State v. Pullman , 738 Utah Adv. Rep. 61 ( 2013 )


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    2013 UT App 168
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Plaintiff and Appellee,
    v.
    DONALD J. PULLMAN,
    Defendant and Appellant.
    Opinion
    No. 20110212‐CA
    Filed July 5, 2013
    Fifth District, Cedar City Department
    The Honorable G. Michael Westfall
    No. 101500047
    J. Bryan Jackson, Attorney for Appellant
    John E. Swallow and Ryan D. Tenney, Attorneys
    for Appellee
    JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
    JUDGES GREGORY K. ORME and JAMES Z. DAVIS concurred.
    VOROS, Judge:
    ¶1      Donald J. Pullman appeals from his convictions for one
    count of sodomy on a child and two counts of aggravated sexual
    abuse of a child, first degree felonies. See Utah Code Ann. §§ 76‐5‐
    403.1, ‐404.1 (LexisNexis 2012).1 He contends (1) that the evidence
    presented was insufficient to support his conviction, (2) that the
    jury was improperly instructed, (3) that a definitional statute is
    unconstitutionally vague, (4) that the trial court erred in admitting
    certain evidence, and (5) that his trial counsel was ineffective. We
    affirm in part and reverse and remand in part.
    1. Where no changes material to our analysis have occurred, we
    cite the 2012 version of the Utah Code for the reader’s convenience.
    State v. Pullman
    BACKGROUND2
    ¶2      Pullman began molesting Victim on her twelfth birthday
    and continued to do so weekly or biweekly for about a year.
    Specifically, Victim testified that Pullman regularly grabbed her
    breasts and buttocks, both over and under her clothing. On one
    occasion, Pullman attempted to engage in anal sex with Victim. At
    trial, Pullman’s defense was that these events did not occur and
    that Victim had made up the events to retaliate against him. In fact,
    a defense witness testified that she asked Victim “why she was
    doing this” and that Victim responded that Pullman had not
    allowed her to attend a party and had called her a “slut.”
    ¶3    Pullman was charged with one count of sodomy on a child
    and two counts of aggravated sexual abuse of a child, all first
    degree felonies. The jury convicted Pullman on all counts. He
    appeals.
    ISSUES AND STANDARDS OF REVIEW
    ¶4      First, Pullman contends that the evidence presented to the
    jury was insufficient to support his convictions. In addressing an
    insufficiency of the evidence claim, “we review the evidence and
    all inferences which may reasonably be drawn from it in the light
    most favorable to the verdict [and] reverse . . . only when the
    evidence, so viewed, is sufficiently inconclusive . . . that reasonable
    minds must have entertained a reasonable doubt that the
    defendant committed the crime of which he was convicted.” State
    v. Hamilton, 
    827 P.2d 232
    , 236 (Utah 1992) (citation and internal
    quotation marks omitted).
    2. We view the facts in the light most favorable to the jury’s verdict
    and recite them accordingly, except as necessary to fully
    understand the issues on appeal. See State v. Martin, 
    2002 UT 34
    ,
    ¶ 2 n.1, 
    44 P.3d 805
    .
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    State v. Pullman
    ¶5     Second, Pullman contends that a manifest injustice occurred
    in the drafting of a jury instruction. “Unless a party objects to an
    instruction or the failure to give an instruction, the instruction may
    not be assigned as error except to avoid a manifest injustice.” Utah
    R. Crim. P. 19(e). Generally, “the term ‘manifest injustice’ is
    synonymous with the ‘plain error’ standard.” State v. Casey, 
    2003 UT 55
    , ¶ 40, 
    82 P.3d 1106
     (citation and internal quotation marks
    omitted). “[T]o establish the existence of plain error and to obtain
    appellate relief from an alleged error that was not properly
    objected to, the appellant must show . . . (i) [a]n error exists; (ii) the
    error should have been obvious to the trial court; and (iii) the error
    is harmful.” State v. Dunn, 
    850 P.2d 1201
    , 1208 (Utah 1993).
    ¶6      Third, Pullman contends that Utah Code section 76‐5‐407,
    which defines what kind of touching satisfies the actus reus
    elements of various sexual offenses, is unconstitutional because it
    is “so broad as to include even lawful or appropriate contact.”
    When preserved, “[w]e review constitutional challenges for
    correctness.” See State v. Manwaring, 
    2011 UT App 443
    , ¶ 12, 
    268 P.3d 201
    . However, claims not raised before the trial court
    generally may not be raised on appeal. State v. Holgate, 
    2000 UT 74
    ,
    ¶ 11, 
    10 P.3d 346
    . This “preservation rule applies to every claim,
    including constitutional questions, unless a defendant can
    demonstrate that ‘exceptional circumstances’ exist or ‘plain error’
    occurred.” 
    Id.
     The exceptional circumstances exception “applies
    primarily to rare procedural anomalies.” Dunn, 850 P.2d at 1209
    n.3; see also State v. Irwin, 
    924 P.2d 5
    , 8 (Utah Ct. App. 1996) (noting
    that the exception allows an appellate court to determine “that
    even though an issue was not raised below and even though the
    plain error doctrine does not apply, unique procedural
    circumstances nonetheless permit consideration of the merits of the
    issue on appeal”).
