State v. Rodriguez

2025 UT App 84

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ALEXIS GUSTAVO RODRIGUEZ,
Appellant.

Opinion
No. 20230723-CA
Filed May 30, 2025

Third District Court, Salt Lake Department
The Honorable William K. Kendall
No. 211910188

Nathalie S. Skibine, Attorney for Appellant
Derek E. Brown and Tanner R. Hafen,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

TENNEY, Judge:

¶1 Alexis Rodriguez became upset at a party, and over the
course of several hours, he threatened three people with a gun
and detained them in distinctive ways. Rodriguez was later
convicted of three counts of aggravated kidnapping and three
counts of aggravated assault—with one count of each offense
being linked to each of the three individual victims.

¶2 Rodriguez now challenges his convictions on two grounds.
First, he argues that the district court erred by not instructing the
jury on the lesser included offense of kidnapping for the
aggravated kidnapping counts. Second, he argues that his
aggravated assault convictions should have merged into the
State v. Rodriguez

aggravated kidnapping convictions; because this claim was
unpreserved, he asks us to review it for either plain error or
ineffective assistance of counsel. For the reasons set forth below,
we reject Rodriguez’s arguments and affirm his convictions.

BACKGROUND 1

The Events

¶3 On the evening of August 21, 2021, Rodriguez’s mother
(Mother) celebrated her birthday with several friends at a
nightclub, after which she and her friends returned to her home
to continue celebrating with some people they’d met at the club.
When the group arrived at Mother’s home, Rodriguez was there
drinking. A few hours later, Rodriguez became angry when he
saw Mother dancing with some men that she’d brought home.
Rodriguez began arguing with some of them and threatening to
fight them. At that point, many of the guests at the party decided
to leave.

¶4 Two of the guests, Arturo and Juan, had left the house and
were in a car about to leave when Rodriguez came outside and
approached them. 2 Rodriguez lifted his shirt partway, showing
them that he had a gun in his pocket, and he then reached into his
pocket and partially pulled the gun out in an apparent

1. “On appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Herrera,
2025 UT App 1, n.2, 563 P.3d 416 (quotation simplified).

2. Aside from Rodriguez, we’ll refer to the individuals involved
with either descriptors relating to their relationship to Rodriguez
or the events (e.g., Mother or Tenant), or instead with the
pseudonyms that were used in the briefs.

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State v. Rodriguez

demonstration that he did indeed have a gun. Rodriguez then told
Arturo and Juan that they “had to go back” inside and “keep
dancing” because “the party wasn’t over.” When doing so,
Rodriguez used a “bold” and “threaten[ing]” voice. Arturo and
Juan got out of the car, and Rodriguez then walked behind them
as they entered the house. Arturo later testified that he did not go
“willingly” but instead went back inside because he felt like he
“kind of had to.”

¶5 Once inside, Rodriguez “took” them into the dining room,
pulled the gun out of his pocket, pointed it at each of them, and
told them to sit down. Juan later testified that Rodriguez pointed
the gun at his head, and Arturo later testified that Rodriguez
pointed the gun at his chest for about 30 or 40 seconds. At that
point, Arturo and Juan sat down as ordered. They remained
sitting for a period of about “five to ten minutes,” during which
time Rodriguez was still “pointing the gun” at them.

¶6 Mother eventually came into the dining room, and a short
time later, Nadia, who was another guest at the party, came into
the dining room as well. Nadia later said that when she entered
the dining room, she saw Mother arguing with Rodriguez, while
Arturo and Juan were sitting in chairs and not moving. When
Nadia asked Arturo and Juan why they had come back into the
house, “they just looked at [her]” and “didn’t say anything.” She
“insist[ed]” to them that they “needed to leave,” but they
“wouldn’t move.”

¶7 Rodriguez had “drunk a lot” by this point and seemed
“very intoxicated.” Mother told Rodriguez that he needed to
leave, and when Rodriguez refused, Mother and Rodriguez began
arguing. Mother “grabbed [Rodriguez] by the shirt and started to
shove him,” which caused Rodriguez to take his shirt off and
throw it onto the floor. Mother and Nadia then began to
physically push Rodriguez toward the door of the house. Nadia
later testified that while they were doing so, Rodriguez pulled the

20230723-CA 3 2025 UT App 84
State v. Rodriguez

gun out and pointed it at her head. Mother and Nadia were
eventually able to push Rodriguez outside the house, and they
shut the door behind him.

¶8 Another guest, Joseph, was outside in his car waiting for
Nadia, who was his girlfriend. Rodriguez walked over to Joseph,
got into Joseph’s car, and told Joseph to “take him.” When Joseph
objected, stating that he needed to wait for Nadia, Rodriguez
pulled out his gun, pointed it at Joseph, and said, “I just told you
to take me.” Joseph began driving, with Rodriguez directing him
where to go. During this drive, which lasted for about an hour,
Rodriguez would occasionally pull the gun out, and he sometimes
pointed it at Joseph’s chest. Joseph later testified that Rodriguez
pointed the gun directly at him “more than five or six times” as
they drove. Rodriguez eventually told Joseph to pull over, at
which point Rodriguez got out of the car.

