State v Tulley

Tulley appeld his vulnerable adult abuse conviction and sentence. The Court, with Lee concurring, affirmed. The majority held there was no abuse of discretion in the district court limiting testimony about the victim’s sex crime convictions as the district court could reasonably conclude several of the convictions were too old and too dissimilar to be relevant to the self-defense issue in this case and those involving minors could inflame the jury on an improper basis against the victim and Tulley chose not to introduce the sanitized version of victim’s past. It held there was no error in the district court not instructing the jury that forcible sex abuse is included in the forcible felonies which can allow self-defense as forcible sex abuse can be committed without creating a risk of death or serious bodily injury, such a risk must be present for a self-defense charge under Utah Code 76-2-402(4)(b) and thus Tulley’s proposed instruction did not accurately state the law. It rejected Tulley’s vagueness challenge to Utah Code 76-5-11(q)(i)(and (ii) holding a categorical approach is not required as the Utah statute looks to conduct not elements and as applied to Tulley there was no vagueness as he was on notice that punching victim four or five times in the head with enough force to bruise victim, break facial bones and cause traumatic brain  injury could result in serious bodily injury and the pool of blood under victim, dislodged teeth and bloody weapons at the scene eliminated any risk of arbitrary charging decisions by the prosecutor here.  It rejected Tulley’s challenge to Utah’s career criminal statue as it cannot be said enhancing a sentence from 0 to 5 years to 1 to 15 years would shock the conscience of all reasonable people and Tulley’s historical analysis did not change the outcome as one historical fact (protecting polygamists form disproportionate sentences) does not establish the enhancement here violated Utah Constitution Article I, Section 9 particularly as Section 9 does not mention proportionality nor can it be fairly read to include protection against proportionality and Tulley’s double jeopardy argument failed to connect his sparse authority to the meaning of Utah’s double jeopardy clause. Lee concurred arguing the shock the conscience standing is wrong as there is no proportionality review allowed under eh original understanding of section 9.