State v. Salakielu

2024 UT App 5
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
TANIELA S ALAKIELU,
Appellant.
Opinion
No. 20220886-CA
Filed January 11, 2024
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 211904984
Sarah J. Carlquist, Attorney for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES GREGORY K. O RME and R YAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Taniela Salakielu was involved in a prison riot. Following
the riot, Salakielu was charged with aggravated kidnapping and
riot. After considering evidence at a preliminary hearing, the
district court bound Salakielu over for trial as charged. Thereafter,
Salakielu 	moved 	to 	quash 	the 	bindover 	on 	the 	aggravated
kidnapping charge, which motion the court denied. Salakielu now
appeals the court’s interlocutory order denying his motion to
quash. For the reasons set forth herein, we agree with Salakielu
that the district court exceeded its discretion in denying the
motion and accordingly reverse the court’s order and remand the
matter with instruction to grant Salakielu’s motion to quash the
bindover on the aggravated kidnapping charge.

State v. Salakielu
20220886-CA 	2 	2024 UT App 5
BACKGROUND1
¶2 	Salakielu 	is 	an 	inmate 	at 	the 	Utah 	State 	Prison. 	In
November 2020, two corrections officers at the prison smelled a
“strong aroma of alcohol” emanating from a cell assigned to
Salakielu and his cellmate (Cellmate). The officers entered the
empty cell and began conducting a search. During the search, the
officers discovered a bag of fermenting fruit as well as electronics
that did not belong to either Salakielu or Cellmate. The officers
attempted to confiscate the electronics. When Salakielu and
Cellmate noticed what the officers were doing, Cellmate began to
threaten the officers. Salakielu, who was standing in the corridor
outside of the cell, removed his shower shoes and put on tennis
shoes.
¶3 	The interaction between the officers and Salakielu and
Cellmate caught the attention of another inmate (Inmate) who
stepped in and tried to prevent Salakielu and Cellmate from
entering their cell. Inmate stood near the entry to Salakielu and
Cellmate’s cell, between the officers and Salakielu and Cellmate.
Inmate 	tried 	to 	“negotiate” 	with 	the 	officers 	to 	leave 	the
electronics in the cell. When the officers refused, Inmate shut the
cell door, locking the officers inside.
1. “Because this case comes to us on an interlocutory appeal, the
allegations we recite have not been tried and therefore remain
allegations. On interlocutory review, we recount the facts as
alleged and in a light most favorable to the ruling below.” State v.
Stewart, 2018 UT 24, ¶ 2 n.1, 438 P.3d 515 (quotation simplified);
see also State v. Glosenger, 2022 UT App 129, n.2, 521 P.3d 915
(“When we review a magistrate’s bindover decision, we view all
evidence in the light most favorable to the prosecution, draw all
reasonable inferences in favor of the prosecution, and recite the
facts with that standard in mind.” (quotation simplified)), cert.
denied, 525 P.3d 1267 (Utah 2023).

State v. Salakielu
20220886-CA 	3 	2024 UT App 5
¶4 	Thereafter, all inmates in the cellblock were instructed to
“rack in,” meaning to close themselves inside their cells. Salakielu,
Cellmate, 	and 	a 	few 	other 	inmates 	disregarded 	the 	order.
Surveillance video of the cellblock shows Cellmate throwing
metal boxes at the cell holding the officers, as well as Salakielu
pouring shampoo or conditioner in front of a door leading from
the 	cellblock 	into 	the 	yard. 	And 	surveillance 	video 	of 	the
dayroom, which can be accessed from the main corridor of the
cellblock, shows Inmate tying a bed sheet across the door leading
into the dayroom.
¶5 	After approximately an hour from the time they were first
instructed 	to 	rack 	in, 	Salakielu 	and 	Cellmate 	followed 	the
instruction and closed themselves inside an empty cell. But once
inside the cell, Salakielu and Cellmate lit a bed sheet on fire and
pushed it into the hallway.2
¶6 	After all inmates—including Salakielu and Cellmate—
were racked in, prison officers with the Critical Incident Response
Team 	(CIRT) 	entered 	the 	cellblock. 	The 	CIRT 	officers
extinguished the fire and let the officers out of the cell. At that
point, 	the 	officers 	had 	been 	locked 	inside 	the 	cell 	for
approximately 	one 	hour. 	Shortly 	thereafter, 	an 	investigator
(Investigator) arrived on the scene. He examined the scene and
interviewed the officers who had been locked in the cell, as well
as some of the other inmates who had been involved in the riot.
¶7 	The State charged Salakielu with one count of riot and one
count of aggravated kidnapping. During the preliminary hearing
on the matter, the State submitted statements from the officers,
testimony 	from 	Investigator, 	and 	surveillance 	video 	of 	the
cellblock. After reviewing the surveillance video, Investigator
2. It is unclear from the surveillance video whether Salakielu or
Cellmate lit the bed sheet on fire, and both have, at varying times,
claimed responsibility for doing so.