    ¶7      Fourth, Pullman contends that the trial court erred in
    admitting two pieces of evidence: (1) his prior conviction for
    lewdness and (2) testimony by his ex‐wife that Pullman had
    repeatedly sought to engage in anal sex with her. He argues that
    this evidence should have been excluded under both rules 403 and
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    State v. Pullman
    404 of the Utah Rules of Evidence. See Utah R. Evid. 403
    (LexisNexis 2012); 
    id.
     R. 404.3 “We review a trial court’s decision to
    admit or exclude evidence under [r]ule 403 . . . under an abuse of
    discretion standard . . . .” Diversified Holdings, LC v. Turner, 
    2002 UT 129
    , ¶ 6, 
    63 P.3d 686
    . Similarly, “we review a trial court’s decision
    to admit evidence under rule 404(b) of the Utah Rules of Evidence
    under an abuse of discretion standard.” State v. Nelson‐Waggoner,
    
    2000 UT 59
    , ¶ 16, 
    6 P.3d 1120
    . In doing so, we “review the record
    to determine whether the admission of other bad acts evidence was
    scrupulously examined by the trial judge in the proper exercise of
    that discretion.” 
    Id.
     (citation and internal quotation marks omitted).
    ¶8     Fifth, Pullman contends that he received ineffective
    assistance of counsel at trial in relation to his jury instruction and
    admissibility of evidence claims. “An ineffective assistance of
    counsel claim raised for the first time on appeal presents a question
    of law.” State v. Clark, 
    2004 UT 25
    , ¶ 6, 
    89 P.3d 162
    .
    ANALYSIS
    I. Sufficiency of the Evidence
    ¶9     Pullman first contends that the evidence presented at trial
    was insufficient to support his convictions because Victim’s
    testimony “lacked specificity as to time, place, or circumstance.”
    The heart of Pullman’s complaint is that Victim did not testify as to
    the time or geographic location of the abusive acts. Victim testified
    3. Because the rules in effect at the time of the offense do not differ
    in any way material to our analysis from those currently in effect,
    we cite the current version of the Utah Rules of Evidence for the
    convenience of the reader. See Utah R. Evid. 403 advisory
    committee note (stating that the 2011 “changes are intended to be
    stylistic only” and “[t]here is no intent to change any result in any
    ruling on evidence admissibility”); 
    id.
     R. 404 advisory committee
    note (same).
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    State v. Pullman
    that the events supporting the sodomy on a child charge occurred
    some time between August and November 2008. She also testified
    that Pullman groped her inappropriately once every week or two
    between 2007 and 2008 and that this conduct occurred in Cedar
    City.
    ¶10 Victim’s testimony was sufficient on this point. Our
    supreme court noted in State v. Fulton that “time is not a statutory
    element of the offense” of sodomy on a child. 
    742 P.2d 1208
    , 1213
    (Utah 1987). The Fulton court held that because the defendant had
    not “asserted a statute of limitations, age, or other analogous
    defense,” the State was not required to prove the time of the
    offense. 
    Id.
     Moreover, “the mere assertion of an alibi defense does
    not impose on the prosecution the additional burden of proving the
    precise date of the act.” 
    Id.
     Pullman has not asserted any of these
    defenses. The only elements of the offense at issue were whether
    Defendant touched Victim and with what intent; thus “the State
    did not need to prove the precise year in which the abuse
    occurred.” See State ex rel. D.T., 
    2006 UT App 132
    , ¶ 13, 
    134 P.3d 1148
     (citing State v. Marcum, 
    750 P.2d 599
    , 601 (Utah 1988)
    (affirming conviction for sexual abuse of a child under the age of
    fourteen)). Moreover, our supreme court has “acknowledged that
    in child sexual abuse prosecutions, identifying the specific date,
    time, or place of the offense is often difficult owing to the inability
    of young victims to provide this information.” State v. Taylor, 
    2005 UT 40
    , ¶ 12, 
    116 P.3d 360
    . “Responding to the realities of cognitive
    development,” the court wrote, “we have been less demanding of
    exact times and dates when young children are involved.” 
    Id. ¶11
     Pullman also argues that “the testimony [was] not precise as
    to the touching itself or the intent behind it.” Specifically, he
    complains that while Victim’s testimony uses the terms “boobs”
    and “butt,” “they are not precisely addressed as the anus, buttocks,
    [genitalia,] or breasts of [Victim].” However, the law does not
    require anyone, much less a child, to use technical or anatomically
    accurate terminology in describing sexual abuse where, as here, the
    words actually used are clear.
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    State v. Pullman
    ¶12 Finally, Pullman argues that the evidence of sodomy was
    insufficient, not because of the terminology used, but simply
    because the acts Victim described fall short of the statutory
    definition of sodomy on a child. Sodomy on a child is “any sexual
    act upon or with a child who is under the age of 14, involving the
    genitals or anus of the actor or the child and the mouth or anus of
    either person.” See Utah Code Ann. § 76‐5‐403.1 (LexisNexis 2012).
