State v. Tulley

This opinion is subject to revision before final
publication in the Pacific Reporter

2018 UT 35

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Appellee,
v.
TRAVIS ROGER TULLEY,
Appellant.

No. 20150241
Filed July 25, 2018

On Certification from the Court of Appeals

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

Attorneys:
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.
ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion.
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.

JUSTICE PEARCE, opinion of the Court:
 STATE v. TULLEY
Opinion of the Court

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

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1 “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most favorable
to the verdict, and we recite the facts accordingly. We present
conflicting evidence only when necessary to understand issues
raised on appeal.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116
(citation omitted).

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Opinion of the Court

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

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2Victim’s living room connected to the kitchen. The living room
and kitchen were also connected to a hallway that led to the
bathroom and bedroom.

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Opinion of the Court

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

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3 Another officer testified that she noticed “a little scrape
[or] . . . a cut.”

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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:

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Opinion of the Court

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

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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

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Opinion of the Court

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, ¶ 17, 398 P.3d 1032. A district
court “abuses its discretion only when ‘its decision to admit or
exclude evidence is beyond the limits of reasonability.’” Id. (citation
omitted).
¶27 Second, Tulley contends that the district court erred in
failing to instruct the jury that the term “forcible felony” includes
sexual offenses. “Whether a jury instruction correctly states the law
presents a question of law which we review for correctness.” State v.
Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444.
¶28 Third, Tulley contends that the definition of “serious
physical injury” set forth in the aggravated abuse of a vulnerable
adult statute, and adopted by the district court in the jury
instructions, “rests on provisions that are void-for-vagueness both
facially and as-applied.”
¶29 Finally, Tulley contends that Utah’s habitual violent
offender statute violates the Utah Constitution’s cruel and unusual
punishment and double jeopardy clauses. A statute’s
constitutionality is a question of law that we review for correctness,
giving no deference to the district court. State v. MacGuire, 2004 UT 4,
¶ 8, 84 P.3d 1171.

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ANALYSIS
I. Evidence of Prior Sexual Misconduct
¶30 Tulley first contends that the district court abused its
discretion when it excluded evidence of Victim’s history of sexual
misconduct. Tulley argues that the evidence “was central to the
plausibility of [his] testimony. . . . Not only did it shed light on
[Victim’s] motivations in committing a sexual attack, but it also
demonstrated the reasonableness of Tulley’s response.”
¶31 Tulley sought to introduce the following evidence of
Victim’s criminal past: a 1959 sexual assault conviction; a 1961
conviction for rape of a 17-year-old girl; a 1969 conviction for rape of
a 14-year-old girl; a 1973 conviction for attempted rape of a
19-year-old woman; a 1979 conviction for “contributing to the sexual
delinquency” of a 14-year-old boy; a 1979 conviction for sodomy of a
woman; an arrest for sexual offenses against a 14-year-old and
15-year-old boy around 1985; and evidence that Victim “sexually
acted out with a roommate” during treatment while he was on
parole, and returned to prison.
¶32 Tulley also sought to introduce evidence of the sexually
explicit phone calls that Victim made to Tulley’s sister in the months
preceding the assault.
¶33 As an initial matter, the district court ruled orally from the
bench and the court’s rationale is not entirely clear. 4 It appears that
the district court concluded that the evidence “certainly falls within
what might otherwise be an exception under 404(b).” But the court
then referenced Utah Rule of Evidence 403 in holding that “[w]e are
not going back to the 60’s and the 70’s, but simply to indicate that
there is some sort of history . . . of confusion associated with sexual
preference and sexually acting out.” Therefore, the court said that

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4 This should not be read as a criticism of the district court,
because it isn’t. We know that district courts must make a multitude
of decisions in the course of a trial and frequently will not have the
time to issue a written decision. We reference the oral ruling only to
illustrate why the record does not provide us with tremendous
visibility into the basis for the district court’s decision.