State v. Salakielu
20220886-CA 	4 	2024 UT App 5
explained that based on his experience, it is “common” for
inmates to “lace up”—meaning to change from shower shoes to
tennis shoes—when they are “preparing to get ready to fight.”
Investigator 	also 	explained 	that 	Salakielu 	had 	spread 	the
shampoo or conditioner in front of the door in the cellblock to
make it “a slippery entrance for anyone that enters.” Lastly,
Investigator opined that Inmate had tied the bed sheet to the door
in the dayroom in an attempt to barricade the door “so no one
could get in.”
¶8 	After the State rested, Salakielu argued that the district
court should not bind over the aggravated kidnapping charge for
trial, asserting that he “did not kidnap anybody” because it was
Inmate, not Salakielu, who closed the cell door and intentionally
or knowingly detained the officers in the cell. In response, the
State argued that Salakielu’s actions after Inmate shut the cell
door amounted to kidnapping because “all of [Salakielu’s and
Cellmate’s] actions . . . contribut[ed] to keeping [the officers] in
the cell for a substantial period of time and preventing [the
officers] from getting out.”
¶9 	The district court rejected Salakielu’s argument and bound
him over as charged. Salakielu subsequently moved to quash the
bindover on the aggravated kidnapping charge. At the hearing on
the motion to quash, both parties reiterated the arguments made
at 	the 	preliminary 	hearing. 	Ultimately, 	the 	court 	was
unpersuaded by Salakielu’s arguments and denied his motion to
quash.
ISSUE AND STANDARD OF REVIEW
¶10 	Salakielu appeals the district court’s interlocutory order
denying his motion to quash the bindover, arguing the State failed
to present evidence of all the elements of aggravated kidnapping.
“A decision to bind over a criminal defendant for trial presents a
mixed question of law and fact and requires the application of the

State v. Salakielu
20220886-CA 	5 	2024 UT App 5
appropriate bindover standard to the underlying factual findings.
In the bindover context, appellate courts give limited deference to
a magistrate’s application of the bindover standard to the facts of
each case.” State v. Glosenger, 2022 UT App 129, ¶ 13, 521 P.3d 915
(quotation simplified), cert. denied, 525 P.3d 1267 (Utah 2023).
ANALYSIS
¶11 	“To bind a defendant over for trial, the State must show
probable cause at a preliminary hearing by presenting sufficient
evidence to establish that the crime charged has been committed
and that the defendant has committed it.” State v. Clark, 2001 UT
9, ¶ 10, 20 P.3d 300 (quotation simplified). Establishing probable
cause at this stage therefore requires that the State “produce
believable evidence of all the elements of the crime charged.” Id.
¶ 15 (quotation simplified).
¶12 	In this case, the State charged Salakielu with aggravated
kidnapping. As relevant here, a person is guilty of kidnapping
(the predicate offense to aggravated kidnapping) when the person
“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.” Utah Code § 76-5-
301(2). Thus, to bind Salakielu over on kidnapping, the State had
to present evidence that Salakielu intentionally or knowingly
detained the officers for a substantial period of time.
¶13 	Salakielu contends the State did not put forth sufficient
evidence to support binding him over on aggravated kidnapping
because there was no evidence that Salakielu “intentionally or
knowingly . . . detaine[d]” the officers for any substantial period
of time, see id., and the State’s aggravated kidnapping theory
rested solely on the notion that Salakielu’s alleged riotous conduct
after Inmate closed the officers in the cell satisfied the detention
element of kidnapping. Relying on our supreme court’s decision
in State v. Couch, 635 P.2d 89 (Utah 1981), Salakielu contends that