    In a prosecution for this offense, “any touching, even if
    accomplished through clothing, is sufficient to constitute the
    relevant element of the offense.” Id. § 76‐5‐407(3). Pullman asserts
    that Victim’s testimony fell short of describing a sexual act
    involving the touching of Victim’s anus.
    ¶13 The conviction for sodomy on a child rests on three
    testimonial statements of Victim. First, she testified that one night
    when she was “really sleepy” as a result of some medication she
    had taken, “he’d come into my room and tried to take my panties
    off and stick his dick into my butt.” Second, when asked whether
    Pullman’s penis went “inside you—your bum?” Victim answered,
    “No. I pushed him away before it did.” But she also answered
    affirmatively when asked if she could feel it “there.” Finally, when
    asked “How did it feel?” Victim responded, “It hurt.”
    ¶14 We conclude that the evidence here was insufficient to
    support the conviction for sodomy on a child. Even viewing the
    evidence in the light most favorable to the jury’s verdict, a verdict
    may not rest on mere speculation:
    “[N]otwithstanding the presumptions in favor of the
    jury’s decision[,] this Court still has the right to
    review the sufficiency of the evidence to support the
    verdict. The fabric of evidence against the defendant
    must cover the gap between the presumption of
    innocence and the proof of guilt. In fulfillment of its
    duty to review the evidence and all inferences which
    may reasonably be drawn from it in the light most
    favorable to the verdict, the reviewing court will
    stretch the evidentiary fabric as far as it will go. But
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    State v. Pullman
    this does not mean that the court can take a
    speculative leap across a remaining gap in order to
    sustain a verdict.”
    State v. Shumway, 
    2002 UT 124
    , ¶ 15, 
    63 P.3d 94
     (quoting State v.
    Petree, 
    659 P.2d 443
    , 444–45 (Utah 1983)). Sex crimes are defined
    with great specificity and require concomitant specificity of proof.
    For example, when a defendant is charged with rape of a child, a
    crime that requires penetration (unlike sodomy on a child), a
    victim’s testimony that the defendant “put the tip of his penis ‘on’
    her labia” but not that he “put his penis between the outer folds of
    her labia” is not sufficient to support a conviction. See State v.
    Simmons, 
    759 P.2d 1152
    , 1154 (Utah 1988) (reversing conviction for
    rape of a child).
    ¶15 State v. Taylor illustrates testimony sufficient to support a
    conviction for sodomy on a child. 
    2005 UT 40
    , 
    116 P.3d 360
    . The
    victim, who was six years old on the date of the offense, “stated
    that Mr. Taylor removed his pants and underwear, as well as her
    underwear but not her nightgown.” Taylor, 
    2005 UT 40
    , ¶ 3. “She
    explained that he offered her ‘half a dollar’ to ‘suck on his private,’
    which she described as tasting like urine.” 
    Id.
     The State also
    introduced a note the child had written to her mother that read,
    with corrected spelling, “Bryan told me to suck on his private and
    I did it.” 
    Id. ¶16
     Here, Victim’s testimony lacked a similarly specific
    description of the elements of the crime of sodomy on a child.
    Although she described a sexual act involving Pullman’s penis and
    her buttocks, the relevant statutes require involvement—indeed
    “touching”—of the anus. Our cases have drawn a distinction
    between anus and buttocks. For example, in construing a related
    statute, we have concluded that “touching the anus of any child”
    and “touching the buttocks of any child” are “alternative ways” to
    commit the crime of sexual abuse of a child. State v. Escamilla‐
    Hernandez, 
    2008 UT App 419
    , ¶ 13, 
    198 P.3d 997
    ; see also State v.
    Jacobs, 
    2006 UT App 356
    , ¶ 6 n.2 (distinguishing between
    “buttocks” and “anus” in the context of forcible sexual abuse).
    20110212‐CA                       7                 
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    State v. Pullman
    Moreover, Victim here was an articulate fourteen‐year‐old capable
    of drawing the relevant distinction if questioned about it. Her
    testimony that Pullman “tried to take [her] panties off and stick his
    dick into [her] butt” and that “it hurt,” is “sufficiently
    inconclusive . . . that reasonable minds must have entertained a
    reasonable doubt,” see State v. Mead, 
    2001 UT 58
    , ¶ 65, 
    27 P.3d 1115
    (citation and internal quotation marks omitted), as to whether
    Pullman’s act involved the touching of her anus, even through her
    clothing. We therefore agree with Pullman that the evidence was
    not sufficient to support his conviction for sodomy on a child.
    ¶17 Pullman is not off the hook, however. If the evidence is
    insufficient to support a conviction on the offense for which a
    defendant was convicted but is sufficient to support a conviction
    on a lesser included offense, and the trier of fact necessarily found
    every fact required for conviction of that included offense, an
    appellate court may set aside the judgment of conviction and enter
    judgment for the lesser included offense. Utah Code Ann. § 76‐1‐
    402(5) (LexisNexis 2012); see also State v. Dunn, 
    850 P.2d 1201
    ,
    1209–11 (Utah 1993) (concluding that Utah appellate courts have
    “the authority to modify criminal judgments on appeal” and to
    “enter judgment on a lesser included offense when an error has
    tainted the conviction for the greater offense”); State v. Powasnik,
    
    918 P.2d 146
    , 150 n.2 (Utah Ct. App. 1996) (“Utah appellate courts
    may modify criminal convictions and enter judgments of
    conviction for a lesser included offense on appeal.”).