¶9 Rodriguez then told Joseph to give him his shirt. When
Joseph said no, Rodriguez pointed the gun at him and again
demanded it. This time, Joseph took his shirt off and gave it to
Rodriguez. As Rodriguez put on the shirt, Joseph sensed his
opportunity, “put the car in gear[,] and took off.”

¶10 Rodriguez then walked to the home of his ex-girlfriend
(Ex-Girlfriend). Rodriguez told Ex-Girlfriend that Mother had
kicked him out of her house, and he stayed with Ex-Girlfriend for
a few hours until she left for work.

Charges and Trial

¶11 Rodriguez was later arrested and charged with three
counts of aggravated kidnapping (one count each for Arturo,
Juan, and Joseph), as well as three counts of aggravated assault
(one count each for Arturo, Juan, and Joseph). The case went to
trial. In the State’s case, several witnesses (including Arturo, Juan,
Nadia, and Joseph) testified consistently with the above.

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State v. Rodriguez

¶12 During their testimonies, Joseph and Nadia acknowledged
that, after the incidents described above, they had each applied
for a U visa, which is a type of visa that gives a victim of certain
crimes a pathway to legal citizenship. Cf. State v. Cantarero, 2018
UT App 204, ¶ 5 n.2, 437 P.3d 524 (noting that “U Nonimmigrant
Status, or a U visa, is available through federal I-918 forms and
provides temporary immigration benefits to victims of qualifying
criminal activity”). Joseph testified that he first heard about U
visas from his supervisor the day after the incidents and that he
was now in the process of applying for one. Nadia likewise
testified that she had learned about U visas from friends and
family after she told them what happened, and she said that she
had since begun the application process. A victim advocate also
testified about U visas in general, and in doing so, she expressed
her understanding that “there’s no requirement that there has to
be a gun used in a crime” to entitle an applicant to a U visa. In
addition, the victim advocate testified that Mother had since
begun the application process for a U visa as well.

¶13 The defense called several witnesses during its case,
including Mother, a tenant (Tenant) who was living at Mother’s
house at the time of the party, and Ex-Girlfriend. Mother testified
that she never saw Rodriguez with a gun that night, including
during her argument with Rodriguez in the dining room or when
she and Nadia pushed him out of the house. Tenant testified that
she came out of her room when she heard Mother arguing with
Rodriguez that night, that she had a view of the front door as
Rodriguez was pushed out of the house, and that she didn’t see a
weapon on him. 3 Finally, Ex-Girlfriend testified that she did not
see a gun on Rodriguez during the time that he was at her house.

3. During the State’s cross-examination, Tenant admitted that she
typically wears glasses but wasn’t wearing them when she came
out of her room.

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State v. Rodriguez

¶14 Before trial, defense counsel submitted a proposed jury
instruction that would allow the jury to convict Rodriguez of the
lesser included offense of kidnapping for each of the aggravated
kidnapping charges. After the evidence was presented at trial (but
before closing argument), defense counsel renewed this request
and asked the court to give the instruction, contending that the
jury could conclude that Rodriguez “did all this, but maybe he
didn’t have a gun,” which would allow it to convict Rodriguez of
kidnapping as opposed to aggravated kidnapping. After hearing
arguments from both sides, the court declined to give the
proposed instruction, concluding that it saw no “factual basis” for
the jury to convict Rodriguez of kidnapping. In the court’s view,
the “testimony” had been that “either he did this and he did it
with a gun,” or “he didn’t do this at all.”

¶15 Although the court did not give the proposed lesser
included offense instruction for kidnapping, it did give a lesser
included offense instruction for aggravated kidnapping by
unlawful detention. Unlike the proposed kidnapping instruction,
the lesser included offense of aggravated kidnapping by unlawful
detention did not turn on whether Rodriguez used a gun. Indeed,
the elements instruction for aggravated kidnapping by unlawful
detention specifically included an element alleging that
Rodriguez did use a dangerous weapon (which, in this case, was
alleged to be a gun) during the offense. The main difference
between aggravated kidnapping and aggravated kidnapping by
unlawful detention was that one of the variants of aggravated
kidnapping contained, as an element, that Rodriguez had
detained each victim for “any substantial period of time,” while
the aggravated kidnapping by unlawful detention instruction
contained no timing element.

¶16 For the aggravated assault charges, the court also
instructed the jury on the lesser included offense of threatening
with or use of a dangerous weapon.

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State v. Rodriguez

¶17 At the close of trial, the jury found Rodriguez guilty of
three counts of aggravated kidnapping and three counts of
aggravated assault. Rodriguez now appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Rodriguez first argues that the district court erred when it
declined to instruct the jury on the lesser included offense of
kidnapping. “A trial court’s refusal to grant a lesser included
offense instruction is a question of law, which we review for
correctness.” State v. Florez, 2020 UT App 76, ¶ 15, 465 P.3d 307
(quotation simplified).

