State v. Pullman
2013 UT App 168
| Utah Ct. App. | 2013Background
- Pullman began molesting Victim on her twelfth birthday and continued weekly or biweekly for about a year in Cedar City.
- Victim testified that Pullman regularly grabbed her breasts and buttocks, sometimes over clothing.
- On one occasion, Pullman attempted anal sex and Victim described it as painful.
- Defense was that the events did not occur and Victim manufactured them for retaliation against Pullman.
- Pullman was charged with one count of sodomy on a child and two counts of aggravated sexual abuse of a child; the jury convicted on all counts.
- On appeal, Pullman challenges sufficiency of the evidence, jury instruction, a constitutional challenge to a statute, admission of evidence, and effectiveness of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support sodomy on a child | State contends sufficient evidence supported conviction | Pullman argues evidence lacked time/place specificity and possible elements | Sodomy on a child insufficent; conviction vacated and remanded for attempted sodomy on a child |
| Jury instruction defining touching | State contends instruction properly defined statute | Pullman argues instruction broad and invited error | Invited-error doctrine applies; no manifest injustice review; instruction upheld as invited error |
| Constitutional challenge to 76‑5‑407(3) preservation | State defends statute as properly defined | Pullman preserved none of the challenge; exceptional circumstances not shown | Not preserved; exceptional circumstances not established; claim rejected on preservation grounds |
| Admission of ex-wife's anal-sex testimony and prior lewdness conviction | State contends testimony shows motive and is admissible | Pullman contends 403/404(b) prejudice; not relevant to charged acts | Testimony admitted for noncharacter purposes; not abuse of discretion; prejudice not shown beyond probative value |
| Ineffective assistance—pornography viewing evidence | State asserts evidence could be admissible; not central | Pullman claims prejudice and ineffective assistance | No reversible prejudice; Strickland standard not met; claim rejected |
Key Cases Cited
- State v. Hamilton, 827 P.2d 232 (Utah 1992) (sufficiency review standards in Utah Supreme Court)
- State v. Fulton, 742 P.2d 1208 (Utah 1987) (time is not a statutory element for sodomy on a child)
- State v. Taylor, 2005 UT 40, 116 P.3d 360 (Utah (2005)) (child testimony flexibility on time/place; sufficiency of sodomy on a child)
- State v. Dunn, 850 P.2d 1201 (Utah 1993) (exceptional circumstances/preservation and plain error standards)
- State v. Nelson‑Waggoner, 2000 UT 59, 6 P.3d 1120 (Utah 2000) (abuse-of-discretion review for Rule 404(b) evidence)