State v. Lesky

2021 UT App 67THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ANDREW JAMES LESKY,
Appellant.
Opinion
No. 20160941-CA
Filed June 24, 2021
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 141101018
Peter A. Daines, Attorney for Appellant
Sean D. Reyes and John J. Nielsen,
Attorneys for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
HAGEN, Judge:
¶1 After a bad break-up, Andrew James Lesky pulled a gun
on his former girlfriend (the ex-girlfriend) and her then
boyfriend (the boyfriend). Lesky was charged with multiple
crimes, including attempted aggravated murder and aggravated
kidnapping. During trial, Lesky chose to represent himself with
the occasional help of an attorney (standby counsel). On the
attempted aggravated murder count, the jury ultimately
convicted Lesky of a lesser included offense of aggravated
assault, but it convicted him as charged on the aggravated
kidnapping count. Lesky now appeals through counsel, arguing
that those two convictions should have been merged, that his
State v. Lesky
right to self-representation was violated, and that the district
court abused its discretion in excluding evidence. We affirm.
BACKGROUND
¶2 Lesky and the ex-girlfriend met online and began dating.
For years, the two had a volatile relationship during which the
ex-girlfriend claimed Lesky threatened and stalked her. The ex-
girlfriend ultimately broke up with Lesky and began dating the
boyfriend. According to the ex-girlfriend, Lesky then turned his
anger on the boyfriend.
¶3 One October evening in 2014, tensions came to a head.
The ex-girlfriend and the boyfriend were sitting on the top step
of her porch when Lesky walked up the sidewalk, turned
toward them, and pulled a gun from his pocket. At that point,
according to the ex-girlfriend, “[Lesky] pointed the gun at us
and told us to get inside.” The boyfriend confirmed, “[Lesky]
proceeded to tell both of us to get into the house, and we both
refused several times. This went on for a while over and over,
[him] trying to get us in the house and [us] refusing.”
¶4 Although the ex-girlfriend was “terrified,” she got up,
and “stood in between” Lesky and the boyfriend, who remained
seated behind her. The boyfriend testified, “[Lesky] was aiming
at me and [the ex-girlfriend] was directly in between us, so [the
gun was] not more than a foot away from her face.” According
to the ex-girlfriend, Lesky then told her “that if [she] didn’t get
in the house, he was going to shoot [her],” but she refused,
fearing that if she did, Lesky would “kill [her] and nobody
would see it.”
¶5 The ex-girlfriend testified that when she did not comply,
Lesky held the barrel of the gun against the left side of her
forehead. She closed her eyes and thought of her children as she
20160941-CA 2 2021 UT App 67State v. Lesky
“heard a click.” The boyfriend also testified that, at some point
during the exchange, he “heard a very distinct sound. It sounded
like the firing pin went off. [It was] a very high pitch, metal on
metal.”
¶6 Fortunately, the firearm did not discharge. Instead, Lesky
“hit [the ex-girlfriend] with the butt of the gun on [her] nose,”
knocking her to the ground. Lesky dropped the gun, and the ex-
girlfriend grabbed it. She pointed it at Lesky and threatened to
shoot him unless he left.
¶7 At that point, the ex-girlfriend saw her neighbor come
around the corner. The ex-girlfriend lived on the main floor of a
house, while the neighbor and his wife lived in the basement
apartment of the same house. The neighbor testified that, from
inside the apartment he had heard Lesky tell the ex-girlfriend to
“get into the house, in a very angry tone,” and he decided to
come outside when he heard a “general feeling of terror” in the
ex-girlfriend’s voice. As the neighbor “rounded the corner, [he]
saw [the ex-girlfriend] sitting on the steps of the front porch, and
. . . Lesky standing a short distance away facing her.” The
neighbor yelled at Lesky, who turned and made some sort of
verbal threat in response. The neighbor testified that Lesky
turned back to the ex-girlfriend and reached toward her, saying,
“[G]ive me the gun.” The neighbor then noticed the gun in the
ex-girlfriend’s hand and saw Lesky grab her in a bear hug as
they struggled over the gun. The neighbor, fearing for his life,
retreated to the basement apartment, locked his door, and told
his wife to call the police.