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the evidence would be admitted in a sanitized form, but “how we
sanitize that in some way, I’m not certain.” 5
¶34 The rationale behind the district court’s rule 403 decision
appears to be rooted in its concern about the age of the evidence and
the risk of unfair prejudice. While discussing the convictions “from
the 60’s and 70’s,” the court explained that Utah Rule of Evidence
609 “has to apply by way of a guideline associated with what might
otherwise be stale on old claims.” 6
¶35 “Evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.” UTAH R.
EVID. 404(b)(1). This evidence, however, “may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Id. 404(b)(2). Even then, under rule 403, the court “may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
_____________________________________________________________
5 It appears that this ruling did not apply to the evidence of the
dirty phone calls Victim made to Tulley’s sister. With respect to
those, the district court concluded that they would not be admitted,
apparently on relevance grounds. Tulley claims this decision falls
outside the bounds of the district court’s discretion. We disagree, but
affirm the district court on an alternative ground. See Dipoma v.
McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225 (“[I]t is well settled that an
appellate court may affirm the judgment appealed from ‘if it is
sustainable on any legal ground or theory apparent on the
record . . . .’” (citation omitted)). On the spectrum of unacceptable
conduct, a chasm lies between Victim’s obscene phone calls—the
specifics of which were not proffered—and sexually assaulting
someone at knife point. The probative value of the phone calls—if
any—is substantially outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the jury. See UTAH R. EVID. 403.
Accordingly, the district court did not abuse its discretion by
excluding this evidence.
6 Under Utah Rule of Evidence 609(b), evidence of a prior
conviction that is older than ten years and used to attack a witness’s
character for truthfulness is only admissible if “its probative value,
supported by specific facts and circumstances, substantially
outweighs its prejudicial effect . . . .”

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wasting time, or needlessly presenting cumulative evidence.” Id. 403.
“[U]nfair prejudice results only where the evidence has an undue
tendency to suggest decision upon an improper basis.” State v. Reece,
2015 UT 45, ¶ 69, 349 P.3d 712 (citation omitted). To determine
whether it will admit evidence under rule 403, the court must “bind
its analysis to the text of rule 403, considering those factors that are
appropriate given the particular circumstances of the case.” State v.
Lowther, 2017 UT 34, ¶ 45, 398 P.3d 1032.
¶36 Although Tulley was not using Victim’s prior sexual
misconduct for impeachment purposes, the district court’s
invocation of rule 609 suggests that it had some concern about the
age of the evidence. Tulley argues that the district court improperly
relied on rule 609. But we do not read the ruling that way. It does not
appear that the court believed that rule 609 applied or compelled a
decision. Rather, it appears that the court mentioned rule 609 to
illustrate that evidence of acts from decades ago might possess little
probative value.
¶37 Tulley argues that the evidence “revealed [Victim] was
motivated by sexual opportunism, ambivalence, and deviancy,
which supported Tulley’s narrative and explained why [Victim]
would sexually attack a stronger, younger male friend.” Tulley also
argues that his “knowledge that [Victim] was a convicted rapist
explained why Tulley would be fearful of [Victim] notwithstanding
[Victim’s] age and stature.”
¶38 The district court was within its broad discretion in finding
that the probative value of Victim’s prior sexual misconduct to
demonstrate motive or intent to attack Tulley or to show that Tulley
had a basis to fear Victim was low. None of Victim’s prior acts
resembled his attack on Tulley—a majority of Victim’s prior victims
were female, and those who were male were minors. 7 And, as the
district court noted, they were decades in Victim’s past.
¶39 And, whatever limited probative value the evidence might
contain was substantially outweighed by the danger of unfair
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7 The record does not reveal the sex or age of the victim in the
1959 conviction. The State asserts all of Victim’s crimes were
perpetrated against women or minors—an assertion Tulley does not
dispute. Even if that single conviction involved an adult male, the
age of conviction, coupled with the lack of details about the assault,
would not change our conclusion that the district court did not abuse
its discretion.