¶19 Second, Rodriguez argues that his aggravated assault
convictions should have merged into his aggravated kidnapping
convictions. Rodriguez concedes that this claim was not
preserved below, but he asks us to review it for either plain error
or ineffective assistance of counsel. “To demonstrate plain error,
a defendant must establish that (i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful.” State v. Suhail, 2023 UT App 15, ¶ 69, 525 P.3d 550
(quotation simplified), cert. denied, 531 P.3d 730 (Utah 2023). And
an “ineffective assistance of counsel claim raised for the first time
on appeal presents a question of law.” Id. ¶ 72 (quotation
simplified).

ANALYSIS

I. Lesser Included Offense of Kidnapping

¶20 Rodriguez first argues that the district court erred by
denying his request for a lesser included offense instruction for
kidnapping. We disagree.

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State v. Rodriguez

¶21 Under Utah Code section 76-1-402(3), a “defendant may be
convicted of an offense included in the offense charged but may
not be convicted of both the offense charged and the included
offense.” A defendant is entitled to a lesser included offense
instruction if (1) “the charged offense and the lesser included
offense have overlapping statutory elements” and (2) “the
evidence provides a rational basis for a verdict acquitting the
defendant of the offense charged and convicting him of the
included offense.” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788
(quotation simplified); see Utah Code § 76-1-402(3)–(4).

¶22 By statute, aggravated kidnapping occurs when “the actor,
in the course of committing unlawful detention or kidnapping . . .
uses or threatens to use a dangerous weapon.” Utah Code § 76-5-
302(2)(a). 4 In the parts relevant to the charges here, kidnapping
occurs when the “actor intentionally or knowingly, without
authority of law, and against the will of an individual . . . detains
or restrains the individual for any substantial period of time; . . .
detains or restrains the individual in circumstances exposing the
individual to risk of bodily injury”; or “moves the individual any
substantial distance.” Id. § 76-5-301(2)(a), (b), (e). 5 Thus, for each

4. Many of the statutes involved in this case—including, notably,
the aggravated kidnapping and kidnapping statutes discussed
here, as well as the aggravated assault and merger statutes
discussed below—have been amended since the events that gave
rise to this case. But because there have been no substantive
changes to the elements or statutory language in question, we cite
the current versions of these statutes for convenience.

5. This statutory language was reflected in the elements
instructions for the aggravated kidnapping charges in this case. In
those instructions, jurors were told that to convict Rodriguez of
aggravated kidnapping with respect to the charges relating to
Arturo, Juan, and Joseph, they must find beyond a reasonable
(continued…)

20230723-CA 8 2025 UT App 84
State v. Rodriguez

of the three aggravated kidnapping charges, the sole distinction
between aggravated kidnapping and the proposed lesser
included offense of kidnapping turned on whether Rodriguez
used a dangerous weapon—which, in this case, was alleged to be
a gun.

¶23 With this as the legal backdrop, Rodriguez argues that he
was entitled to a lesser included offense instruction on
kidnapping because there was a rational basis from which the jury
could conclude that he didn’t have (much less use or threaten to
use) a gun. Rodriguez points out that Mother, Tenant, and Ex-
Girlfriend each testified that they did not see him with a gun that
evening. In Rodriguez’s view, if the jury had believed their
testimonies and thus believed that he did not have a gun, it would
have had a basis to convict him of kidnapping instead of
aggravated kidnapping.

doubt that Rodriguez “[u]sed or threatened to use a dangerous
weapon,” and that they must then find that he “[i]ntentionally or
knowingly” “[d]etained or restrained” the victims “for any
substantial period of time” or “in circumstances exposing [them]
to risk of bodily injury.” For the charge involving Joseph only, the
instruction added the additional variant under which Rodriguez
could be convicted if the jury found that he “[m]oved [Joseph] any
substantial distance.”
Also, for clarity, we again note that the aggravated
kidnapping statute allows for conviction based on either
“kidnapping” or “unlawful detention” if the offense is committed
by using or threatening to use a dangerous weapon. Utah Code
§ 76-5-302(2)(a). As noted above, the jury here was given the
option of convicting Rodriguez of aggravated kidnapping based
on unlawful detention (as opposed to kidnapping), but on the
verdict form, it chose to convict based on the act of kidnapping
the victims with a dangerous weapon (as opposed to unlawfully
detaining them).

