State v. Sanchez

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
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.
20130276-CA 2 2015 UT App 27State v. Sanchez
¶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.
20130276-CA 3 2015 UT App 27State v. Sanchez
¶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.
20130276-CA 4 2015 UT App 27State v. Sanchez
¶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
20130276-CA 5 2015 UT App 27State v. Sanchez
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 ten-
minute 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)).
20130276-CA 6 2015 UT App 27State v. Sanchez
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.
20130276-CA 7 2015 UT App 27State v. Sanchez
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
20130276-CA 8 2015 UT App 27State v. Sanchez
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
20130276-CA 9 2015 UT App 27State v. Sanchez
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.
20130276-CA 10 2015 UT App 27State v. Sanchez
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).
20130276-CA 11 2015 UT App 27State v. Sanchez
¶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
20130276-CA 12 2015 UT App 27State v. Sanchez
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).
20130276-CA 13 2015 UT App 27State v. Sanchez
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
20130276-CA 14 2015 UT App 27State v. Sanchez
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.
20130276-CA 15 2015 UT App 27