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prejudice. Many of Victim’s instances of prior misconduct involved
sexual crimes against children; crimes with a propensity to stir
strong feelings. The district court could properly conclude that
presenting evidence of these acts may have confused the issues or
mislead the jury, thus encouraging the jury to decide “upon an
improper basis.” Reece, 2015 UT 45, ¶ 69 (citation omitted); see also
UTAH R. EVID. 403. Accordingly, the district court did not abuse its
discretion when it excluded evidence of Victim’s prior sexual
misconduct.
¶40 Moreover, the district court allowed Tulley to present
evidence of Victim’s “confusion associated with sexual preference
and sexually acting out . . . . in a sanitized fashion.” At trial, Tulley
chose not to introduce this evidence. Accordingly, even if the district
court abused its discretion, Tulley would be hard-pressed to
demonstrate that the court’s exclusion prejudiced him when he did
not attempt to introduce the evidence in the manner the district
court ruled he could.
II. Forcible Felony Jury Instruction
¶41 Tulley next contends that the district court erred by failing
to instruct the jury that the term “forcible felony”—when used to
explain when a person may legally defend himself—includes sexual
offenses. Specifically, Tulley argues that the district court should
have expanded the definition of “forcible felony” to clarify for the
jury that the term includes sexual offenses such as forcible sexual
abuse.
¶42 “A person is justified in using force intended or likely to
cause death or serious bodily injury only if the person reasonably
believes that force is necessary to prevent death or serious bodily
injury to the person . . . as a result of another person’s imminent use
of unlawful force, or to prevent the commission of a forcible felony.”
UTAH CODE § 76-2-402(1)(b). The self-defense statute defines forcible
felony:
(a) For purposes of this section, a forcible felony
includes aggravated assault, mayhem, aggravated
murder, murder, manslaughter, kidnapping, and
aggravated kidnapping, rape, forcible sodomy, rape of
a child, object rape, object rape of a child, sexual abuse
of a child, aggravated sexual abuse of a child, and
aggravated sexual assault . . ., and arson, robbery, and
burglary . . . .
(b) Any other felony offense which involves the use
of force or violence against a person so as to create a

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substantial danger of death or serious bodily injury
also constitutes a forcible felony.
(c) Burglary of a vehicle . . . does not constitute a
forcible felony except when the vehicle is occupied at
the time unlawful entry is made or attempted.
Id. § 76-2-402(4).
¶43 Tulley argues that although section 402(4) does not
explicitly list “forcible sexual abuse” as a forcible felony, “the
statutory term ‘includes’ is an ‘established term of art’ indicative of a
‘partial list.’ Thus, section 76-2-402’s enumerated list of offenses is
non-exhaustive . . . .” (Citations omitted).
¶44 We agree. “[I]ncluding is an established term of art with an
established meaning. In statutory cases far and wide, the term is
routinely construed as introducing a non-exclusive, exemplary list.”
Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 53, 345 P.3d 619 (citation
omitted). “To include is to embody or encompass . . . .” Id.
Accordingly, we read the list of examples of acts amounting to a
forcible felony as a non-exhaustive list. However, this
non-exhaustive list is not without limitation because section
76-2-402(4)(b) restricts the types of crimes that may be considered a
forcible felony.
¶45 This is apparent from the statute’s structure. Section
402(4)(a) says that “forcible felony” includes eighteen enumerated
crimes that constitute a forcible felony. If the statute stopped there,
Tulley might have a persuasive argument. But the statute further
describes a forcible felony as “[a]ny other felony offense which
involves the use of force or violence against a person so as to create a
substantial danger of death or serious bodily injury.” UTAH CODE
§ 76-2-402(4)(b).
¶46 Section 402(4)(b) would be meaningless unless it is read to
limit the types of felonies that can be included in the category of
forcible felonies. Accordingly, we conclude that although section
402(4)(a) provides a non-exhaustive list of felonies, section 402(4)(b)
describes the types of crimes that can be added to that
non-exhaustive list. And that those crimes “involve[] the use of force
or violence against a person so as to create a substantial danger of
death or serious bodily injury . . . .” Id.
¶47 In some circumstances, the commission of forcible sexual
abuse can create a substantial danger of serious bodily injury. A
person commits forcible sexual abuse if:

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[T]he victim is 14 years of age or older and, under
circumstances not amounting to rape, object rape, sodomy,
or attempted rape or sodomy, the actor touches the anus,
buttocks, or any part of the genitals of another, or
touches the breast of a female, or otherwise takes
indecent liberties with another, or causes another to
take indecent liberties with the actor or another, with
intent to cause substantial emotional or bodily pain to
any person or with the intent to arouse or gratify the
sexual desire of any person, without the consent of the
other, regardless of the sex of any participant.
UTAH CODE § 76-5-404(1) (2017) (emphasis added). 8
¶48 The definition of forcible sexual abuse contemplates two
degrees of the crime: one where a defendant causes serious bodily
injury to another and one that does not. Id. § 76-5-404(2). Forcible
sexual abuse is a first degree felony when a defendant causes serious
bodily injury to another during the commission of the forcible sexual
abuse. Id. § 76-5-404(2)(b). If the defendant does not cause serious
bodily injury, forcible sexual abuse is a second degree felony. Id.
§ 76-5-404(2)(a).
¶49 As explained above, for self-defense purposes, forcible
felonies are limited to eighteen enumerated crimes and crimes that
“involve[] the use of force or violence against a person so as to create
a substantial danger of death or serious bodily injury . . . .” Id.
§ 76-2-402(4)(b). And because of the two variants of forcible sexual
abuse, it is possible for an actor to commit the crime in a manner that
may create a substantial danger of death or serious bodily injury,
and in a manner that does not. The degree of risk, and the
defendant’s perception of that degree of risk dictate whether or not a
defendant was justified in using force intended or likely to cause
death or serious bodily injury. In other words, a defendant may be
justified to use deadly force to prevent forcible sexual abuse that the
defendant reasonably believes is necessary to prevent death or

_____________________________________________________________
8 This section was amended in 2018. See 2018 Utah Laws ch. 192.
The amendment replaced the word “person” with “individual,”
adds “pubic area” to the list of body parts encompassed by the
statute, and removes “or causes another to take indecent liberties
with the actor or another” from the statute. Neither party analyzed
the effect of the new statute, nor are the amendments relevant to our
analysis. Accordingly, we cite to the 2017 version of the statute.

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serious bodily injury, but cannot use such force to prevent forcible
sexual abuse that the defendant does not reasonably believe presents
such a risk. 9
¶50 That distinction assumes importance here because if Victim
had a knife, Tulley might be justified in using deadly force to
prevent the attack. And the jury was properly instructed in that
regard. The instruction told the jury that if Tulley reasonably
believed that “the force [was] necessary to prevent death or serious
bodily injury,” he was justified in using force to defend himself.
Tulley wanted the district court to go one step further and include
language in the instruction that suggested forcible sexual abuse
would always present a danger of death or serious bodily injury. For
the reasons we have just discussed, that is not a correct statement
and Tulley’s proposed amendment to the instruction would have
misstated the law. Accordingly, the district court did not err in
instructing the jury.