    ¶18 An attempt to commit an offense is included in that offense.
    Utah Code Ann. § 76‐1‐402(3)(b). This conclusion follows logically
    from the fact that a defendant is guilty of an attempted crime if he
    or she “engages in conduct constituting a substantial step toward
    commission of the crime” with the intent to commit the crime. Id.
    § 76‐4‐101. Attempted sodomy on a child is thus a lesser included
    offense of sodomy on a child.
    ¶19 We have no difficulty here in concluding that Victim’s
    testimony amply showed that Pullman attempted the crime of
    which he was convicted—that he took a substantial step toward
    20110212‐CA                      8                
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    State v. Pullman
    committing sodomy on a child and that he intended to accomplish
    that crime. See 
    id.
     Indeed, Pullman’s counsel conceded at oral
    argument that Victim’s testimony was sufficient to support a
    conviction for the lesser offense. We thus conclude that the trier of
    fact necessarily found every fact required for conviction of the
    lesser included offense of attempted sodomy on a child. See 
    id.
     § 76‐
    1‐402(5).4
    ¶20 Accordingly, we vacate Pullman’s conviction for the crime
    of sodomy on a child, enter a conviction for the crime of attempted
    sodomy on a child, see id. § 76‐5‐403.1, and remand to the trial court
    for imposition of sentence on the latter crime.
    II. Jury Instruction Defining “Touching”
    ¶21 Pullman contends that the trial court gave an erroneous jury
    instruction and that the giving of this instruction constituted a
    manifest injustice.5 Which instruction Pullman contests, and how
    he believes it was erroneous, are not entirely clear from his brief.
    He does not identify any jury instruction by name or number, nor
    does he quote any jury instruction. However, because he has
    attached jury instruction number 14 (Instruction 14) as an
    addendum to his brief and because he quotes a related statutory
    section, we infer that Instruction 14 is the focus of his complaint.
    Instruction 14 defined touching for the jury:
    You are instructed that in any prosecution for
    Sodomy on a Child and Aggravated Sexual Abuse of
    a Child, any touching, even if accomplished through
    clothing, is sufficient to constitute the relevant
    element of the offense.
    4. Though “lesser,” attempted sodomy on a child is nevertheless a
    grave offense—a first degree felony with a range of severe prison
    terms. See Utah Code Ann. § 76‐4‐102(1)(d)(iii) (LexisNexis 2012).
    5. Pullman’s trial counsel did not object to the jury instructions;
    accordingly, Pullman alleges manifest injustice.
    20110212‐CA                       9                
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    State v. Pullman
    In addition, Pullman cites three statutory sections. The first two
    define the crimes of sexual abuse of a child and sodomy on a child.
    See Utah Code Ann. §§ 76‐5‐404.1, ‐403.1 (LexisNexis 2012). The
    third defines penetration and touching for purposes of these and
    related sex crimes. See id. § 76‐5‐407. It specifies that, in any
    prosecution for the crime of sexual abuse of a child or sodomy on
    a child “any touching, even if accomplished through clothing, is
    sufficient to constitute the relevant element of the offense.” Id. § 76‐
    5‐407(3).
    ¶22 Pullman then argues, “The broad nature of touching in the
    statute must be construed in the context of the criminal act and at
    the very least construed in the context of its entirety to qualify what
    was intended. Otherwise, any touching, however slight, would include
    noncriminal as well as proper conduct.” (Emphasis added). The trial
    court’s instructing the jury in keeping with the statutory definition
    of touching, Pullman maintains, “can and did cause the jury to
    assume that in the normal exchange between father and daughter
    touching and teasing or disciplining would be sufficient to qualify
    as an element of the offense.”
    ¶23 We conclude that any possible error was invited. Under the
    invited error doctrine, a party cannot take “advantage of an error
    committed at trial when that party led the trial court into
    committing the error.” See State v. Geukgeuzian, 
    2004 UT 16
    , ¶ 9, 
    86 P.3d 742
     (citation and internal quotation marks omitted). And “if
    the defendant invited the error, we will not review the error for
    manifest injustice.” State v. Cooper, 
    2011 UT App 234
    , ¶ 5, 
    261 P.3d 653
     (citation omitted). Here, Pullman’s trial counsel approved
    Instruction 14. Accordingly, we decline to review Instruction 14 for
    manifest injustice.
    ¶24 In a separate contention on appeal, Pullman cursorily argues
    that his trial counsel was ineffective for not objecting to Instruction
    14 and for not proposing “an instruction more appropriate to limit
    consideration of touching to the context of the charged offenses as
    provided by statute.” To prevail, Pullman must show that his
    counsel’s performance was deficient (i.e., that it fell below an
    20110212‐CA                       10                
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    State v. Pullman
    objective standard of reasonable professional judgment) and that
    it prejudiced Pullman. Strickland v. Washington, 
    466 U.S. 668
    , 690
    (1984); see also Bundy v. Deland, 
    763 P.2d 803
     (Utah 1988). Merely
    asserting that a jury instruction that correctly informs the jury of
    the statutory definition of a relevant term was “insufficient and
    inappropriate” falls well short of demonstrating deficient
    performance.
