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State v. Tulley

Supreme Court of Utah

July 25, 2018

State of Utah, Appellee,
v.
Travis Roger Tulley, Appellant.

          On Certification from the Court of Appeals

         Third District, Salt Lake The Honorable Judge Randall N. Skanchy No. 131905304

          Sean D. Reyes, Att'y Gen., Kris C. Leonard, Asst. Solic. Gen., Salt Lake City, for appellee

          Alexandra S. McCallum, Scott A. Wilson, Salt Lake City, for appellant

          Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Justice Himonas, and Judge Toomey joined.

          Due to her retirement, Justice Durham did not participate herein; Court of Appeals Judge Kate A. Toomey sat.

          Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.

          OPINION

          Pearce, Justice

         INTRODUCTION

         ¶1 Travis Roger Tulley claims that while he was napping on Victim's couch, Victim held a knife to his forehead and attempted to grope his genitals. In response, Tulley violently assaulted Victim, a 71-year-old man. Tulley wanted to introduce evidence at trial of Victim's prior sexual misconduct. The district court excluded much of that evidence, but held that Tulley could present some of it in a "sanitized" form. Tulley also asked the district court to instruct the jury that he would be entitled to defend himself if he was trying to prevent "forcible sexual abuse." The district court declined Tulley's request. The jury convicted Tulley of reckless aggravated abuse of a vulnerable adult and interference with an arresting officer. Tulley received a sentence enhancement because he qualified as a habitual violent offender.

         ¶2 Tulley challenges the district court's exclusion of Victim's prior sexual misconduct evidence and contends that the jury was incorrectly instructed. Tulley also argues that Utah's aggravated abuse of a vulnerable adult statute is unconstitutionally void. Finally, Tulley contends that Utah's habitual violent offender statute violates the Utah Constitution's cruel and unusual punishment and double jeopardy clauses.

         ¶3 We conclude that the district court correctly excluded evidence of Victim's prior sexual misconduct and correctly instructed the jury. Additionally, we hold that Utah's aggravated abuse statute is not unconstitutionally vague and conclude that Tulley has not met his burden of establishing that Utah's habitual violent offender statute violates either the Utah Constitution's cruel and unusual punishment clause or the double jeopardy clause. In the end, we affirm the district court.

         BACKGROUND

         ¶4 Tulley met Victim at the sex offender treatment program they both attended.[1] Victim mentored Tulley during the program, and the two remained in contact afterwards. More than a decade after they first met, Victim invited Tulley to his apartment. Over drinks, Tulley explained that he didn't have a place to live. Victim invited Tulley to stay with him for a few days. The next day, the two started drinking again. While making dinner, Tulley accidentally burned his hand on the oven. Victim suggested that Tulley needed to get some sleep and offered Tulley sleeping medication. Tulley took "several" pills while Victim continued drinking. Tulley eventually fell asleep on the couch. Tulley testified that he awoke to find a knife at his forehead and Victim's hand on his genitals. Tulley "started throwing [his] fists." Victim backed away.

         ¶5 At some point thereafter, Victim's next door neighbor heard "screaming and . . . hollering and . . . swearing" for "at least 15 minutes." She opened her door and saw another neighbor, Ron Boren, trying to enter Victim's apartment. She returned to her apartment and "all of a sudden . . . heard this real loud bumping" behind her bathroom wall. When she hit the wall to try to quiet things down, "it didn't stop . . . [a]nd then it got worse." She heard "consistent thumping in the bathroom" that was "very loud" but couldn't hear any voices inside of Victim's apartment. She called the building manager to report the disturbance.

         ¶6 Tulley let Boren enter Victim's apartment. Boren found Victim lying in a "big puddle of blood." Boren located a towel, wet it, and placed it on Victim's head. According to Boren, "[t]here was blood everywhere," so he wiped up the blood in the bathroom. When Boren started cleaning the apartment, Tulley became agitated and told Boren, "I'll kill you."

         ¶7 At this point, the on-site assistant responded to the complaints about the ruckus in Victim's apartment. Tulley and Boren attempted to block the assistant from entering, but eventually she opened the door "a little bit to find [Victim] on the floor." She quickly assessed the apartment and described "a blood bath" with blood "all over kind of semi oozing out a little bit in the kitchen, and bedroom, [and] bathroom."[2] Tulley and Boren then slammed the door on the assistant. The assistant went to an open window to listen and heard Victim tell Tulley that he "loved him like a son." Tulley responded, "I love you too, Dad." Tulley then placed his hands over Victim's mouth to muffle him, told him "I'll kill you," and beat Victim with a club.