¶8 During the continued struggle over the gun, Lesky picked
up the ex-girlfriend under her arms and threw her toward a tree.
The ex-girlfriend tossed the gun toward the boyfriend but she
did not see where it landed. The neighbor testified that after he
went back inside he stood by a window, listened, and heard a
“click, click.” He speculated that the sound was one of three
20160941-CA 3 2021 UT App 67State v. Lesky
things: “a round being racked into the chamber,” the gun being
“dropped on the cement,” or “a misfire.”
¶9 Once she managed to regain her feet, the ex-girlfriend
saw that Lesky and the boyfriend were fighting in the street. The
ex-girlfriend saw “a shimmer of a blade” and told the boyfriend,
“[H]e’s got a knife.” She heard Lesky say, “[D]on’t make me stab
you,” and she “saw [him] swing the blade at [the boyfriend]. It
caught him on his side.” Later, the boyfriend discovered that the
knife appeared to have cut through the sweatshirt he was
wearing, but it did not break the skin. The boyfriend let Lesky
go, and Lesky ran away down the street. The boyfriend retrieved
the gun, and the ex-girlfriend called the police.
¶10 Lesky was arrested and charged in a six-count
information. Count 1 charged Lesky with attempted aggravated
murder, arising from the allegation that Lesky had put the gun
to the ex-girlfriend’s head and pulled the trigger. Counts 2 and 3
charged Lesky with aggravated kidnapping for holding the
boyfriend and the ex-girlfriend, respectively, at gunpoint. Count
4 charged Lesky with aggravated assault for allegedly slashing
at the boyfriend with a knife. 1 Counts 5 and 6 charged Lesky
with unlawful possession of the firearm and the knife,
respectively.
¶11 Several days into trial, Lesky filed a motion seeking to
represent himself. After a lengthy colloquy about the risks of
1. On appeal, the State’s brief suggests that the aggravated
assault charge in count 4 was “for pistol whipping [the ex-
girlfriend].” But in closing argument, the prosecutor said
“[Lesky] is charged with aggravated assault with a knife. We
know he used a knife; he slashed [the boyfriend’s] hoodie.” In
rebuttal, the prosecutor reiterated: “Count four, ag assault,
That’s for the slash. That’s for the slash.”
20160941-CA 4 2021 UT App 67State v. Lesky
self-representation and the role of standby counsel, the court
found that Lesky knowingly waived his right to counsel and
allowed him to represent himself with the assistance of standby
counsel. 2 For security reasons, the court suggested Lesky remain
at counsel table during trial, but Lesky objected, indicating that
he “would like to be allowed to be at the podium” where he
could turn and address the jury. The court granted the request
on the condition that approaching a witness with exhibits would
be done by standby counsel; Lesky indicated that was agreeable.
Lesky also asked how to make a record of any concerns that
arose during trial. The court advised him, “You can call for a
break outside the purview of the jury and we can make a record
of those concerns . . . without the jury present.”
¶12 At the end of trial, the jury was instructed on the elements
of each charged offense as well as various lesser included
offenses. Relevant to this appeal, on count 1, the jury was
instructed on the charged offense of attempted aggravated
murder as well as the lesser included offenses of attempted
murder and aggravated assault. The jury acquitted Lesky of
attempted aggravated murder and attempted murder, but it
convicted him of aggravated assault. On counts 2 and 3, the jury
was instructed on the charged offense of aggravated kidnapping
and the lesser included offense of aggravated assault. The jury
2. When a criminal defendant elects to defend himself pro se, the
court may appoint standby counsel “to aid the accused if and
when the accused requests help and to be available to represent
the accused in the event that termination of the defendant’s self-
representation is necessary. Particularly, standby counsel assists
the pro se defendant in overcoming routine procedural or
evidentiary obstacles to the completion of some specific task,
such as introducing evidence or objecting to testimony.” State v.
Rohwedder, 2018 UT App 182, ¶ 15, 436 P.3d 324 (cleaned up).
20160941-CA 5 2021 UT App 67State v. Lesky
convicted Lesky of aggravated kidnapping on both counts, as
charged. The jury acquitted Lesky of counts 4 and 6, both of
which related to the knife, and convicted him of unlawful
possession of a firearm on count 5. Lesky appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 On appeal, Lesky first argues that the district court
should have merged his aggravated assault conviction on
count 1 with his aggravated kidnapping conviction on count 3.