    ¶25 In any event, the jury instructions when read as a whole did
    not suggest that “innocent” touching could satisfy all the elements
    of the charged offenses. See State v. Taylor, 
    2005 UT 40
    , ¶ 24, 
    116 P.3d 360
     (reiterating that jury instructions must be considered as a
    whole). Instruction 11 required the jury to find that Pullman
    “engaged in a sexual act upon or with” Victim in order to convict
    Pullman of sodomy on a child. And Instructions 12 and 13 required
    the jury to find that Pullman intended to “cause substantial
    emotional pain” or intended to “arouse or gratify sexual desire” in
    addition to the physical act of touching in order to convict him of
    aggravated sexual abuse of a child. When read together, these
    instructions properly instructed the jury as to both the physical and
    mental elements required for conviction. In sum, Pullman has not
    shown that his trial counsel rendered ineffective assistance of
    counsel.
    III. Constitutional Challenge to Section 76‐5‐407
    ¶26 Pullman next contends that Utah Code section 76‐5‐407(3),
    which defines the types of touching necessary to satisfy the actus
    reus elements of several sexual offenses, is unconstitutional
    because it is “so broad as to include even lawful or appropriate
    contact.” See Utah Code Ann. § 76‐5‐407 (LexisNexis 2012).6
    6. Although Pullman draws subsection (2)(b) of section 76‐5‐407 to
    our attention, only subsection (3) is relevant here. Pullman was not
    charged with any offense listed in Utah Code section 76‐5‐407(2).
    Instead, the offenses he was charged with and convicted of are
    listed under Utah Code section 76‐5‐407(3). Therefore, to the extent
    (continued...)
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    State v. Pullman
    ¶27 This claim was not preserved in the trial court. “[W]e are
    resolute in our refusal to take up constitutional issues which have
    not been properly preserved, framed and briefed . . . .” Brigham City
    v. Stuart, 
    2005 UT 13
    , ¶ 14, 
    122 P.3d 506
    , rev’d on other grounds, 
    547 U.S. 398
     (2006). Pullman concedes that he did not raise this
    constitutional challenge at trial and accordingly relies on the
    exceptional circumstances exception to the preservation
    requirement. The exceptional circumstances exception is
    “ill‐defined . . . and applies primarily to rare procedural
    anomalies.” State v. Dunn, 
    850 P.2d 1201
    , 1209 n.3 (Utah 1993)
    (citation omitted); see also State v. Irwin, 
    924 P.2d 5
    , 8 (Utah Ct. App.
    1996). In an attempt to demonstrate exceptional circumstances here,
    Pullman asserts that Victim’s testimony was imprecise, that a jury
    instruction was erroneous, and that inadmissible evidence was
    admitted at trial. Even assuming that these errors occurred,
    Pullman does not explain how ordinary trial errors of this type are
    exceptional, rare, or anomalous in this instance. Nor does he cite
    any case law illuminating the exceptional circumstances rule. He
    thus has not demonstrated that this case fits within it. Accordingly,
    he has not demonstrated that this exception to the preservation rule
    applies.
    IV. Evidence Concerning Anal Sex
    ¶28 Fourth, Pullman contends that the trial court improperly
    admitted evidence of “activity . . . which his ex‐wife testified to at
    trial.” In August 2007, Pullman remarried his ex‐wife (Wife).
    During their first marriage, Pullman had repeatedly asked Wife for
    anal sex. Wife did not enjoy it and, before remarrying Pullman, she
    warned, “Don’t even ask, don’t even think about it, don’t try it.”
    Nevertheless, during the second marriage, Pullman again sought
    anal sex with Wife. She testified that Pullman would “curl up in
    bed next to [her] and try and insert himself.” She would “have to
    smack him away [or] get up and leave the room.”
    6. (...continued)
    possible, we construe his arguments as attacking subsection (3).
    20110212‐CA                        12                
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    State v. Pullman
    ¶29 Pullman argues that this evidence was inadmissible under
    rules 403 and 404(b) of the Utah Rules of Evidence.7 The State
    responds that the testimony was properly admitted for the
    permissible purpose of showing motive and that, in any event, its
    admission was harmless.
    ¶30 Admission of other acts evidence involves a three‐step
    analysis. First, “the trial court must . . . determine whether the bad
    acts evidence is being offered for a proper, noncharacter purpose,
    such as one of those specifically listed in rule 404(b).” State v.
    Nelson‐Waggoner, 
    2000 UT 59
    , ¶ 18, 
    6 P.3d 1120
    . If so, “the court
    must determine whether the bad acts evidence meets the
    requirements of rule 402, which permits admission of only relevant
    evidence.” 
    Id. ¶ 19
    . “Finally, the trial court must determine whether
    the bad acts evidence meets the requirements of rule 403 of the
    Utah Rules of Evidence.” 