20230723-CA 9 2025 UT App 84
State v. Rodriguez

¶24 We agree with Rodriguez that there was some evidence
from which the jury could conclude that he didn’t have a gun that
night. But to obtain a lesser included offense instruction,
Rodriguez must show that there was a “rational basis” from “the
evidence” for the jury to both “acquit[] [him] of the offense
charged” and “convict[] him of the included offense.” Powell, 2007
UT 9, ¶ 24 (quotation simplified); see also Utah Code § 76-1-402(4).
In Zaragoza v. State, 2017 UT App 215, ¶¶ 37–40, 407 P.3d 1122, for
example, we considered a case in which a defendant who was
charged with aggravated kidnapping asserted that he was
entitled to a lesser included offense instruction for kidnapping.
We disagreed. We first noted that the “evidence at trial”
“overwhelmingly” showed that the defendant used a dangerous
weapon, and we then held that “[t]here was simply no evidence
presented at trial demonstrating that [the defendant] committed
kidnapping or unlawful detention, but not aggravated
kidnapping.” Id. ¶ 39.

¶25 In denying the request at issue here, the district court
reasoned that the evidence presented at trial showed that “either
[Rodriguez] did this with a gun, or he didn’t do it at all.” On
appeal, the State takes a similar view of the evidentiary picture,
asserting that “there was no rational basis in the evidence to
conclude that Rodriguez threatened and kidnapped his three
victims, but that he did so without a gun.” Having reviewed the
record, we agree.

¶26 At trial, Arturo, Juan, and Joseph each testified that
Rodriguez detained or controlled their movements by threatening
them with a gun. And their testimonies were supported by the
testimony of Nadia, who likewise testified that she saw Rodriguez
with a gun (indeed, that he pointed it at her head) while she was
helping Mother push him out of the house.

¶27 But Rodriguez points to no place in the record where any
of the victims (or any other witness, for that matter) testified that

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State v. Rodriguez

Rodriguez ever detained or controlled the victims’ movements
against their will through any threat, force, or anything else or in
any manner that did not involve a gun.

¶28 As a result, when the jury heard testimony from the
defense witnesses suggesting that Rodriguez did not even have a
gun, the jury was presented with something of an all-or-nothing
evidentiary dynamic. If the jury believed the State’s witnesses and
concluded that Rodriguez had a gun and detained his victims
with threats involving it, the result would be convictions for
aggravated kidnapping. But if the jury instead believed the
defense witnesses and concluded that Rodriguez did not have a
gun, there would have been no basis from the evidence that was
presented for both “acquitting [Rodriguez] of the offense
charged” (which was aggravated kidnapping) and “convicting
him” of the proposed lesser included offense (which was
kidnapping). Powell, 2007 UT 9, ¶ 24 (quotation simplified).

¶29 Rodriguez contends otherwise for several reasons, but we
find none of them persuasive.

¶30 First, Rodriguez points out that jurors were instructed that
they “do not have to believe everything that a witness said,” but
that jurors can instead “believe part and disbelieve the rest.” See
State v. Hernandez, 2024 UT App 127, ¶ 14, 557 P.3d 639 (noting
that “the jury was free to believe or disbelieve all or part of” a
witness’s testimony (quotation simplified)), cert. denied, 561 P.3d
691 (Utah 2024). Fair enough. But still, to be entitled to a lesser
included offense instruction, there has to be a “rational basis”
from “the evidence” under which the jury could both acquit the
defendant of the greater offense and convict on the lesser offense.
Powell, 2007 UT 9, ¶ 24 (quotation simplified). So here, it’s true
that jurors could disbelieve the victims’ claims that Rodriguez
threatened them with a gun. What Rodriguez is proposing,
however, moves beyond simply disbelieving the victims’
testimonies. Because no witness claimed that Rodriguez detained

20230723-CA 11 2025 UT App 84
State v. Rodriguez

or restrained anyone in any manner that didn’t involve a gun,
Rodriguez’s claim would require jurors to invent new testimony
that didn’t exist and surmise that there may have been some other
mechanism by which he detained or restrained those victims
against their will. We’ve been pointed to no authority that would
entitle a defendant to a lesser included offense instruction in such
a circumstance.

¶31 Second, Rodriguez points to evidence suggesting that he
was intoxicated. But aggravated kidnapping and kidnapping
have the same mens rea, compare Utah Code § 76-5-301(2), with id.
§ 76-5-302(2), so proof of intoxication wouldn’t have provided a
basis for acquitting Rodriguez of aggravated kidnapping but
convicting him of kidnapping instead.

¶32 Finally, Rodriguez suggests that Joseph and Nadia had a
motive to lie. Specifically, Rodriguez suggests that they may have
been motivated by the possibility of obtaining U visas if it were
shown that they were victims of a crime. But Rodriguez makes no
similar claim about Arturo or Juan, so this alleged motive has little
(if any) impact on the counts relating to them. Moreover,
Rodriguez has not shown how this alleged motive would have
caused Joseph and Nadia to lie about the gun itself (as opposed to
lying about the alleged kidnapping more generally). Indeed, to
the contrary, the victim advocate testified at trial that “there’s no
requirement that there has to be a gun used in a crime” for a victim
to obtain a U visa.

