District Court, Salt Lake Department The Honorable Mark S.
Kouris No. 141904012
J. Seppi and Michael R. Sikora, Attorneys for Appellant.
D. Reyes and Marian Decker, Attorneys for Appellee.
Jill M. Pohlman authored this Opinion, in which Judges J.
Frederic Voros Jr. and Kate A. Toomey concurred.
Timothy Noble Walker asserts that he was denied his federal
constitutional right to a jury trial with respect to a key
element of the State's case. We agree and therefore
vacate his conviction and remand for a new trial.
Walker and his wife (Wife) had been married less than a month
when Wife's employer transferred her job from South
Carolina to Utah. The couple then moved to Utah, bringing
Wife's teenage son (Son) with them. They stayed in hotels
for a few days while Wife began work at her new location.
One evening the three were together in their hotel room.
Walker and Wife had been drinking and, sometime during the
evening, Wife picked up Walker's glass and poured his
drink down the sink. Upset, Walker struck Wife in the face.
She fell against the refrigerator, then stood up and walked
around the hotel room, searching for something. She found the
keys to the couple's van in Walker's clothing, and
she put them in her pocket.
Walker approached Wife from behind and put his right wrist
against her neck. He lifted her up with his right hand while
reaching into her pocket with his left hand, attempting to
get the keys. During the struggle that followed, Wife kicked
at Walker and pulled at his arm, trying to loosen his hold on
her neck. But Walker used his left hand to reinforce his
grip, and he lifted Wife completely off the floor. Wife was
unable to wrench free.
Son was sitting on a bed a few feet away. He saw Wife
struggling to free herself and heard her making
''choking sounds.'' He told Walker to stop,
but Walker persisted. Walker kept his wrist pressed against
Wife's neck until she suddenly exhaled. Her eyes rolled
back in her head, her arms fell to her sides, and her body
went limp. She had been subject to Walker's grip for
approximately ten to fifteen seconds.
Walker abruptly let go and pushed Wife away. She fell
face-first against the wall and did not move. Walker began
gathering his things. When Son asked him what he had done,
Walker replied that he ''didn't do
anything'' and that Wife was ''faking
it'' because she was a ''drama
queen.'' Walker then walked out of the room. He drove
away, ultimately returning to South Carolina.
Son attempted to waken Wife and shift her into a sitting
position. He also called the police. After about a minute,
Wife began to regain her faculties. She heard Son crying and
calling her name. Not long afterward, she heard a knock on
the door when a police officer arrived.
The officer found Son and Wife in the hotel room. Wife was
conscious but ''didn't appear [to be] in the
right state of mind, '' and the officer
''couldn't understand what she was saying at
first.'' After listening to Son's description of
the evening's events, the officer called for medical
assistance to evaluate Wife. He also photographed Wife's
injuries, which consisted of ''visible
injury'' to her right eye and ''red marks
around her neck, '' which ''appeared to be
swollen.'' The officer also called Walker. After the
officer identified himself, Walker said, ''I'm
driving out of the state, don't worry about me,
'' and hung up.
A paramedic evaluated Wife and asked if she wanted to go to
the hospital, but Wife declined. However, Wife saw a doctor
several days later and told him that she felt soreness and
tenderness about her head, face, and neck. She underwent
testing and was told to ''take it easy'' and
allow her body time to heal, but she was not prescribed any
particular medical treatment.
Walker was charged with aggravated assault, a second degree
felony. See Utah Code Ann. § 76-5-103(2)(b)
(LexisNexis 2012). He elected to have the charge tried by a
jury. Wife, Son, and the officer each testified for the State
regarding the evening's events. During cross-examination,
Wife was asked about the medical documentation of her
injuries. She testified that she had suffered a concussion
and headaches, but she could not identify any reference to
those injuries in the records ...