Lesky did not preserve this issue below, but contends that the
district court plainly erred in not sua sponte merging the
convictions. Plain error is an exception to the standard appellate
preservation requirement. State v. Johnson, 2017 UT 76, ¶ 19, 416
P.3d 443. A district court “plainly errs when it commits obvious,
prejudicial error.” State v. Roberts, 2019 UT App 9, ¶ 10, 438
P.3d 885.
¶14 Lesky next contends that the district court violated his
constitutional right to self-representation when it conducted
sidebar and in-chambers conferences outside his presence. We
do not reach the merits of this claim because it is unpreserved,
and Lesky has not argued any exception to the preservation
requirement. See State v. Reid, 2018 UT App 146, ¶ 40, 427 P.3d
1261 (“When a defendant fails to raise the issue before the
district court, the law of preservation controls and we review the
issues under established exceptions to the law of preservation,
namely, plain error, exceptional circumstances, or ineffective
assistance of counsel, if the appellant argues that one of these
exceptions appl[ies].”) (cleaned up).
¶15 Lesky’s final contention is that the district court
improperly excluded evidence that he claims was admissible
under rule 608 of the Utah Rules of Evidence. A district court has
“broad discretion to admit or exclude evidence, and we will
20160941-CA 6 2021 UT App 67State v. Lesky
disturb an evidentiary ruling only for an abuse of discretion.”
State v. Samora, 2021 UT App 29, ¶ 18, 484 P.3d 1206 (cleaned
up), petition for cert. filed, May 19, 2021 (No. 20210347).
ANALYSIS
I. Merger
¶16 Lesky argues that the district court plainly erred by not
merging his convictions on count 1 (aggravated assault) and
count 3 (aggravated kidnapping of the ex-girlfriend). “To prevail
on a claim of plain error,” a defendant must show that “(i) an
error exists; (ii) the error should have been obvious to the
[district] court; and (iii) the error is harmful.” State v. Bedell, 2014
UT 1, ¶ 20, 322 P.3d 697 (cleaned up).
¶17 The merger doctrine, as codified in Utah’s merger statute,
is designed “to protect criminal defendants from being twice
punished for committing a single act that may violate more
than one criminal statute.” State v. Bond, 2015 UT 88, ¶ 65,
361 P.3d 104 (cleaned up); see also Utah Code Ann. § 76-1-
402(1) (LexisNexis 2017). “The merger statute contains two
merger tests.” State v. Corona, 2018 UT App 154, ¶ 44, 436
P.3d 174 (cleaned up). Subsection (1) “addresses whether
the same criminal act forms the basis for multiple criminal
charges.” Id.; see Utah Code Ann. § 76-1-402(1). This is known
as the same act provision. See State v. Bowden, 2019 UT App 167,
¶ 25, 452 P.3d 503. Subsection (3) “addresses included offenses—
predominantly lesser-included offenses,” Corona, 2018 UT
App 154, ¶ 44 (cleaned up), and is known as the lesser
included offense provision, see Salt Lake City v. Josephson, 2019
UT 6, ¶ 24, 435 P.3d 255; see also Utah Code Ann. § 76-1-402(3).
Lesky argues that merger was plainly required under both
provisions.
20160941-CA 7 2021 UT App 67State v. Lesky
A. “Same Act” Analysis
¶18 Lesky first contends that the district court plainly erred by
failing to merge his aggravated assault conviction under count 1
with his aggravated kidnapping conviction under count 3,
arguing that “both convictions [were] based on the same act.”
Because we conclude that the two charges were not based on the
same act, the district court did not commit error, much less plain
error, by not merging the convictions.
¶19 The same act provision of Utah’s merger statute provides,
in relevant part,
A defendant may be prosecuted in a single
criminal action for all separate offenses arising out
of a single criminal episode; however, 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.
Utah Code Ann. § 76-1-402(1). “The clear intent of this section is
that a defendant may not be punished twice for the same act.”