¶33 In any event, this argument also suffers from the same
problem identified above. Even if the jury were inclined to
disbelieve the testimonies from Joseph and Nadia, Rodriguez
would still need to show, for purposes of this claim, that there was
some basis in the evidence for not just acquitting him of
aggravated kidnapping, but also for convicting him of
kidnapping. Even with this alleged motive for Joseph and Nadia
to lie, Rodriguez still fails to point to evidence that was presented

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State v. Rodriguez

to the jury that would show how he could have been convicted of
kidnapping as opposed to aggravated kidnapping.

¶34 In short, we agree with the district court that, on the
evidence presented at trial, there was no support for a finding that
Rodriguez kidnapped anyone without using a gun. As a result,
we see no error in the district court’s denial of Rodriguez’s request
for a lesser include offense instruction on kidnapping.

II. Merger

¶35 Utah’s merger doctrine “is designed to protect criminal
defendants from being twice punished for committing a single act
that may violate more than one criminal statute.” State v. Lesky,
2021 UT App 67, ¶ 17, 494 P.3d 382 (quotation simplified). The
merger doctrine is codified in Utah Code section 76-1-402, and
that statute “contains two merger tests.” State v. Corona, 2018 UT
App 154, ¶ 44, 436 P.3d 174 (quotation simplified). “Subsection (1)
addresses whether the same criminal act forms the basis for
multiple criminal charges,” and this test is sometimes referred to
as “the same act provision.” Lesky, 2021 UT App 67, ¶ 17
(quotation simplified). “Subsection (3) addresses included
offenses—predominantly lesser-included offenses,” and it is
sometimes referred to as “the lesser included offense provision.”
Id. (quotation simplified).

¶36 As noted, Rodriguez was convicted of three counts of
aggravated kidnapping (with one count each for Arturo, Juan,
and Joseph), as well as three counts of aggravated assault (with,
again, one count for each of the three victims). On appeal,
Rodriguez argues that the aggravated kidnapping and
aggravated assault convictions should have merged under either
same act merger or lesser included offense merger. Rodriguez
acknowledges that this issue was not preserved, so he asks us to
review it for plain error or ineffective assistance of counsel.

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State v. Rodriguez

¶37 To demonstrate plain error, Rodriguez “must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful, i.e., absent the error, there
is a reasonable likelihood of a more favorable outcome for [him],
or phrased differently, our confidence in the verdict is
undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(quotation simplified). To show that he received ineffective
assistance of counsel, Rodriguez “must show (1) that counsel’s
performance was deficient and (2) that the deficient performance
prejudiced the defense.” State v. Meik, 2024 UT App 46, ¶ 31, 547
P.3d 878 (quotation simplified), cert. denied, 554 P.3d 923 (Utah
2024). An “ineffective assistance claim fails . . . when the proposed
motion would have been futile.” State v. Rivera, 2022 UT App 44,
¶ 24, 509 P.3d 257; see also State v. Makaya, 2020 UT App 152, ¶ 9,
476 P.3d 1025 (“[I]t is not unreasonable for counsel to choose not
to make a motion that would not have been granted.”).

¶38 Here, we see no basis for concluding that the court plainly
erred, or, instead, that defense counsel provided ineffective
assistance.

A. Same Act Merger

¶39 The same act merger test is set forth in Utah Code section
76-1-402(1), which provides that “when the same act of a
defendant under a single criminal episode shall establish offenses
which may be punished in different ways under different
provisions of this code, the act shall be punishable under only one
such provision.” “The clear intent of this section is that a
defendant may not be punished twice for the same act.” Lesky,
2021 UT App 67, ¶ 19 (quotation simplified). The word “[a]ct” in
this test “means a voluntary bodily movement and includes
speech.” Utah Code § 76-1-101.5(1). The same act merger test
draws a distinction between “the same act” and “independent
acts.” Lesky, 2021 UT App 67, ¶ 19 (quotation simplified). Acts are
“independent if they (1) are in no way necessary to each other or

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State v. Rodriguez

(2) are sufficiently separated by time and place.” Id. (numbering
added, quotation otherwise simplified). And because the two
conditions are separated by an “or,” acts “need only satisfy one of
these conditions to be classified as independent.” In re D.A.M.G.,
2023 UT App 101, ¶ 28, 537 P.3d 250.

¶40 In Rodriguez’s view, the aggravated kidnappings in this
case were accomplished by the “same acts” as the aggravated
assaults, thus meaning that same act merger necessarily applied.
On the state of the record and the briefing presented to us, we
disagree.

¶41 To determine which acts supported the charges, we start
by setting forth the elements of the two offenses in question.

• Aggravated Kidnapping. As discussed above, the
aggravated kidnapping charges required proof that
Rodriguez used or threatened to use a “dangerous
weapon” “in the course of committing . . .
kidnapping.” Utah Code § 76-5-302(2)(a). (As noted,
the jury chose not to convict of the offense of
aggravated kidnapping by unlawful detention.) The
underlying kidnappings, in turn, required proof
that Rodriguez “detain[ed] or restrain[ed]” each of
his three victims “for any substantial period of time”
or “in circumstances exposing the individual[s] to
risk of bodily injury.” Id. § 76-5-301(2)(a), (b). With
respect to Joseph, the State could also prove the
offense by showing that Rodriguez “move[d]”
Joseph “any substantial distance.” Id. § 76-5-
301(2)(e).