_____________________________________________________________
9 The Legislature’s logic becomes clear when we step back from
the definitions to look at the larger statutory scheme. In section
76-2-402, the Legislature defines when the law will allow someone to
use deadly force. The specifically enumerated crimes are those that
carry a high risk of a victim suffering death or serious bodily injury.
The Legislature listed a number of crimes that fell into that category
and added the catch-all in section 76-2-402(4)(b) to ensure that no
similar crime was left out.
The Legislature also defined two types of “forcible sexual abuse.”
The first prong includes “forcible sexual abuse” as a second degree
felony and excludes those crimes—like rape and object-rape—that
present the possibility of a likelihood of death or serious bodily
injury. UTAH CODE § 76-5-404(1), (2)(a). The second prong defines
“forcible sexual abuse” as a first degree felony in circumstances
where the defendant “caused serious bodily injury to another.” Id.
§ 76-5-404(2)(b). This specifically carves out a category of forcible
sexual abuse where there may be no substantial danger of death or
serious bodily injury and a category where there is a substantial
danger of serious bodily injury. Because the Legislature made a
policy choice that deadly force can only be legally used when a
defendant reasonably believes that force is necessary to prevent
death or serious bodily injury, deadly force may not be used to ward
off the variant of forcible sexual abuse that does not threaten death
or serious bodily injury.

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Opinion of the Court

III. The Aggravated Abuse of a Vulnerable Adult Statute
¶51 Tulley next contends that “[t]he definition of ‘serious
physical injury’ set forth in the aggravated abuse statute rests on
provisions that are void for vagueness both facially and as-
applied.” 10 Tulley argues that a recent United States Supreme Court
case, Johnson v. United States, 135 S. Ct. 2551 (2015), “clarified that
when bringing a facial challenge, a defendant need not demonstrate
a statute’s vagueness in all of its applications.” Tulley urges us to
conclude that under Johnson, certain statutory provisions are facially
vague even if they are not vague when applied to a defendant’s
specific conduct. And Tulley argues that even if we disagree with his

_____________________________________________________________
10 Tulley levels arguments against subsections (i), (iii), and (iv) of
the definition of serious physical injury. See UTAH CODE
§ 76-5-111(q). Tulley acknowledges that his challenge to subsections
(iii) and (iv) are unpreserved, but argues that “the vagueness of
subsections (iii) and (iv) should have been obvious because counsel’s
objection to subsection (i) placed the court on notice that other
portions of the statute were similarly vague.” In other words, Tulley
asks us to review these unpreserved arguments under the plain error
exception to our preservation rules. This stretches plain error further
than we have ever extended it. We have never held that a district
court commits plain error when it fails to interpret a constitutional
objection to one subsection as an objection to all subsections.
Moreover, to demonstrate plain error, a defendant must establish
that “(i) [a]n error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for the
appellant . . . .” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(alteration in original) (citation omitted). “If any one of these
requirements is not met, plain error is not established.” State v.
Dunn, 850 P.2d 1201, 1209 (Utah 1993).
As our discussion below demonstrates, infra ¶¶ 51–73, the law in
this area was not plainly settled at the time Tulley objected to the
statute on constitutional grounds. See State v. Dean, 2004 UT 63,
¶¶ 17–18, 95 P.3d 276 (holding that an error was not obvious and
therefore not plain when “the law in [the particular] area was not
sufficiently clear or plainly settled . . . with respect to both Utah and
federal case law”). Because any vagueness in subsections (iii) and
(iv), even assuming that these provisions are vague, would not have
been obvious to the district court, Tulley cannot establish plain error.
We will not review his unpreserved arguments.

