Certification from the Court of Appeals
District, Salt Lake The Honorable Judge Randall N. Skanchy
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
Justice Pearce authored the opinion of the Court in which
Chief Justice Durrant, Justice Himonas, and Judge Toomey
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
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.
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.
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.
Tulley met Victim at the sex offender treatment program they
both attended. 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.
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
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."
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." 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.
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
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
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.
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.
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
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.
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.
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.
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.
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."
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 . . . ."
Tulley also proposed a jury instruction to explain his
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 . . . ."
Tulley also objected to one of the State's instructions,
arguing that it was unconstitutionally vague. The State's
proposed instruction defined "serious physical
"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.
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."
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.
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.
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.
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 §
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
AND STANDARDS OF REVIEW
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, ¶ ...