• Aggravated Assault. The aggravated assault
charges required proof of “a threat, accompanied by
a show of immediate force or violence, to do bodily
injury to another,” or “an act . . . with unlawful force
or violence, that cause[d] bodily injury to another or

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State v. Rodriguez

create[d] a substantial risk of bodily injury to
another” with the use of a dangerous weapon. Id.
§ 76-5-103(2)(a), (b). Interpreting this statute, we
have recently held that the act of pointing a gun in a
person’s direction can constitute aggravated
assault, see State v. Graydon, 2023 UT App 4, ¶ 39, 524
P.3d 1034, cert. denied, 531 P.3d 731 (Utah 2023), with
the “threat” component of the offense being
satisfied “if a reasonable person could believe that
the defendant intended to use the force in question,”
State v. Brown, 2025 UT App 31, ¶ 22, 566 P.3d 737
(quotation simplified).

¶42 We’ve recently discussed and applied the same act merger
test in two cases—State v. Lesky and In re D.A.M.G.—and our
analysis from those cases is instructive here.

¶43 In Lesky, the defendant (Lesky) approached his ex-
girlfriend and her new boyfriend as they were sitting on her
porch, pulled a gun out, pointed it at them, and then repeatedly
ordered them to go inside her house. See 2021 UT App 67, ¶ 3. The
ex-girlfriend and her boyfriend refused several times, and this
“went on for a while over and over.” Id. The ex-girlfriend then
stood up and got between Lesky and her boyfriend. See id. ¶ 4. At
that point, Lesky placed the gun against her head and pulled the
trigger, but the gun did not fire. See id. ¶¶ 5–6. From these facts,
Lesky was later convicted of several offenses—including, as
relevant for our discussion here, one count each of aggravated
assault and aggravated kidnapping relating to his actions toward
the ex-girlfriend on the porch. See id. ¶ 16. On appeal, Lesky
argued that it was plain error for the district court not to merge
those offenses, claiming that they were committed by the same
act. See id. ¶¶ 18, 21. But we disagreed, instead concluding that the
two crimes were based on independent acts under both
conditions of the test identified above. See id. ¶¶ 22–23.

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State v. Rodriguez

¶44 First, we held that the two offenses “were in no way
necessary to each other.” Id. ¶ 22 (quotation simplified). We held
that the aggravated kidnapping of the ex-girlfriend “was
accomplished when Lesky held [her] at gunpoint, thereby
restricting her movements,” while the aggravated assault “was
accomplished by putting the gun to [her] head and pulling the
trigger.” Id. In reaching this conclusion, we stressed that the
“separate act” of putting the gun to the ex-girlfriend’s head “was
not the means by which the kidnapping was accomplished—each
element of aggravated kidnapping was satisfied when Lesky
restricted the ex-girlfriend’s movements by holding her at
gunpoint.” Id. 6

¶45 Second, we also held that the acts supporting the two
charges were separated by “time and circumstances.” Id. ¶ 23. We
noted that when Lesky approached his ex-girlfriend and her
boyfriend on the porch, “drew a gun, and unlawfully detained
them against their will,” he had “accomplish[ed] the aggravated
kidnapping.” Id. We noted that the ex-girlfriend then “stood up
and placed herself between Lesky and the boyfriend,” after which
Lesky and his victims had a back-and-forth about whether they
would go inside as ordered. Id. We then said that it “was only after
that back-and-forth that Lesky raised the gun to the ex-girlfriend’s
head, pressed the barrel against her temple, and pulled the
trigger.” Id. Even though these events all occurred on the porch in
something of a continuous sequence, we held that the act of
putting the gun to the ex-girlfriend’s head and pulling the trigger
“was not a mere continuation of holding the ex-girlfriend and the
boyfriend at gunpoint but rather an independent act” that was
sufficiently separated so as to constitute a separate offense. Id.
From this, we held that the “district court did not err—much less

6. In contrast to what happened in this case, the jury in Lesky
seems to have convicted Lesky based on the unlawful detention
(plus dangerous weapon) variant of aggravated kidnapping. See
State v. Lesky, 2021 UT App 67, ¶ 22 n.3, 494 P.3d 382.

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State v. Rodriguez

plainly err—by not merging” these two convictions “under the
merger statute’s same act provision.” Id.