         ¶8 At this point, the building manager arrived and walked into Victim's apartment to find Victim "on the floor . . . with a towel wrapped around his head." She saw Tulley, who was not wearing pants, standing in the doorway. Tulley told the manager to "get the hell out." The manager called for an ambulance and the police. Tulley became increasingly agitated and said he would kill Victim. Tulley came across the room and shut the door, forcing the manager out.

         ¶9 When the police arrived, they walked into "[a] bloody mess." A pair of glasses with bloody lenses sat on the kitchen table. Blood was "smeared on the walls [and] smeared all over the floor" in the hallway. The police found two of Victim's teeth on the bedroom floor. Between the bedroom and the bathroom, they found a golf club with a "brownish substance" on it. In the bathroom, they found blood on the floor, blood spatters on the wall, and wet, bloody towels. A bloody towel rack had been pulled from the wall with the brackets still attached. A bloody, broken, wooden spoon lay near it. Smeared blood stained the sink. The shower curtain had been pulled down. Blood covered the bathtub.

         ¶10 The police found Victim lying in a pool of blood. He had blood "all over him" and "was lying prone on the floor not moving." One officer thought Victim had been killed because of the extent of his facial injuries.

         ¶11 Meanwhile, Tulley was sitting in the bedroom, drunk, with blood on his hands, face, and clothing, holding a gallon-sized container of liquor in one hand and a 20-ounce beer can in the other. Tulley screamed at the police to get out and attempted to hit the officer with the bottle and the beer can. The police temporarily incapacitated Tulley with a Taser and handcuffed him.

         ¶12 After his arrest, Tulley requested that police officers photograph his face to document a cut where Tulley claimed Victim had held the knife. An officer took the photo, but "didn't see anything at that spot."[3]

         ¶13 Victim arrived at the hospital covered in blood and in serious condition. He had multiple facial lacerations that required plastic surgery. Victim's eyes were swollen shut and one of his eyeballs was bruised. His nasal bone, nasal septum, and eye sockets were fractured. His sinuses were fractured and filled with blood.

         ¶14 Emergency room doctors diagnosed Victim with a traumatic brain injury and concluded that there was "a reasonable risk that he would die" from the injuries he sustained. Victim remained in the hospital for nearly two days. At the recommendation of his doctor, Victim was placed in a skilled nursing facility after discharge from the hospital.

         ¶15 The State charged Tulley with intentional aggravated abuse of a vulnerable adult, failure to register as a sex offender, and interference with an arresting officer. Tulley claimed he was justified in using force against Victim to prevent death or serious bodily injury, or to prevent the commission of forcible sexual abuse.

         ¶16 Before his trial, Tulley sought to introduce evidence of several phone calls Victim made to Tulley's sister which she described as sexual and "disgusting." The district court denied Tulley's motion. Tulley also sought to introduce evidence of Victim's numerous prior convictions for rape and sodomy of women and children. The convictions had occurred between 1959 and 1985. Tulley also wanted to introduce evidence that Victim returned to prison in 1992 after engaging in sexual activity with a male roommate while on parole.

         ¶17 Tulley argued that this evidence could be admitted for three non-character purposes under Utah Rule of Evidence 404(b): (1) to demonstrate the reasonableness of his response; (2) to demonstrate Victim's motive to sexually assault Tulley; and (3) to demonstrate that Victim had expressed "some confusion about his sexual orientation."

         ¶18 The district court concluded that "based upon 404(b) associated with at least the absence of mistake or motive and/or intent . . . being the fact that this is something that has a history with [Victim], at least in one period of time, [the evidence Tulley wanted to introduce] certainly falls within what might otherwise be the exception under 404(b)." The court granted Tulley's motion "to a very limited extent . . . . to indicate that there is some sort of history of . . . confusion associated with sexual preference and sexually acting out." The court explained that rule 403 "suggests that although I'm letting this evidence in, I'm only letting it in, in a sanitized fashion . . . ."

         ¶19 Tulley also proposed a jury instruction to explain his self-defense theory:

Travis Tulley is justified in using force against [Victim] when and to the extent that Travis Tulley reasonably believed that force was necessary to defend himself against [Victim's] imminent use of unlawful force against him. Travis Tulley was also justified in using force intended or likely to cause death or serious bodily injury against [Victim] if he reasonably believed that such force was necessary to prevent death or serious bodily injury to him as a result of [Victim's] imminent use of unlawful force, or to prevent the commission of a forcible felony, including forcible sexual abuse.

