State v. Gulli, 391 P.3d 1210

Background

In 2012 police seized Gulli’s computer after his wife found images of naked young girls; investigators found 24 videos of minors in sexual acts and two photos of 11-year-old M.M. with a wooden dowel in her anus. M.M. knew Gulli’s children but did not testify at trial.
A grand jury indicted Gulli on 26 counts of sexual exploitation of a minor, two counts of sexual conduct with a minor (alleging insertion of a wooden dowel into M.M.’s anus), plus other charges later dismissed by the State.
At trial the jury convicted Gulli on the sexual-exploitation and sexual-conduct counts; the court imposed consecutive sentences totaling 482 years (seventeen years per exploitation count; twenty years per sexual-conduct count).
The jury instructions included correct statutory definitions for “sexual intercourse” but the court also instructed the jury that “sexual conduct” means direct or indirect touching or “causing a person to engage in such contact,” language taken from the separate definition of “sexual contact.”
Gulli appealed, arguing the erroneous instruction created a non-existent theory of liability (forgiving penetration by a victim acting on direction) and that his exploitation sentences were cruel and unusual.
The court vacated the two sexual-conduct convictions/sentences for counts alleging dowel penetration, but affirmed the sexual-exploitation convictions and sentences.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jury instruction misstated law by defining “sexual conduct” using the statute for “sexual contact”	State: instruction was harmless; closing argument and other instructions clarified required elements	Gulli: instruction created a non-existent theory (allowed conviction if victim self‑inserted dowel at defendant’s direction); fundamental error occurred	Court: Instruction was fundamental error and prejudicial; vacated convictions/sentences for the two sexual‑conduct counts
Prejudice from erroneous instruction	State: error not prejudicial because other instructions/argument made clear defendant had to penetrate	Gulli: lack of evidence who inserted dowel and jury question shows confusion; reasonable jury could acquit if properly instructed	Court: Prejudice shown — jury’s question and sparse evidence on how dowel incidents occurred indicate reasonable jury could have reached different result
Cruel and unusual punishment challenge to consecutive sentences for sexual‑exploitation counts	Gulli: cumulative lengthy consecutive sentences violate Eighth Amendment and Arizona Constitution	State: Berger and precedent foreclose relief; court bound by Supreme Court decisions	Court: Rejected challenge; Berger and McPherson control; sentences upheld as to exploitation counts
Remedy for instructional error	N/A	N/A	Court vacated convictions and sentences for counts 25–26 (sexual conduct with a minor) but affirmed remaining convictions and sentences

Key Cases Cited

State v. Henderson, 210 Ariz. 561 (discusses fundamental error framework and forfeiture) (court relied on this standard for unpreserved instruction challenge)
State v. James, 231 Ariz. 490 (instructing jury on non‑existent theory is fundamental error) (supports vacatur when jury authorized to convict under nonexistent theory)
State v. Dickinson, 233 Ariz. 527 (error can be fundamental if instruction allows conviction for no such offense) (used to illustrate magnitude of instructional error)
State v. Abdi, 226 Ariz. 361 (vacatur of convictions for instructional error) (followed in remedying erroneous instructions)
State v. Berger, 212 Ariz. 473 (upheld consecutive sentences for child‑pornography convictions under Eighth Amendment) (binding precedent rejecting cumulative‑sentence Eighth Amendment challenge)
State v. McPherson, 228 Ariz. 557 (applied Berger reasoning to Arizona constitutional ban on cruel and unusual punishment) (forecloses state‑constitutional challenge to consecutive exploitation sentences)
State ex rel. Hamilton v. Superior Court, 128 Ariz. 184 (explains sexual‑intercourse requires at least two participants) (used to distinguish intercourse from “causing a person to engage” language)
State v. Marshall, 197 Ariz. 496 (adult can direct victim to perform acts — concept included in "sexual contact") (illustrates legal meaning of “causing a person to engage” in conduct)
State v. Trujillo, 227 Ariz. 314 (speculation insufficient to show prejudice) (court rejected State’s speculative theory when assessing prejudice)
State v. Tarr, 235 Ariz. 288 (jury instructions reviewed in their entirety; closing argument may be considered) (used to evaluate whether other materials cured the error)