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State v. Wilkinson

Court of Appeals of Utah

November 9, 2017

State of Utah, Appellee,
v.
Terry Lee Wilkinson, Appellant.

         Third District Court, Salt Lake Department The Honorable Katie Bernards-Goodman No. 141902977

          Ronald Fujino, Attorney for Appellant.

          Sean D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee.

          Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen and David N. Mortensen concurred.

          ORME, JUDGE.

         ¶1 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 his conviction.

         BACKGROUND[1]

         ¶2 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.

         ¶3 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.

         ¶4 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."

         ¶5 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.

         ¶6 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?"

         ¶7 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."

         ¶8 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!"

         ¶9 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 bit.[2] 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 under arrest.

         ¶10 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 proposed instruction.

         ¶11 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, [3] ...

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