State v. Pullman

• Decision Date: 05 July 2013
• Docket Number: No. 20110212–CA.,20110212–CA.
• Citation: 306 P.3d 827,738 Utah Adv. Rep. 61
• Parties: STATE of Utah, Plaintiff and Appellee, v. Donald J. PULLMAN, Defendant and Appellant.
• Court: Utah Court of Appeals

306 P.3d 827

738 Utah Adv. Rep. 61

STATE of Utah, Plaintiff and Appellee,

v.Donald J. PULLMAN, Defendant and Appellant.

No. 20110212–CA.

Court of Appeals of Utah.

July 5, 2013.

J. Bryan Jackson, for Appellant.

John E. Swallow and Ryan D. Tenney, for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges GREGORY K. ORME and JAMES Z. DAVIS concurred.

Opinion

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. SeeUtah 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.

BACKGROUND ²

¶ 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).

¶ 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 unconstitutionalbecause 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 404 of the Utah Rules of Evidence. SeeUtah 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 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) (affirmingconviction 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.

¶ 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.” SeeUtah 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...