of Certiorari to the Utah Court of Appeals
District, Ogden The Honorable Mark R. DeCaria No. 131900362
D. Reyes, Att'y Gen., Christopher D. Ballard, Asst.
Solic. Gen., Salt Lake City, for respondent
P. Newton, Kalispell, MT, for petitioner
Justice Himonas authored the opinion of the Court, in which
Chief Justice Durrant, Justice Pearce, and Justice Petersen
While on parole from the state prison for the attempted rape
of a child, defendant, Percy Wilder, detained and sexually
attacked the victim, leading a jury to convict him of one
count of aggravated sexual assault and one count of
aggravated kidnapping. Before the court of appeals, Mr.
Wilder argued that these two convictions should have merged
pursuant to State v. Finlayson, 2000 UT 10, 994 P.2d
1243. He also argued that his trial counsel was ineffective
for not asking for an order to that effect.
The court of appeals disagreed. It reasoned that Mr.
Wilder's trial counsel didn't render ineffective
assistance because the convictions didn't, in fact,
merge. We granted a writ of certiorari to determine whether
the court of appeals erred in its determination. It
The State and Mr. Wilder share no common ground with respect
to the decision of the court of appeals other than in one
significant particular: both ask us to repudiate the
common-law merger test we first announced in
Finlayson and recapped in State v. Lee,
2006 UT 5, 128 P.3d 1179, (Finlayson-Lee test). We
accept the invitation, overrule the relevant portions of
Finlayson and Lee, and announce that the
controlling test is set forth in Utah Code section
76-1-402(1). In view of this decision, we uphold the
determination of the court of appeals that Mr. Wilder's
trial counsel wasn't ineffective.
After going to a concert at an Ogden nightclub, and not yet
ready to call it a night, the victim and her friend decided
to go to a house party. The two women got to the party at
around 1:30 a.m. Mr. Wilder showed up a few minutes later. In
short order, he started hassling the victim to go outside
with him to talk. The victim told him no. Undeterred, Mr.
Wilder repeated his invitation nearly a dozen times. The
answer was always no.
While the victim didn't go outside with Mr. Wilder, she
did decide to step outside to retrieve her phone from her
car. Mr. Wilder followed her out the door and immediately
relaunched his verbal offensive-now asking her over and over
again to "go with him" to talk. Again, the answer
was no. Mr. Wilder didn't stop. He opened the
driver's side door of his car and tried to get the victim
to sit down. At first, she kept telling him that she
didn't want to. Ultimately, however, she gave in hoping
that it would "get him to shut up."
But Mr. Wilder kept going. Once he got the victim in the car,
he tried to get her to scoot over to the passenger seat. When
she refused, he sat on the edge of the driver's seat. She
then crossed over to the passenger's side, opened the
door, and put one of her legs out. To prevent the victim from
getting out, Mr. Wilder started the car, quickly backed up,
and said he wanted her "to ride with him to go pick up a
friend and take him home or something." The victim's
door was still open as the car began moving forward.
Afraid Mr. Wilder would run over her if she jumped out, the
victim closed the car door, but asked Mr. Wilder to stop at
her car on the partial pretext of wanting to grab her phone.
Really, she just wanted out. Mr. Wilder refused. Instead, he
kept driving, now going on about wanting to have oral sex.
The victim kept saying no.
Mr. Wilder, it appears, couldn't have cared less about
obtaining the victim's consent. So, he drove for a couple
of minutes and then pulled up by a dumpster toward the back
of a parking lot adjacent to an apartment complex. There, he
turned the car off and asked the victim to undress. He then
tried to put his hand up her shirt, shoved his head into her
chest, and bit her. When she still refused to submit, he
started screaming at her "[t]o get naked." The
victim reacted by asking why he was doing this and telling
him if he'd let her out she'd walk home. Mr. Wilder
then shouted that he'd cut her if she got out of the car.
Despite Mr. Wilder's threat to cut her, the victim
continued to say no and to ask him why he was doing this. She
also told him that she had children at home. Mr. Wilder
answered that "he didn't give an 'F' about
[her] or [her] kids, and that [she] was going to do what he
Around this time, the victim took her heels off with an eye
toward making a run for it. Mr. Wilder told her to keep
getting undressed. When she wouldn't, he "reached
down the side of his car and said, 'I'm going to
count to three, and if you are not naked, I'm going to
gut you from head to toe.'"
At two, the victim opened the door, jumped out, pulled away
from Mr. Wilder, and started running for the apartment
complex. The victim was in the car with Mr. Wilder for some
ten minutes before she was able to make her escape.
The victim made it inside of the apartment complex and,
hearing Mr. Wilder running behind her, started pounding on
doors and screaming. Mr. Wilder caught up with the victim,
wrapped his hand in her hair, and began trying to drag her
back to the car. She fought back by dropping close to the
ground and locking her arms and legs in a way that, given the
narrow hallway, kept Mr. Wilder from being able to drag her
back. Mr. Wilder then released the victim, punched her in the
face, and ran off. The victim continued pounding on apartment
doors and screaming until she was able to attract help and
call 911. Police were able to quickly find and arrest Mr.
The State charged Mr. Wilder with one count of aggravated
sexual assault, a first-degree felony, and one count of
aggravated kidnapping, also a first-degree felony. The jury
found Mr. Wilder guilty as charged. The trial judge sentenced
Mr. Wilder to two terms of fifteen years to life, to run
concurrently with each other but consecutive to Mr.
Wilder's prison sentence for his prior conviction for
attempted rape of a child. At no point during the trial
proceedings did Mr. Wilder's trial counsel move to have
the two convictions merged.
We granted a writ of certiorari on the question of
"[w]hether the court of appeals erred in concluding [Mr.
Wilder's] trial counsel could not have established that
his aggravated kidnapping and aggravated sexual assault
charges merged." We assert jurisdiction pursuant to Utah
Code section 78A-3-102(3)(a).
"On a writ of certiorari, we review the decision of the
court of appeals, not that of the district court, and apply
the same standard[s] of review used by the court of appeals.
We conduct that review for correctness, ceding no deference
to the court of appeals." Judge v. Saltz Plastic
Surgery, P.C., 2016 UT 7, ¶ 11, 367 P.3d 1006
(alteration in original) (citation omitted). In addition, the
underlying merger issue asks a ...