¶46 In In re D.A.M.G., the defendant (D.M., who was a juvenile)
was in a bedroom with a teenage girl (the victim) that he knew
from high school and another friend. See 2023 UT App 101, ¶ 4.
While there, D.M. sexually assaulted the victim; after a short
pause, D.M. held her down while his friend sexually assaulted
her. See id. ¶¶ 3–5. D.M. was later charged with both aggravated
sexual assault and aggravated kidnapping, see id. ¶ 7, and after a
bench trial, the juvenile court found that D.M. had committed
both offenses, see id. ¶ 2. On appeal, D.M. argued that the two
crimes should have merged under the same act merger statute.
See id. ¶ 20. But we disagreed. Applying Lesky, we held that the
“two charges were accomplished at different points in the
criminal episode.” Id. ¶ 28. We held that “each element of
aggravated sexual assault was satisfied” when D.M. committed
his own sexual assault before the brief pause, and we held that
“each element of aggravated kidnapping was satisfied” when
D.M. then held the victim down as his friend committed his own
sexual assault. Id. (quotation simplified). We accordingly
concluded that these crimes were based on separate acts because
it was not “necessary” for D.M.’s own sexual assault for D.M. to
then detain the victim while his friend committed his own sexual
assault of her (or vice versa). Id. (quotation simplified).

¶47 Applying these principles to this appeal, we conclude that
same act merger likewise did not apply to the charges in
question—at least not to a degree that would be necessary to
prevail on this unpreserved claim.

¶48 Arturo and Juan. As noted, Arturo and Juan testified that
they were in a car and were about to leave when Rodriguez came
outside, made a point of showing them his gun—i.e., he lifted his
shirt and even partially pulled the firearm out of his pocket—and
then ordered them to “go back” inside because “the party wasn’t

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State v. Rodriguez

over.” Rodriguez then walked behind the two men as they
entered the house, and he then took them into the dining room.
Once in the dining room, Rodriguez pulled the gun out of his
pocket, pointed it at each of them, and told them to sit down. At
that point, Arturo and Juan sat down as ordered. After they did,
they remained sitting for a period of about “five to ten minutes,”
during which time Rodriguez was still “pointing the gun” at
them.

¶49 Our analysis of this portion of this claim is complicated by
the fact that the jury was not given a special verdict form that
asked it to decide which act formed the basis for each conviction—
i.e., the jury was not asked to delineate which acts formed the
basis for the aggravated kidnapping and aggravated assault
convictions. And we further note that, on appeal, Rodriguez has
not argued that defense counsel was ineffective for not requesting
a special verdict form along these lines.

¶50 In its brief on appeal, the State has argued that the
aggravated kidnappings could have been committed by
Rodriguez’s initial actions in which, after pointedly displaying his
gun to Arturo and Juan at the car (which could reasonably be
perceived as a threat involving the gun), he ordered Arturo and
Juan to exit their car against their will and return to the house. For
purposes of a merger analysis only, we agree with the State.

¶51 Starting with the first condition set forth in Lesky,
Rodriguez threatened to use the gun by displaying it to Arturo
and Juan at the car, and he then detained them against their will
by ordering them (with, as Arturo testified, a “bold” and
“threaten[ing]” voice) to go inside and then following them as
they did so. And he further accomplished that end by ordering
them to sit in the dining room at gunpoint. At that point, he had
accomplished his criminal purpose of using the threat of gun
violence to compel the two men to get out of their car and re-enter
the home. As noted, after this occurred, the two men remained

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State v. Rodriguez

sitting in the dining room for a period of “five to ten minutes,”
during which time Rodriguez kept “pointing the gun” at them.
But this second round of gun-pointing was not necessary to the
first. After all, once the two men sat down, Rodriguez had already
returned them to the house against their will by threat of gun
violence. 7

¶52 Moreover, it also appears that, for purposes of the second
Lesky condition, these offenses were “separated by time and
place.” Id. ¶ 19 (quotation simplified). Again, Lesky held that there
was sufficient separation between events that occurred on the
same porch in the same sequence, because the earlier act (pointing
a gun at the ex-girlfriend and ordering her to go inside) was
separated from the subsequent act (placing the gun against the ex-
girlfriend’s head and pulling the trigger) by a “back-and-forth”
dialogue and by the ex-girlfriend standing up and placing herself
between Lesky and her boyfriend. Id. ¶ 23. Here, the earlier acts
that supported the aggravated kidnappings (Rodriguez
displaying his gun, ordering Arturo and Juan inside, following
them to the house, and ordering them to sit) were separated in
some sense from the second “five to ten minute[]” period in which
he kept them sitting at gunpoint, particularly given that most of
the earlier events occurred outside the house itself.

7. On appeal, Rodriguez has argued that, for purposes of a merger
test, the acts that occurred outside and inside the home all
qualified as the “same act.” But he has not meaningfully argued
that, if the two sequences are separated in the manner suggested
above, the earlier acts were insufficient to support an aggravated
kidnapping charge. More particularly, Rodriguez has not pointed
to any authority suggesting that, for purposes of an aggravated
kidnapping charge, the jury could not find that the forced walk
inside the house satisfied either the “substantial period of time”
or “circumstances exposing the individual to risk of bodily
injury” elements of the offense. See Utah Code § 76-5-301(2)(a), (b).

