District Court, Salt Lake Department The Honorable Katie
Bernards-Goodman No. 141902977
Fujino, Attorney for Appellant.
D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee.
Gregory K. Orme authored this Opinion, in which Judges
Michele M. Christiansen and David N. Mortensen concurred.
Defendant Terry Lee Wilkinson was convicted of aggravated
assault after charging at and hitting his victim with an
electric drill, which he swung from its power cord. He
appeals his conviction, arguing that the evidence against him
was insufficient to support the jury's verdict and that
his trial counsel provided ineffective assistance. We affirm
On the morning of March 15, 2014, the father (Victim) of one
of Defendant's roommates parked his new car in front of
Defendant's residence. Victim's daughter, who had
been living with Defendant for a time, had asked Victim to
help her move because she "had to get out" of the
house. Although Victim suffered from chronic lower-back pain
and could not easily walk without the use of a cane, his new
car was well-suited for the task, and he agreed to help.
Finding that his daughter was still inside packing when he
arrived, Victim entered the residence.
Upon stepping into the front room, Victim discovered that
"[t]here was a lot of ruckus going on." Defendant
"kept trying to pick a fight" with Victim's
daughter, accusing her of packing things that belonged to
him. Twice Victim witnessed Defendant "lay his hands
on" his daughter: once, when Defendant grabbed a pot
from out of the daughter's hand, and then again when
Defendant "pushed her" after "tussling
over" a box the daughter had removed from a closet.
After demanding that Defendant "keep his hands off [his]
daughter, " Victim urged her to "just quit, move
on, " and "get out" of the house.
Once her belongings had finally been packed, Victim and his
daughter began moving boxes outside and loading them into
Victim's vehicle. Defendant, however, did not relent; he
insisted that the two allow him to search through each box
before loading it into the car. Ignoring these demands, the
daughter loaded one of the boxes into the rear of the
vehicle, sending Defendant into a rage. Turning to Victim, he
shouted that he "was going to see what was in that box
[even] if he had to tear the car apart." Victim
responded, "You're not touching my car."
At this point Defendant came "flying at" Victim,
and the two began exchanging "colorful" language.
Their voices grew louder, and after a short time Victim
sensed that Defendant was on the verge of physical violence.
Fearing for his safety, Victim raised his cane over his
shoulder to "stop [Defendant] in his tracks."
Defendant then retreated into his house, "cussing and
fussing the whole" way.
Believing the matter settled, Victim put down his cane and
began rearranging boxes in the car. A few minutes passed, and
his daughter returned to the house to retrieve more boxes.
That is when Victim, who was still arranging boxes in his
car, heard a "thump, thump" sound coming from
behind him. Victim would later testify that "when [he]
turned [his] head[, he] caught [Defendant] out of the corner
of [his] eye and he was swinging this thing." As Victim
turned to face him, Defendant bellowed, "Did you think I
wasn't going to come back?"
Initially perceiving the swinging object to be a boot, Victim
raised an arm to shield himself from what he believed would
likely be a painful but survivable blow. When the object
connected with his arm, however, he "quickly discovered
it was no boot." Upon recognizing that Defendant was in
fact swinging an electric drill from its power cord, Victim
began scrambling backward, "do[ing] whatever [he] could
to save his life."
Running "sideways" so as to keep both eyes on the
drill, Victim lost his balance and fell to the ground.
Defendant did not let up. Even after Victim had curled into
the fetal position, Defendant continued swinging the drill at
Defendant, forcing Victim to roll frantically from side to
side. At one point Victim managed to get to his feet, only to
fall again. Throughout the attack, Defendant shouted,
"I'm going to kill you!"
Finally, after nearly five minutes, Defendant relented. By
then Victim had sustained several minor injuries, including a
gash on his arm caused by the "stub" of the drill
Victim had also cut his hand after falling on some gravel. As
Defendant made his way back to the house, Victim called 911.
The paramedics arrived soon after that, and they were
accompanied by four police officers, who placed Defendant
Defendant was charged with third-degree-felony aggravated
assault, and the case proceeded to trial. After the State
rested, Defendant moved for a directed verdict, arguing that
the State failed to satisfy its evidentiary burden regarding
whether Defendant's swinging drill qualified as a
"dangerous weapon" as the term is used in the
applicable statute. See Utah Code Ann. §
76-1-601(5)(a) (LexisNexis 2012). The district court denied
Defendant's motion, concluding that on the evidence
presented the jury could reasonably find that the drill
"could [have] crack[ed] [Victim's] skull."
Defendant then submitted a proposed jury instruction to the
court on a lesser included offense of class B misdemeanor
assault, which differed from the State's felony charge by
omitting the aggravating "dangerous weapon"
element. The State took no exception to Defendant's
At the close of evidence, the district court submitted
instructions to the jury, which included an instruction on
the aggravated assault charge as well as an instruction on
class B misdemeanor assault. The aggravated assault
instruction read as follows:
Before you can convict the defendant . . . of the offense of
Aggravated Assault[, ] . . . you must unanimously find from
all of the evidence and beyond a reasonable doubt each and
every one of the following elements . . .:
1. the defendant . . .,
2. committed an assault, as defined in Utah Code 76-5-102,