    Id. ¶ 20
    . “A trial court’s admission of
    prior bad acts evidence is reviewed for abuse of discretion, but the
    evidence ‘must be scrupulously examined by trial judges in the
    proper exercise of that discretion.’” State v. Verde, 
    2012 UT 60
    , ¶ 13,
    
    296 P.3d 673
     (quoting State v. Decorso, 
    1999 UT 57
    , ¶ 18, 
    993 P.2d 837
    ).
    A. Noncharacter Purpose
    ¶31 Rule 404(b) allows admission of other acts evidence for
    proper noncharacter purposes such as “proving motive,
    opportunity, intent, preparation, plan, knowledge, identity,
    absence of mistake, or lack of accident.” Utah R. Evid. 404(b). This
    list is not exhaustive. See State v. Houskeeper, 
    2002 UT 118
    , ¶ 28, 
    62 P.3d 444
    ; State v. Ramirez, 
    924 P.2d 366
    , 369 (Utah 1996). Rule 404(b)
    is “an inclusionary rule.” State v. Kooyman, 
    2005 UT App 222
    , ¶ 26,
    7. Pullman also complains that the court erred in admitting his
    prior conviction for lewdness into evidence. Because evidence of
    this prior conviction was never presented to the jury, there is “no
    reasonable likelihood that the [alleged] error affected the outcome
    of the proceedings.” See State v. Verde, 
    770 P.2d 116
    , 120 (Utah
    1989).
    20110212‐CA                       13                
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    State v. Pullman
    
    112 P.3d 1252
     (citation and internal quotation marks omitted).
    “Prior bad act evidence is only excluded where the sole reason it is
    being offered is to prove bad character or to show that a person
    acted in conformity with that character.” State v. Nielsen, 
    2012 UT App 2
    , ¶ 11, 
    271 P.3d 817
     (citation and internal quotation marks
    omitted). Thus, “[s]o long as the evidence is not aimed at
    suggesting action in conformity with bad character, it is admissible
    under rule 404(b).” Verde, 
    2012 UT 60
    , ¶ 15.
    ¶32 The State asserts that the purpose of the evidence was to
    show Pullman’s motive for attempting to engage in anal sex with
    Victim. According to the State, this evidence showed that
    Pullman’s desire for anal sex was unsatiated due to Wife’s refusal
    to engage in it, prompting him to turn to a surrogate, Victim,
    whom he had already been molesting for several months. Pullman
    does not challenge this explanation.8
    ¶33 Other jurisdictions have allowed the admission of bad acts
    evidence in similar situations. For example, in Warner v. State, a
    defendant’s cohabitant testified that the defendant had asked her
    “three to five times to have anal intercourse and she refused.” 
    2006 OK CR 40
    , ¶ 64, 
    144 P.3d 838
    . The Court of Criminal Appeals of
    Oklahoma held that this testimony was “relevant to show [the
    defendant’s] motive and intent to attempt anal intercourse with [a
    8. Pullman’s brief generally, and on this point specifically, is
    unfocused. For example, Pullman refers to “the potentially harsh
    penalties for all three counts” and to evidence excluded under rule
    412 of the Utah Rules of Evidence in his discussion of rule 404(b)
    without explaining how they might contribute to the analysis. And
    he does not argue that proof of motive is indistinguishable from
    proof of propensity when it is used to prove that the defendant is
    the sort of person who is motivated by certain things. But
    formulating such an argument is the job of the appellant, not the
    appellate court. We are not permitted “to become [Pullman’s]
    advocate by formulating arguments on [his] behalf or translating
    [his] problematic arguments into plausible ones.” B.A.M. Dev., LLC
    v. Salt Lake County, 
    2012 UT 26
    , ¶ 35 n.8, 
    282 P.3d 41
    .
    20110212‐CA                     14               
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    State v. Pullman
    child] victim.” 
    Id.
     (interpreting Oklahoma Statutes, title 12,
    section 2404(B), which is substantively similar to rule 404(b) of the
    Utah Rules of Evidence). Likewise, a federal district court affirmed
    the California Court of Appeal’s conclusion that testimony from a
    defendant’s wife that he often asked for anal sex and that she
    refused him was relevant “to show that [the defendant] had the
    intent and motive to have anal sex with [a child victim] shortly
    after” the wife’s refusals. Canas v. Yates, No. EDCV 07‐00334‐
    VBF(MLG), 
    2009 WL 3483931
    , at *14 (C.D. Cal. Oct. 27, 2009)
    (analyzing California Evidence Code section 1101(b), which, like
    our rule 404(b), allows admission of bad acts evidence to prove,
    inter alia, motive or intent). And the Georgia Court of Appeals held
    that testimony by a defendant’s ex‐wife that he had asked her “at
    least twice weekly” for anal sex for several years and that she had
    refused each time save one was admissible to show the defendant’s
    “state of mind and motive” for anally raping a child. Barrett v. State,
    
    559 S.E.2d 108
    , 110 (Ga. Ct. App. 2002) (interpreting Georgia’s then‐
    current “similar transaction” rule).
    ¶34 We conclude that Pullman has not demonstrated that the
    testimony was offered for an impermissible purpose.