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State v. Rodriguez

¶53 We recognize that this is a close call, and we do have some
concern about whether the earlier events could support an
aggravated kidnapping on their own or about whether the line
between the two is quite as clear as the State suggests. But we
again note that this claim is unpreserved. As a result, to show
plain error, it’s not enough for Rodriguez to just show error.
Rather, he must show that any error was obvious. See State v.
Harris, 2024 UT App 191, ¶ 36, 562 P.3d 1215 (“An error is obvious
only if the law governing the error was clear at the time the
alleged error was made. But an error is not obvious if there is no
Utah case law addressing this specific factual scenario and the law
that did exist at the time does not clearly encompass the situation
in question.” (quotation simplified)), cert. denied, 564 P.3d 961
(Utah 2025). And with respect to ineffective assistance, such a
claim fails if “trial counsel could have reasonably believed that an
objection was futile” “under the prevailing law at the time of
trial.” State v. Ring, 2018 UT 19, ¶ 43, 424 P.3d 845.

¶54 Here, Lesky was the most recent pronouncement on this test
at the time of trial, and Lesky held that once an earlier offense is
“accomplished,” additional acts that constitute a new offense do
not trigger same act merger. 2021 UT App 67, ¶¶ 22–23. On the
state of the briefing and the arguments presented to us, and
particularly given that these are unpreserved claims, we see no
basis for disregarding the State’s assertion that the earlier events
accomplished the offense of aggravated kidnapping in a manner
that was conceptually distinct from the acts that subsequently
occurred during the “five to ten minute[]” period inside, which
could support separate convictions for aggravated assault. We
accordingly see no grounds for concluding that there was either
obvious error or ineffective assistance in this regard.

¶55 Joseph. We reach the same conclusion with respect to the
charges involving Joseph, and we do so without any hesitation.
Joseph testified that Rodriguez entered his car, pulled out his gun,
and told Joseph to “take him.” Joseph then drove Rodriguez

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State v. Rodriguez

around for an hour, during which time Rodriguez directed him
where to turn and occasionally pulled the gun out and pointed it
at him. Joseph testified that Rodriguez pointed the gun at him
“more than five or six times” during the drive. At the end of the
drive, Rodriguez got out of the car, pointed the gun at Joseph, and
demanded Joseph’s shirt.

¶56 From this, it seems clear that the commands to drive, which
were accompanied by direct threats with a gun, accomplished the
offense of aggravated kidnapping. When Rodriguez then got out
of the car and pointed the gun at Joseph again while ordering
Joseph to give him his shirt, he accomplished the offense of
aggravated assault. So viewed, it was not “necessary” for
Rodriguez to point the gun at Joseph outside the car to have
committed the earlier offense of aggravated kidnapping, nor was
it “necessary” for Rodriguez to order Joseph to drive him around
at gunpoint to have committed the offense of aggravated assault.
Id. ¶ 22 (quotation simplified). Because these were entirely
separate acts, there was no basis for applying same act merger to
these offenses.

B. Lesser Included Offense Merger

¶57 Rodriguez next contends that the offenses should have
merged under lesser included offense merger. As set forth in Utah
Code section 76-1-402(3)(a), that version of merger states that a
“defendant may be convicted of an offense included in the offense
charged but may not be convicted of both the offense charged and
the included offense. An offense is so included when . . . [i]t is
established by proof of the same or less than all the facts required
to establish the commission of the offense charged.”

¶58 “Whether two offenses stand in a greater-lesser
relationship to each other is determined by comparing the
statutory elements of the crimes as a theoretical matter and, where
necessary, by reference to the facts proved at trial.” Lesky, 2021 UT
App 67, ¶ 24 (quotation simplified). “But even if there is overlap

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State v. Rodriguez

in the statutory elements, if the convictions rely on materially
different acts, then one crime will not be a lesser included offense
of another.” Id. (quotation simplified).

¶59 For largely the same reasons set forth above relating to
same act merger, we conclude that lesser included offense merger
also did not apply. As explained, the aggravated kidnapping
charges relating to Arturo and Juan seem to have been based on
the acts by which Rodriguez compelled them to leave the car
against their will and return to the house, while the aggravated
assault charges seem to have been based on Rodriguez pointing
the gun at them during a second period once inside the house.
And as also explained, the aggravated kidnapping charge relating
to Joseph seems to have been based on the forced drive to the area
of Ex-Girlfriend’s house, while the aggravated assault charge
seems to have been based on the act of pointing the gun at him
outside the car while demanding his shirt. We accordingly see no
basis for applying lesser included offense merger to these charges.

CONCLUSION

¶60 First, the district court did not err by not instructing the
jury on the lesser included offense of kidnapping. Second, because
we see no basis under which the aggravated assault convictions
would have merged with the aggravated kidnapping convictions,
we reject Rodriguez’s contentions that the court plainly erred or
that Rodriguez received ineffective assistance of counsel. We
therefore affirm Rodriguez’s convictions.

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