State v. Casey, 2001 UT App 205, ¶ 16, 29 P.3d 25 (cleaned up),
aff’d,2003 UT 55, 82 P.3d 1106. Therefore, to assess whether the
provision applies, “we must determine if the conduct
supporting” the two charges constitutes the “same act” or
independent acts. See id. (cleaned up). “[A]cts are independent if
they are in no way necessary to each other or [are] sufficiently
separated by time and place.” Id. ¶ 17.
¶20 For example, in State v. Casey, 2001 UT App 205, 29 P.3d
25, the defendant was charged with aggravated assault and
attempted murder. Id. ¶ 5. The defendant had pointed a gun at
the victim who was seated in a parked car in a driveway. Id.
20160941-CA 8 2021 UT App 67State v. Lesky
¶ 18. When the defendant put the gun down, the victim fled into
the house. Id. A few minutes later, after the victim returned to
the car, the defendant backed his own car out of the driveway
and fired the gun at the victim while driving away. Id. ¶ 19. The
aggravated assault charge was based on pointing the gun at the
victim and was completed when the victim fled into the house.
Id. ¶ 18. In contrast, the aggravated murder charge was based on
the defendant discharging the gun as he drove away. Id. ¶ 19.
We held that the merger statute’s same act provision did not
apply because “the aggravated assault and attempted murder
were in no way necessary to each other and were separated by
time, place, and intervening circumstances.” Id. ¶ 20.
¶21 In our case, Lesky contends that “both counts arose from
the same criminal transaction,” namely, that Lesky “walked up
to the [ex-girlfriend and the boyfriend,] point[ed] a gun at them,
ordered them inside the house, held the gun to [the ex-
girlfriend’s] head, threatened her, and pulled the trigger.” Lesky
argues that the aggravated assault was necessary to the
aggravated kidnapping because Lesky held the ex-girlfriend at
gunpoint while threatening her. In contrast, the State contends
that “[t]he aggravated kidnapping was based on Lesky’s
pointing the gun at [the ex-girlfriend] and ordering her into the
house” whereas “the aggravated assault was based on his
putting the gun to her head and pulling the trigger.”
¶22 These two offenses “were in no way necessary to each
other.” See id. The aggravated kidnapping of the ex-girlfriend,
count 3, was accomplished when Lesky held the ex-girlfriend at
gunpoint, thereby restricting her movements. 3 The aggravated
3. A person commits aggravated kidnapping by using a
dangerous weapon “in the course of committing unlawful
detention or kidnapping.” Utah Code Ann. § 76-5-302(1)(a)
(LexisNexis Supp. 2020). A person commits unlawful detention
(continued…)
20160941-CA 9 2021 UT App 67State v. Lesky
assault, count 1, was accomplished by putting the gun to the ex-
girlfriend’s head and pulling the trigger. 4 That separate act was
not the means by which the kidnapping was accomplished—
each element of aggravated kidnapping was satisfied when
Lesky restricted the ex-girlfriend’s movements by holding her at
gunpoint.
¶23 In addition, time and circumstances separate the two acts.
The ex-girlfriend and the boyfriend were sitting on the porch
when Lesky approached, drew a gun, and unlawfully detained
them against their will, accomplishing the aggravated
(…continued)
by “intentionally or knowingly, without authority of law, and
against the will of the victim, detain[ing] or restrain[ing] the
victim.” Id. § 76-5-304(1). Unlike kidnapping, unlawful detention
does not require the victim to be detained or restrained for a
“substantial period of time.” Cf. id. § 76-5-301 (2017).
4. Lesky claims that the jury’s verdict acquitting him of
attempted aggravated murder on count 1 “demonstrates that the
jury either did not believe Lesky actually pulled the trigger or, at
the very least, that the State failed to prove beyond a reasonable
doubt that he did.” No such conclusion can be drawn from the
jury’s verdict. The jury may have believed that Lesky pulled the
trigger but did not have the requisite intent to kill the ex-
girlfriend. See State v. Casey, 2003 UT 55, ¶ 25, 82 P.3d 1106(holding that “attempted murder requires proof of . . . intent to
kill”). Or perhaps the verdict was the result of “compromise or
some leniency in favor of” Lesky. See State v. Nunes, 2020 UT
App 145, ¶ 33 n.13, 476 P.3d 172. In any event, our analysis does
not turn on whether Lesky pulled the trigger. The separate act of
threatening the ex-girlfriend with the gun by holding it to her
head could have supported a separate conviction, even if there
was no evidence that Lesky actually pulled the trigger.