    B. Relevance Under Rule 402
    ¶35 Bad acts evidence is subject to a relevance analysis under
    rule 402 of the Utah Rules of Evidence. See State v. Nelson‐Waggoner,
    
    2000 UT 59
    , ¶ 19, 
    6 P.3d 1120
    . Rule 402 permits the admission of
    relevant evidence while rule 401 defines evidence as relevant if it
    has any tendency to make a fact of consequence to the
    determination of the action more or less probable. Utah R. Evid.
    401; 
    id.
     R. 402.
    ¶36 Pullman asserts that Wife’s testimony “had no tendency to
    make the existence of such information necessary to determine if
    [Pullman] committed sodomy or aggravated abuse upon a child
    more probable or less probable.” He further argues that, “there
    seems to be a significant distinction between the activity for which
    [Pullman] was accused and that which his ex‐wife testified to at
    trial. In particular, the activity involving his ex‐wife does not
    20110212‐CA                       15                
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    State v. Pullman
    appear to have been forced or nonconsensual.” In support, he relies
    principally on State v. Dunston. See 
    588 S.E.2d 540
     (N.C. Ct. App.
    2003). In Dunston the Court of Appeals of North Carolina
    concluded that evidence that a defendant engaged in consensual
    anal sex with his wife was not relevant to the question of whether
    he had engaged in anal sex with his young foster daughter. 
    Id. at 545
    . The court reasoned that “the fact defendant engaged in and
    liked consensual anal sex with an adult, whom he married, is not
    by itself sufficiently similar to engaging in anal sex with an
    underage victim . . . to be admissible under Rule 404(b).” 
    Id.
    (referring to the North Carolina evidentiary rule analogous to rule
    404(b) of the Utah Rules of Evidence).
    ¶37 The State does not contend that “by itself” the fact that
    Pullman desired anal sex with a consenting adult was relevant in
    this child abuse case. Rather, the State argues that the Dunston case
    lacks the element that makes Wife’s testimony here relevant—she
    was denying Pullman anal sex, creating a motive for him to look
    elsewhere for it. In other words, Pullman desired to engage in anal
    sex with someone, and when his wife rebuffed him, he turned his
    attention to Victim, whom he had already sexually victimized.
    Moreover, the State argues, cases involving the denial of anal sex
    generally allow the admission of the evidence to show motive even
    when the victim of the charged crime is a child. See, e.g., Canas, 
    2009 WL 3483931
     at *14 (holding admissible testimony by an adult
    woman that she had refused to engage in anal sex with defendant
    and that anal sex was “all he wanted to do” with her, because
    testimony was relevant to charge that defendant attempted anal sex
    with girls aged eleven and thirteen); Warner, 
    2006 OK CR 40
    ¶¶ 64–66 (holding admissible a girlfriend’s testimony that during
    the two weeks before the victim’s murder the defendant had
    requested and been denied anal sex where defendant had been
    charged with anal rape and murder of a young girl); Barrett, 
    559 S.E.2d at 110
    –11 (holding admissible ex‐wife’s testimony that she
    refused to engage in anal sex with defendant where he was
    charged with having anal sex with his fourteen‐year‐old stepson).
    ¶38 We conclude that Pullman has not demonstrated that the
    testimony was irrelevant.
    20110212‐CA                       16                
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    State v. Pullman
    C. Rule 403 Analysis
    ¶39 Finally, Pullman contends that the danger of unfair
    prejudice posed by the challenged testimony substantially
    outweighed its probative value and that it had an undue tendency
    to suggest a decision on an emotional basis. A trial court “may
    exclude relevant evidence if its probative value is substantially
    outweighed by a danger of . . . unfair prejudice, confusing the
    issues, misleading the jury, undue delay, wasting time, or
    needlessly presenting cumulative evidence.” Utah R. Evid. 403.9
    ¶40 “Rule 403 does not require a trial court to dismiss all
    prejudicial evidence[,] because ‘[a]ll effective evidence is
    prejudicial in the sense of being damaging to the party against
    whom it is offered.’” State v. Killpack, 
    2008 UT 49
    , ¶ 53, 
    191 P.3d 17
    (second alteration in original) (quoting Woods v. Zeluff, 
    2007 UT App 84
    , ¶ 7, 
    158 P.3d 552
    ). “Rather, the rule only requires that the
    trial court measure the danger the evidence poses of causing unfair
    prejudice to a defendant.” 
    Id.
     (citation and internal quotation marks
    omitted). Unfair prejudice, within the context of rule 403, “means
    an undue tendency to suggest decision on an improper basis,
    commonly, though not necessarily, an emotional one.” State v.
    Maurer, 
    770 P.2d 981
    , 984 (Utah 1989) (citation and internal
    quotation marks omitted).
    ¶41 Here, Pullman contends that the trial court “failed to
    appreciate the devastating impact that the admission of such
    evidence would have in being prejudicial under Rule 403,” but
    offers no further explanation, analysis, or authority in support of
    that claim. He does not explain why any prejudice was unfair and
    fails to assert, much less demonstrate, that the danger of unfair
    prejudice substantially outweighed the testimony’s probative
    value. An issue is inadequately briefed “when the overall analysis
    9. Pullman mentions the dangers of “unfair prejudice, confusion of
    the issues, [and] misleading the jury” but offers argument only on
    the first factor. We therefore confine our analysis to the first factor.