State v. Salakielu
20220886-CA 	6 	2024 UT App 5
none of his actions were sufficient to support a charge for
kidnapping because Utah law “requires a period of detention
longer than the minimum inherent in the commission” of other
charged conduct, id. at 93, and here, “the officers’ detention was
merely 	incidental 	to 	Salakielu’s 	alleged 	riotous 	conduct.”
Moreover, 	Salakielu 	argues 	that 	the 	State 	failed 	to 	present
sufficient evidence to 	establish 	that by engaging in riotous
behavior 	after 	Inmate 	closed 	the 	officers 	in 	the 	cell, 	he
intentionally or knowingly detained the officers in this case.
¶14 	In response, the State does not grapple with the merits of
Salakielu’s argument that the evidence supporting the detention
element of kidnapping was insufficient. Instead, the State cites
section 76-1-402 of the Utah Code and asserts that Salakielu’s
argument 	“presents 	a 	question 	based 	on 	merger,” 	that 	is,
“whether detaining the officers merges with the alleged riot.”3 To
support its position, the State contends that the supreme court’s
analysis in Couch is “ultimately about merger” and not about
whether sufficient evidence supported each statutory element of
kidnapping. Resolution of Salakielu’s appeal therefore turns on
whether Couch is properly read as defining the elements of
kidnapping or whether the Utah Supreme Court was expounding
on the common law merger doctrine.
¶15 	In Couch, the defendant drove the intoxicated victim from
her workplace past her home without her consent and took her to
3. Merger is applied in appropriate cases “to protect criminal
defendants from being twice punished for committing a single act
that may violate more than one criminal statute” and “is most
commonly applied to situations involving a defendant who has
been charged with committing both a violent crime, in which a
detention is inherent, and the crime of kidnapping based solely
on the detention necessary to the commission of the companion
crime.” State v. Diaz, 2002 UT App 288, ¶ 17, 55 P.3d 1131, cert.
denied, 63 P.3d 104 (Utah 2003).

State v. Salakielu
20220886-CA 	7 	2024 UT App 5
a remote location where he sexually assaulted her. Id. at 91–92.
Following a trial, a jury found the defendant guilty of, as relevant
here, aggravated sexual assault and kidnapping. Id. at 91. On
appeal, the defendant challenged the kidnapping conviction on
the ground that there was “insufficient evidence” of kidnapping.
Id. Specifically, the defendant argued “that his act of detaining
[the victim] was merely incidental to the crime of aggravated
sexual assault.” Id. at 92.
¶16 	The supreme court affirmed the defendant’s kidnapping
conviction. In so doing, the court first noted, in agreement with
the defendant, that Utah’s merger statute “has no application to
this 	case.” 	Id. 	at 	92 	n.1. 	The 	court 	then 	analyzed 	Utah’s
kidnapping statute to ascertain the meaning of kidnapping. See id.
at 92–93. In a section titled “The Meaning of Kidnapping,” the
court explained that unlike “[s]ome jurisdictions [that] have
adhered to the traditional view that any detention . . . , however
slight or however closely related to another crime, is sufficient to
support a kidnapping conviction,” “our Utah statute expressly
limits the circumstances under which a detention will constitute
kidnapping.” Id. at 92.
¶17 	Turning next to the text of the kidnapping statute, which
requires, 	among 	other 	things, 	“that 	the 	detention 	be 	for 	a
‘substantial period,’” the supreme court focused on defining the
conditions that 	would 	constitute 	a 	“detention” 	sufficient 	to
support 	a 	conviction for 	kidnapping 	separate 	from 	another
charge. 	Id. 	at 	93. 	The 	court 	found 	that 	although 	the 	term
“substantial period” “can be defined only by reference to a
specific fact situation, it apparently requires a period of detention
longer than the minimum inherent in the commission of a rape or
a robbery.” Id. Applying this definition of “substantial period” to
the facts of the case, the court concluded that sufficient evidence
supported the defendant’s kidnapping conviction because “the
kidnapping was not merely incidental or subsidiary to some other