20160941-CA 10 2021 UT App 67State v. Lesky
kidnapping. In response to Lesky’s aggression, the ex-girlfriend
stood up and placed herself between Lesky and the boyfriend, as
Lesky ordered them into the house. The boyfriend testified that
they “both refused several times” and that “[t]his went on for a
while over and over, [Lesky] trying to get us in the house and
[us] refusing.” It was only after that back-and-forth that Lesky
raised the gun to the ex-girlfriend’s head, pressed the barrel
against her temple, and pulled the trigger. That conduct was not
a mere continuation of holding the ex-girlfriend and the
boyfriend at gunpoint but rather an independent act.
Accordingly, the district court did not err—much less plainly
err—by not merging his convictions on counts 1 and 3 under the
merger statute’s same act provision.
B. Lesser Included Offense
¶24 Similar reasoning defeats Lesky’s contention that the
court plainly erred by not merging the same two convictions
under the lesser included offense provision of Utah’s merger
statute. That provision states, in relevant part:
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.
Utah Code Ann. § 76-1-402(3) (LexisNexis 2017). Whether two
offenses stand in a greater-lesser relationship to each other is
“determined by comparing the statutory elements of the crimes
as a theoretical matter and, where necessary, by reference to the
facts proved at trial.” State v. Hill, 674 P.2d 96, 97 (Utah 1983).
But “even if there is overlap in the statutory elements, if the
20160941-CA 11 2021 UT App 67State v. Lesky
convictions rely on materially different acts, then one crime will
not be a lesser included offense of another.” State v. Peterson,
2020 UT App 47, ¶ 20, 462 P.3d 421 (cleaned up).
¶25 Aggravated assault can be a lesser included offense of
aggravated kidnapping when the same facts that prove the
greater offense also prove the elements of the lesser offense. See
State v. Carruth, 1999 UT 107, ¶ 6, 993 P.2d 869. For example, the
jury was instructed on counts 2 and 3 that it had the option to
convict on the lesser included offense of aggravated assault if it
found that pointing the gun at the boyfriend and the ex-
girlfriend, respectively, did not amount to aggravated
kidnapping because those same facts could satisfy each element
of aggravated assault. But “aggravated assault does not merge
with aggravated kidnapping when the convictions can be
supported by materially different acts.” Peterson, 2020 UT App
47, ¶ 20 (cleaned up). The aggravated assault conviction on
count 1 cannot be treated as a lesser included offense of the
aggravated kidnapping conviction on count 3 because “distinct
acts gave rise to each offense.” See id. ¶ 21.
¶26 Our recent opinion in State v. Peterson, 2020 UT App 47,
illustrates this principle. In that case, the defendant was
convicted of both aggravated kidnapping and aggravated
assault “after he after he repeatedly struck his wife throughout
an hours-long car ride” and “prevented her from escaping.” Id.
¶ 1. On appeal, the defendant argued that his counsel was
ineffective for failing to argue that the merger statute applied. Id.
¶ 17. Because “the statute preclude[s] merger of offenses if the
offenses were based on separate acts,” the court examined
whether, “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.” Id. ¶ 20 (cleaned up). The court considered the
defendant’s “conduct in isolation to determine whether distinct
acts gave rise to each offense.” Id. ¶ 21.
20160941-CA 12 2021 UT App 67State v. Lesky
¶27 Although the events were part of a single episode, the
court was “able to identify two materially different acts to
support the two separate convictions based on an intervening
occurrence.” Id. ¶ 26. Specifically, a jury could have reasonably
found that the defendant committed aggravated kidnapping by
beating his wife during the car ride while she was detained
against her will and that he committed aggravated assault by
beating her again after he stopped at a park. Id. ¶¶ 26-27.
“Accordingly, Peterson could not have established that the exact
same conduct supported the two convictions, precluding merger
of the offenses.” Id. ¶ 28.