(Emphasis added). The district court accepted the standard portion of the instruction, which included all of the language Tulley proposed except for the phrase "including forcible sexual abuse." The court explained that it would not "make caveats and interlineations to address" forcible sexual abuse, because the jury instruction is "broad enough to incorporate it and you may argue from that, of course, that indeed this is exactly what [the self-defense] statute contemplates . . . ."

         ¶20 Tulley also objected to one of the State's instructions, arguing that it was unconstitutionally vague. The State's proposed instruction defined "serious physical injury":

"Serious physical injury" means any physical injury or set of physical injuries that:
a. Seriously impairs a vulnerable adult's health;
b. Was caused by the use of a dangerous weapon;
c. Involves physical torture or causes serious emotional harm to a vulnerable adult; or
d. Creates a reasonable risk of death.

         Tulley objected to the language "[s]eriously impairs a vulnerable adult's health" and argued "it is impossible to determine what the language means." Tulley argued that the statute is "void for vagueness and unconstitutionally vague." The district court overruled Tulley's objection and explained that "two experts testif[ied] in this particular case, both associated with what it does or doesn't mean or what the understanding of common usage may be associated with impairment."

         ¶21 Tulley testified at trial. He explained that after he woke up and felt Victim's hands on his "phallus and . . . scrotum[, ]" he "started throwing [his] fists," and estimated that he hit Tulley four or five times. Tulley did not have pants on, and said that he had "no memory . . . or knowledge" of how they were removed. He said he hit Victim because he could only see part of Victim's face "from the knife that was straight pointing at me." When Tulley started "cussing" at Victim, Tulley said Victim went into the bathroom, at which point Tulley grabbed the knife and threw the knife in the sink. Tulley said he then went to the bedroom and remembered "getting down on the ground and . . . kind of pounding [his] fists as [he] was kneeling to the ground." He fell asleep in the bedroom, but later awoke when he heard a noise in the bathroom.

         ¶22 Tulley testified that he went to the door and saw Victim's "feet and . . . legs protruding out" from the bathroom, and then found Victim with blood pooled around him, "moving around in it." When he tried to talk to Victim, Tulley said that Victim told him to leave him alone. Tulley ignored Victim's request. Tulley testified that he picked Victim up from the bathroom floor, but dropped him because a dog bite had "totally destroyed" his left hand in the months preceding the incident. Tulley said he had Victim's blood on his body from attempting to lift him up and got more blood on his hands after trying to lift Victim a second time. When he couldn't lift Victim, Tulley explained that he started "flicking [his] hands" because of the blood on him.

         ¶23 Tulley said he took "a handful" of pills out of Victim's medicine cabinet that contained both sleeping and pain medications and "chugged" out of a bottle of liquor in the kitchen. Tulley testified that he drank half of the gallon bottle and that he did not remember what happened next, but when he came to, he was in the bedroom leaning against the bed, at which point Boren knocked on the door. Tulley explained that after Boren entered and the building manager arrived, he drank the rest of the gallon liquor bottle. He testified that the next thing he remembered was being tased.

         ¶24 The jury convicted Tully of reckless aggravated abuse of a vulnerable adult, a third degree felony, and interference with an arresting officer, a class B misdemeanor. Tulley pled guilty to failure to register as a sex offender, a third degree felony. Because Tulley had two prior convictions for violent offenses, his reckless aggravated abuse of a vulnerable adult charge carried a potential enhancement to a first degree felony. See Utah Code § 76-3-203.5(2).

         ¶25 On the day of sentencing, Tulley's counsel filed a motion challenging the constitutionality of the habitual violent offender statute. Tulley argued that the statute twice placed him in jeopardy contrary to the Fifth Amendment of the United States Constitution and article I, section 7 of the Utah Constitution. Tulley also posited that the statute subjected him to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and article I, section 9 of the Utah Constitution. The district court denied Tulley's motion. Tulley received a sentence enhancement to a first degree felony sentence, but he also received a sentence reduction, resulting in an overall enhancement to a second degree felony sentence. Tulley appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶26 Tulley raises four issues on appeal. First, Tulley contends that the district court abused its discretion when it excluded evidence of Victim's history of sexual misconduct. Most decisions to admit or exclude evidence "involve a threshold statement of the legal principle governing admission or exclusion, findings of fact pertinent to a determination, and the application of the legal principle to the facts at hand with regard to admissibility." Arnold v. Grigsby, 2018 UT 14, ¶ 9, 417 P.3d 606. "We review the legal questions to make the determination of admissibility for correctness." Id. (citation omitted). And we review a district court's ultimate decision to admit or exclude evidence for an abuse of discretion. State v. Lowther, 2017 UT 34, ΒΆ ...


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