State v. Pullman

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.
20110212‐CA 2 2013 UT App 168State 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
20110212‐CA 3 2013 UT App 168State 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).
20110212‐CA 4 2013 UT App 168State 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.
20110212‐CA 5 2013 UT App 168State 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
20110212‐CA 6 2013 UT App 168State 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 2013 UT App 168State 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 2013 UT App 168State 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 2013 UT App 168State 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 2013 UT App 168State 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...)
20110212‐CA 11 2013 UT App 168State 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 2013 UT App 168State 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 2013 UT App 168State 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 2013 UT App 168State 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 2013 UT App 168State 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 2013 UT App 168State 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 168State 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 168State 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 168State 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