    20110212‐CA                       17                
    2013 UT App 168
    State v. Pullman
    of the issue is so lacking as to shift the burden of research and
    argument to the reviewing court.” State v. Thomas, 
    961 P.2d 299
    , 305
    (Utah 1998). That is the case here. Therefore, we do not address the
    issue further.10
    ¶42 Accordingly, Pullman has failed to demonstrate that the trial
    court abused its discretion in determining that Wife’s prior act
    testimony was relevant to a noncharacter purpose, see Utah R. Evid.
    404(b), and that its probative value was not “substantially
    outweighed by a danger of . . . unfair prejudice,” see 
    id.
     R. 403.
    V. Evidence of Pornography Viewing
    ¶43 Pullman’s fifth contention is that he was afforded ineffective
    assistance of counsel because his trial counsel was ineffective for
    failing to object “to the State’s introduction of testimony regarding
    [Pullman’s] viewing of pornography.” Pullman must show that
    counsel’s performance was deficient and that Pullman was
    prejudiced as a result. See Strickland v. Washington, 
    466 U.S. 668
    ,
    690–92 (1984); see also Bundy v. Deland, 
    763 P.2d 803
    , 805 (Utah
    1988).
    ¶44 Victim testified that Pullman viewed pornography in her
    presence, that he was naked while doing so, and that he would
    “usually just [tell Victim] to go away.” Pullman asserts that this
    testimony was irrelevant to the charged offenses. Assuming
    10. The State made a substantive response. It asserts that “while
    consensual anal sex may have carried a negative or even deviant
    connotation in the past, sexual mores have changed.” In support of
    this assertion, the State cites a national survey concluding that
    among adults aged twenty‐five to forty‐four, 36% of women
    and 44% of men report having had anal sex with an
    opposite‐sex partner. See Anjani Chandra et al., Sexual Behavior,
    Sexual Attraction, and Sexual Identity in the United States: Data From
    the 2006–2008 National Survey of Family Growth at *9, available at
    http://www.cdc.gov/nchs/data/nhsr/nhsr036.pdf (last visited June
    4, 2013).
    20110212‐CA                      18                
    2013 UT App 168
    State v. Pullman
    without deciding that Pullman is correct, we cannot agree with his
    additional assertion that “there can be no doubt about the
    prejudicial effect on the jury.” Pullman offers no support for this
    assertion. It is certainly plausible that Pullman’s pornography
    viewing, particularly in front of a child, would cast a negative light
    on him at trial. On the other hand, absent any explanation on
    Pullman’s part, we are unwilling to assume that a jury would be so
    prejudiced by testimony that the defendant viewed pornography
    as to convict that defendant on unrelated charges. See Strickland,
    
    466 U.S. at 694
     (in order to demonstrate ineffective assistance of
    counsel, an appellant must show that “but for counsel’s
    unprofessional errors, the result of the proceeding would have
    been different”).
    ¶45 We conclude that Pullman has not shown the requisite
    prejudice to sustain a claim of ineffective assistance of counsel.
    “[T]here is no reason for a court deciding an ineffective assistance
    claim to . . . address both components of the inquiry if the
    defendant makes an insufficient showing on one.” 
    Id. at 697
    . “If it
    is easier to dispose of an ineffective assistance claim on the ground
    of lack of sufficient prejudice, which we expect will often be so, that
    course should be followed.” 
    Id.
     Therefore, because we have
    determined that one of the two prongs is unsatisfied, we reject
    Pullman’s ineffective assistance of counsel claim.
    CONCLUSION
    ¶46 The evidence was insufficient to sustain Pullman’s
    conviction for sodomy on a child but sufficient to convict him of
    the lesser included offense of attempted sodomy upon a child. Any
    error in the jury instructions was invited, and Pullman’s
    constitutional claims are not properly before us. Furthermore,
    Pullman has not demonstrated that his trial counsel was
    ineffective. Finally, Pullman has not demonstrated that admission
    of Wife’s testimony violated Utah Rules of Evidence 403 or 404(b).
    20110212‐CA                       19                
    2013 UT App 168
    State v. Pullman
    We affirm in part and reverse and remand for resentencing in
    part.11
    11. To the extent that we have not addressed other points or
    subpoints raised or suggested in Pullman’s brief, we have
    determined that they are foreclosed by the foregoing analysis, are
    inadequately briefed, or lack merit. Accordingly, we decline to
    address them further. See State v. Carter, 
    776 P.2d 886
    , 888 (Utah
    1989) (“[T]his court need not analyze and address in writing each
    and every argument, issue, or claim raised and properly before us
    on appeal. Rather it is a maxim of appellate review that the nature
    and extent of an opinion rendered by an appellate court is largely
    discretionary with that court.”), overruled on other grounds as
    recognized by Archuleta v. Galetka, 
    2011 UT 73
    , ¶ 29, 
    267 P.3d 232
    .
    20110212‐CA                     20               
    2013 UT App 168