

allocate the merger issue to the jury rather than the trial court. 

205 N.W.2d at 424. The other cases Sanchez cites simply 

underscore the idea that, if not construed narrowly, some 

kidnapping statutes pose a real risk of doubly punishing a 

defendant who has been charged with both kidnapping and 

another offense involving some form of detention in its 

commission. See, e.g., Alam, 776 P.2d at 348–49 (holding that 

Alaska’s legislature did not intend its kidnapping statute to be 

interpreted as broadly as the literal language indicated); Rich, 

305 N.W.2d at 745 (holding that the terms ‚confines‛ and 

‚removes‛ in the Iowa kidnapping statute require ‚more than 

the confinement or removal that is an inherent incident of 

commission‛ of the underlying crime).
State v. Sanchez

20130276-CA 14 2015 UT App 27

kidnapping statutes in order to prevent a defendant from being 

doubly punished, in his words, ‚limiting their application to 

situations where the detention or movement is significantly 

independent of the underlying crime.‛ See, e.g., People v. Daniels, 

459 P.2d 225, 231–32 (Cal. 1969) (narrowly interpreting 

California’s kidnapping statute to apply only when movement of 

the victim is more than ‚incidental to the alleged assault‛), 

superseded by statute as recognized in People v. Robertson, 146 Cal. 

Rptr. 3d 66 (Cal. Ct. App. 2012); State v. Goodhue, 2003 VT 85, 

¶ 11, 833 A.2d 861 (explaining the development of the 

‚narrowing of the applicability of kidnapping laws‛).

¶21 We agree with Sanchez that careful interpretation of 

kidnapping statutes is crucial to prevent two convictions from 

inappropriately arising out of a single course of conduct. See

State v. Couch, 635 P.2d 89, 92 (Utah 1981) (observing that ‚many 

courts have reassessed kidnaping statutes during the past two 

decades‛ and concluding that Utah’s narrowly drafted 

kidnapping statute permits a conviction only if ‚the kidnaping is 

not merely incidental or subsidiary to some other crime‛). 

Indeed, our supreme court adopted the Finlayson factors for this 

very purpose—to ensure that the detention supporting a 

kidnapping conviction has ‚independent significance‛ from any 

detention inherent in the underlying crime so that two 

convictions do not arise from the same course of conduct. See 

State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243 (holding that 

the detention supporting aggravated kidnapping must have 

significant independence from the underlying crime because ‚to 

hold otherwise would transform virtually every rape and 

robbery into a kidnaping as well‛). But Utah precedent is clear 

that it is the role of the trial court, not the jury, to apply these 

factors and to act as the watchman against an unjust outcome by 

determining whether merger should occur. And Utah precedent 

is also clear that this process is to take place only after the jury 

has returned two pertinent convictions. At that point, the jury 

has decided that the circumstances of the case fulfill the elements 

of two separate crimes and has necessarily resolved any 
State v. Sanchez

20130276-CA 15 2015 UT App 27

questions of fact accordingly. Only then does the question of

whether the facts that support the two convictions also require 

their merger arise. And that kind of determination is one which 

we traditionally entrust to judges because it requires the exercise 

of judgment in applying the law to what are by then established 

facts. Sanchez has not persuaded us that there is any weakness 

in this approach that justifies a departure from established 

precedent.

¶22 We therefore conclude that the trial court correctly 

instructed the jury on the law applicable to aggravated 

kidnapping and did not err in deciding the issue of merger itself 

following Sanchez’s convictions. We accordingly find no abuse 

of discretion in the trial court’s decision to reject the proposed 

supplemental jury instruction.

CONCLUSION

¶23 We conclude that merging Sanchez’s convictions would 

be inappropriate under the Finlayson factors. We also conclude 

that the trial court did not abuse its discretion when it refused to 

send the question of merger to the jury by denying Sanchez’s 

proposed jury instruction. We affirm.