¶28 Similarly here, counts 1 and 3 are not based on “the exact
same conduct.” Count 1 relies on evidence that Lesky put the
gun to the ex-girlfriend’s head and pulled the trigger, whereas
count 3 relies on his initial act of detaining the ex-girlfriend at
gunpoint. Even though there is overlap in the statutory elements
between aggravated assault and aggravated kidnapping, the
convictions are based on “materially different acts.” Because the
facts and evidence that established count 1 were different from
the facts and evidence that established count 3, Lesky’s
aggravated assault conviction on count 1 was not a lesser
included offense of his aggravated kidnapping conviction on
count 3. The district court committed no error, plain or
otherwise, by not merging the convictions.
II. Self-Representation
¶29 Lesky next contends that, after he elected to represent
himself, he was improperly excluded from sidebar conferences
and in-chambers meetings, which deprived him of control over
his case and violated his right to self-representation. A criminal
defendant has a constitutionally protected “right to proceed
without counsel when he voluntarily and intelligently elects to
do so.” Faretta v. California, 422 U.S. 806, 807 (1975); see also State
v. McDonald, 922 P.2d 776, 779 (Utah Ct. App. 1996). “[A]lthough
20160941-CA 13 2021 UT App 67State v. Lesky
[the defendant] may conduct his own defense ultimately to his
own detriment, his choice must be honored out of ‘that respect
for the individual which is the lifeblood of the law.’” State v.
Bakalov, 849 P.2d 629, 632 (Utah Ct. App. 1993) (quoting Faretta,
422 U.S. at 834).
¶30 If counsel is appointed to assist a self-represented
defendant, the law imposes “some limits on the extent of
standby counsel’s unsolicited participation” at trial. McKaskle v.
Wiggins, 465 U.S. 168, 177 (1984). “In determining whether a
defendant’s [self-representation] rights have been respected, the
primary focus must be on whether the defendant had a fair
chance to present his case in his own way.” Id.
¶31 Lesky argues that “he was excluded against his desire
from several critical discussions that were central to his defense”
when the district court allowed only standby counsel to
participate in sidebar conferences and in-chambers meetings.
The State argues, however, that Lesky “waived—or at very least
did not preserve—this claim” because Lesky accepted a “hybrid”
representation and did not object when his standby counsel
attended those conferences on his behalf. We agree with the
State.
¶32 “Once a pro se defendant invites or agrees to any
substantial participation by counsel, subsequent appearances by
counsel must be presumed to be with defendant’s acquiescence,
at least until the defendant expressly and unambiguously
renews his request that standby counsel be silenced.” Id. at 183(cleaned up). Here, Lesky agreed to a hybrid arrangement in
which standby counsel would participate at trial. Lesky
affirmatively requested the assistance of standby counsel on
legal matters about which Lesky “would have no knowledge,”
including making and responding to objections. And Lesky
agreed that he would remain at either counsel table or the
podium and that only standby counsel would be allowed to
20160941-CA 14 2021 UT App 67State v. Lesky
approach the witness stand. Although sidebar conferences and
in-chambers meetings were never specifically discussed, Lesky
invited and agreed to substantial participation by standby
counsel and never expressly and unambiguously objected to
standby counsel’s participation.
¶33 The record reflects two instances in which standby
counsel participated in sidebar conferences on Lesky’s behalf. In
the first instance, the court had already sustained the State’s
hearsay objection, but Lesky was insistent that he wanted to
respond to the objection on the record. The court expressed
concern about “whether it should be in front of the jury or not,”
prompting Lesky to ask, “Can I approach you with what I —”
The court responded, “Your counsel can and then we’ll deal
with it.” Lesky did not object. In the second instance, Lesky
stopped in the middle of cross-examining a witness and asked,
“Can we approach your Honor?” The court replied, “[Standby
counsel] can approach. He’s helping as standby with evidentiary
issues.” Again, Lesky did not object.
¶34 The record also reflects that the court held two in-
chambers meetings with the State and standby counsel. But in
both instances, Lesky was informed of what occurred and voiced
no objection that standby counsel had attended the meeting on
his behalf. In one instance, standby counsel asked in open court
whether there were time limits on closing arguments, and the
court reminded him that they had “[t]alked about that in
chambers” and that the arguments should “not extend more
than an hour.” Lesky did not object, either to the time limit or to
the fact that the matter had been discussed outside his presence.