State v. Salakielu
20220886-CA 	8 	2024 UT App 5
crime, but was an independent, separately punishable offense.”
Id.
¶18 	We conclude that Couch is properly read as a case about the
elements 	of 	kidnapping, 	rather 	than 	merger. 	Critically, 	the
supreme 	court’s 	analysis 	in 	Couch 	hinged 	on 	the 	court’s
interpretation 	of 	the 	statutory 	elements 	of 	kidnapping—
specifically 	the 	detention 	element—and 	whether 	sufficient
evidence existed to support the charge of aggravated kidnapping
as an act separate from the rape charge. Further, this reading is
supported by several textual indicators in the Couch opinion itself,
including (1) that the court framed the defendant’s issue on
appeal 	as 	whether 	“there 	was 	insufficient 	evidence 	of
kidnapping,” id. at 91; (2) that the court expressly acknowledged
that Utah’s merger statute “has no application to this case,” id. at
92 n.1; and (3) that the court’s discussion of the sufficiency issue
occurred in a section titled “The Meaning of Kidnapping,” id. at
92. Consequently, we agree with Salakielu that Couch’s exposition
of 	the 	elements 	of 	kidnapping 	and 	recognition 	that 	the
defendant’s actions in detaining the victim separately from the
sexual assault acts is a ruling on sufficiency and not merger, and
thus is controlling in this case.
¶19 	We do acknowledge that from Couch sprung a number of
cases addressing the issue of common law merger. See, e.g., State
v. Finlayson, 2000 UT 10, 994 P.2d 1243, overruled by State v. Wilder,
2018 UT 17, 420 P.3d 1064, and State v. Johnson, 2022 UT 14, 508
P.3d 100; State v. Lee, 2006 UT 5, 128 P.3d 1179, overruled by Wilder,
2018 UT 17; State v. Kataria, 2014 UT App 236, 336 P.3d 1093, cert.
denied, 343 P.3d 708 (Utah 2015); Met v. State, 2016 UT 51, 388 P.3d
447; Wilder, 2018 UT 17. However, at the time Couch was decided,
the merger statute was already in effect. Thus, if the supreme
court had intended to make Couch a decision about the merger
doctrine, it could have. But as noted, it did not. Moreover, none of
these 	subsequent 	cases have 	purported to 	overturn 	Couch’s
analysis of the elements of a kidnapping charge as they relate to a

State v. Salakielu
20220886-CA 	9 	2024 UT App 5
sufficiency challenge. Accordingly, we will not go back and
reread Couch as being a common law merger case merely because
some subsequent cases have occasionally used it as a springboard
for some of the principles used in Utah’s merger doctrine.
¶20 	Because Couch was an elements case, not a merger case, and
because the State has not responded to Salakielu’s argument that
insufficient 	evidence 	exists to 	support 	the bindover 	on 	the
aggravated 	kidnapping 	charge, 	the 	State 	has 	waived 	this
argument.4 See State v. Roberts, 2015 UT 24, ¶ 20, 345 P.3d 1226
(“[A]n 	appellee 	who 	fails 	to 	respond 	to 	the 	merits 	of 	an
appellant’s argument will risk default.”); Broderick v. Apartment
Mgmt. Consultants, LLC, 2012 UT 17, ¶ 10, 279 P.3d 391 (explaining
that appellate courts “require the brief of the appellee to contain
the contentions and reasons of the appellee with respect to the
issues presented in the opposing brief” (quotation simplified)). As
a result, on the facts of this case, Salakielu necessarily prevails on
appeal.
CONCLUSION
¶21 	The district court abused its discretion when it denied
Salakielu’s 	motion 	to 	quash 	the 	bindover 	for 	aggravated
kidnapping. The State did not put forth sufficient evidence to
support 	the 	bindover 	because 	there 	was 	no 	evidence 	that
Salakielu intentionally or knowingly detained the officers for a
substantial period of time separate from any riotous behavior on
his part. We therefore reverse the court’s order and remand the
matter with instruction to quash Salakielu’s bindover on the
aggravated kidnapping charge.
4. Indeed, at oral argument before this court, the State expressly
agreed with Judge Tenney that if we interpret Couch as a
sufficiency case, then Salakielu must prevail because the State has
not otherwise responded to Salakielu’s argument.