¶35 Lesky argues that the second in-chambers meeting was
“[o]f most concern.” In that meeting, the attorneys “discussed
whether new exculpatory evidence had been found and whether
a witness should be called by the defense in order to testify to
it.” Afterward, Lesky was informed of the discussion and,
20160941-CA 15 2021 UT App 67State v. Lesky
believing that the testimony would be favorable to his defense,
asked the State to call the witness in rebuttal. Unfortunately,
there had been a miscommunication about the substance of the
witness’s testimony. Once the witness began testifying and it
became clear that the testimony was not as expected, Lesky
interjected, “Your Honor, I’d like to object real quick. Can we
excuse the jury for a second?” 5 The court did so, allowing Lesky
to fully argue his objection on the record, which resulted in the
testimony being stricken. But importantly, throughout the entire
exchange, Lesky never raised an objection to standby counsel
having participated in the meeting on his behalf.
¶36 Lesky agreed to standby counsel’s substantial
participation and thereafter did not “expressly and
unambiguously . . . request that standby counsel be silenced.”
See McKaskle, 465 U.S. at 183. At the very least, by not voicing an
objection, Lesky failed to preserve the issue for appeal. “The
preservation requirement puts the trial judge on notice of the
asserted error and allows for correction at that time in the course
of the proceeding.” State v. Martinez, 2021 UT App 11, ¶ 27, 480
P.3d 1103 (cleaned up). Lesky never afforded the district court
that opportunity. Therefore, Lesky’s objection is unpreserved,
and because he does not ask us to apply any of the exceptions to
our preservation rules, see State v. Johnson, 2017 UT 76, ¶¶ 18–19,
416 P.3d 443, we have no occasion to decide whether standby
5. This exchange also illustrates that Lesky was not limited to
relying on standby counsel’s participation at sidebar
conferences. At the time of the Faretta colloquy, the court
specifically advised Lesky that he could ask for a break if he
wanted to raise a concern outside the presence of the jury. And
Lesky exercised that option here, showing that he knew how to
request an opportunity to personally address the court outside
the presence of the jury.
20160941-CA 16 2021 UT App 67State v. Lesky
counsel’s participation in the sidebar conferences and in-
chambers meetings would have infringed on Lesky’s right to
self-representation if a timely objection had been made.
III. Exclusion of Evidence
¶37 Lesky’s final argument is that the district court abused its
discretion in precluding him from introducing evidence that the
ex-girlfriend was arrested on drug charges during the course of
the trial. Lesky argues that the evidence should have been
admitted under rule 608 of the Utah Rules of Evidence, which
governs evidence about a witness’s character for truthfulness or
untruthfulness. We conclude that the evidence Lesky sought to
admit was not rule 608 evidence but was instead evidence of
impeachment by contradiction and that the court acted within its
discretion by excluding that evidence under rule 403.
¶38 During trial, the ex-girlfriend testified that she had
struggled with abusing prescription medication in the past but
was now “clean.” Four days later, while the trial was still going
on, she was arrested on DUI and drug possession charges. Lesky
filed a written motion seeking to admit evidence of this arrest
“to impugn [the ex-girlfriend’s] character for truthfulness and to
show she lied on the stand.” The court denied the motion,
concluding that rule 608(b) “precludes this type of evidence from
coming in,” and that the evidence would be “more prejudicial
[than] probative” under rule 403.
¶39 Rule 608(b)(1) of the Utah Rules of Evidence generally
prohibits the admission of “extrinsic evidence . . . to prove
specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness,” but does allow
a party to inquire into such instances on cross-examination “if
they are probative of the character for truthfulness or
untruthfulness of . . . the witness.” This rule “does not apply to
evidence used to directly rebut a witness’s testimony or other
20160941-CA 17 2021 UT App 67State v. Lesky
evidence” and leaves “the admissibility of extrinsic evidence
offered for other grounds of impeachment (such as
contradiction, prior inconsistent statement, bias and mental
capacity) to Rules 402 and 403.” State v. Thompson, 2014 UT App
14, ¶ 29, 318 P.3d 1221 (cleaned up).
¶40 The ex-girlfriend’s drug-related arrest was not a specific
instance of conduct probative of her “character for truthfulness
or untruthfulness.” See Utah R. Evid. 608(b). Rather, the evidence
was probative because of its tendency to impeach the ex-
girlfriend by contradiction—that is, by suggesting that she lied
on the stand when she claimed to be “clean.” Because the
evidence was offered to rebut the ex-girlfriend’s testimony and
“does not go to [her] general character for truthfulness, it is not
the type of evidence contemplated under rule 608.” See State v.
Corona, 2018 UT App 154, ¶ 21, 436 P.3d 174.
¶41 And because rule 608(b) does not apply, we turn to the
district court’s alternative basis for excluding the evidence under
rule 403. That rule allows the court to “exclude relevant evidence
if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Utah R. Evid. 403.
In opposing Lesky’s motion to admit evidence of the ex-
girlfriend’s arrest, the State specifically raised a rule 403
objection, and standby counsel responded to the objection,
addressing both the probative value and the risk of prejudice. In
denying the motion, after having first addressed rule 608(b), the
court turned to rule 403:
In addition, I am finding that it’d be more
prejudicial [than] probative as it relates to drug use
because it seemed in your statement that you’re
more interested in painting a picture of [the ex-
girlfriend] as a drug user, which she’s already—
20160941-CA 18 2021 UT App 67State v. Lesky
which we’ve already heard, and that would simply
be duplicative and a waste of the Court’s time and
a waste of this jury’s time as we go forward. So I’m
ruling against the motion.
¶42 Lesky contends that the district court “applied the
standard incorrectly” because it found the evidence to “be more
prejudicial [than] probative.” To exclude otherwise relevant
evidence under rule 403, the probative value must be
“substantially outweighed” by “unfair prejudice” or one of the
other enumerated dangers. Id. And while the district court
misstated the standard during its oral ruling, we are confident
that the district court “knows the rule 403 standard” and “was
only using shorthand.” See Northgate Village Dev., LC v. Orem
City, 2019 UT 59, ¶ 35, 450 P.3d 1117. To reverse based solely on
the court’s imprecise articulation of the standard would elevate
form over substance. “And more fundamentally, ‘appellate
review of evidentiary decisions’ should only ‘assess whether the
district judge made an error in admitting or excluding the evidence
in question’ and should thus affirm so long as the trial court made
the ‘right decision,’ even if it was for ‘a mistaken reason.’” See
State v. Wright, 2021 UT App 7, ¶ 41, 481 P.3d 479 (quoting State
v. Thornton, 2017 UT 9, ¶¶ 51, 53, 391 P.3d 1016).
¶43 Under the correct articulation of the rule 403 standard, we
have no trouble concluding that the district court acted within its
discretion in excluding the evidence of the ex-girlfriend’s post-
testimony arrest. Whether the ex-girlfriend was, in fact, “clean”
at the time of trial was immaterial to the charged crimes. The
evidence was relevant only to the extent it could impeach the ex-
girlfriend by contradicting her testimony that she was no longer
abusing prescription drugs. And as the State points out, the
evidence would not have established that she necessarily lied on
the stand—her drug-related arrest did not prove that she was
using drugs when she testified four days earlier. That minimal
probative value was substantially outweighed by the waste of
20160941-CA 19 2021 UT App 67State v. Lesky
time entailed in recalling the ex-girlfriend to potentially impeach
her on an entirely collateral matter as well as by the cumulative
nature of the evidence “painting a picture of [the ex-girlfriend]
as a drug user.” The district court acted within its discretion in
excluding the evidence where the dangers the court identified
substantially outweighed the probative value of the evidence.
CONCLUSION
¶44 We conclude that the district court did not plainly err
when it did not act sua sponte to merge Lesky’s convictions for
aggravated kidnapping and aggravated assault, either under a
same act analysis or a lesser included offense analysis. We
further conclude that Lesky’s contention regarding standby
counsel’s participation in sidebar conferences and in-chambers
meetings was unpreserved, and we decline to consider it
because he does not ask us to apply an exception to our usual
preservation rules. Finally, we conclude that the district court
acted within its discretion in refusing to allow Lesky to recall the
ex-girlfriend to potentially impeach her earlier testimony with
evidence of a subsequent drug arrest. Accordingly, we affirm.
20160941-CA 20 2021 UT App 67