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reading of Johnson, the aggravated abuse of a vulnerable adult
statute is vague as applied to him.
¶52 An individual is guilty of aggravated abuse of a vulnerable
adult if, “[u]nder any circumstances likely to produce death or
serious physical injury, [that] person, including a
caretaker, . . . causes a vulnerable adult to suffer serious physical
injury . . . .” UTAH CODE § 76-5-111(2).
¶53 The statute defines “[s]erious physical injury” as
any physical injury or set of physical injuries that:
(i) seriously impairs a vulnerable adult’s health;
(ii) was caused by use of a dangerous weapon as
defined in Section 76-1-601;
(iii) involves physical torture or causes serious
emotional harm to a vulnerable adult; or
(iv) creates a reasonable risk of death.
Id. § 76-5-111(1)(q). “Physical injury” includes:
skin bruising, a dislocation, physical pain, illness,
impairment of physical function, a pressure sore,
bleeding, malnutrition, dehydration, a burn, a bone
fracture, a subdural hematoma, soft tissue swelling,
injury to any internal organ, or any other physical
condition that imperils the health or welfare of the
vulnerable adult and is not a serious physical injury as
defined in this section.
Id. § 76-5-111(1)(o).
¶54 To survive a vagueness challenge, a criminal statute must
“(1) ‘define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory
enforcement,’ and (2) ‘establish minimal guidelines’ that sufficiently
instruct law enforcement [so] as to avoid arbitrary and
discriminatory enforcement.” State v. Holm, 2006 UT 31, ¶ 77, 137
P.3d 726 (quoting Kolender v. Lawson, 461 U.S. 352, 357–58 (1983)).
¶55 The United States Supreme Court has instructed that when a
party raises both facial and as-applied vagueness challenges, “[a]
court should . . . examine the complainant’s conduct before
analyzing other hypothetical applications of the law.” Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). This
is because “[a] plaintiff who engages in some conduct that is clearly

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Opinion of the Court

proscribed [by statute] cannot complain of the vagueness of the law
as applied to the conduct of others.” Id.
¶56 Tulley contends that Johnson altered that general framework.
Specifically, Tulley argues that post-Johnson, it is permissible to
analyze the facial challenge first and, in fact, strike the statute as
unconstitutionally vague, even if the statute might not be vague
when applied to the case at hand.
¶57 Johnson examined the Armed Career Criminal Act of 1984
(the ACCA). 135 S. Ct. at 2555. The ACCA enhances the sentences of
restricted individuals who “ship, possess, and receive firearms” and
who also have “three or more earlier convictions for a ‘serious drug
offense’ or a ‘violent felony.’” Id. (citation omitted). The ACCA
defines “violent felony,” in part, as “any crime punishable by
imprisonment for a term exceeding one year . . . that . . . is burglary,
arson, or extortion, involves the use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” Id. at 2555–56 (first omission in original) (quoting 18 U.S.C.
§ 924(e)(2)(B)). The Supreme Court held that the “indeterminacy of
the wide-ranging inquiry required by” the italicized language,
known as the statute’s residual clause, “denies fair notice to
defendants and invites arbitrary enforcement by judges.” Id. at 2557.
¶58 The Supreme Court concluded that two features of the
ACCA’s residual clause “conspire[d] to make it unconstitutionally
vague.” Id. First, “the residual clause leaves grave uncertainty about
how to estimate the risk posed by a crime. It ties the judicial
assessment of risk to a judicially imagined ‘ordinary case’ of a crime,
not to real-world facts or statutory elements.” Id. Second, “the
residual clause leaves uncertainty about how much risk it takes for a
crime to qualify as a violent felony.” Id. at 2558.
¶59 The residual clause requires a court to employ what is
known as the “categorical approach,” in which the court examines
“the ordinary case of [a] defendant’s crime” and not “the particular
conduct in which the defendant engaged . . . .” Id. at 2561–62. Under
the categorical approach, “courts identify ‘the minimum criminal
conduct necessary for conviction under a particular statute’” and
“look only to the statutory definitions—i.e., the elements of
[the] . . . offense[], and not to the particular [underlying] facts.”

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United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018) (alterations in
original) (omission in original) (citations omitted). 11
¶60 The ACCA’s residual clause requires a sentencing court “to
look only to the fact that [a] defendant had been convicted of crimes
falling within certain categories, and not to the facts underlying the
prior convictions,” and thus requires the use of the categorical
approach. Taylor v. United States, 495 U.S. 575, 600–02 (1990). With
respect to the ACCA, “[u]nder the categorical approach, a court
assesses whether a crime qualifies as a violent felony ‘in terms of
how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular
occasion.’” Johnson, 135 S. Ct. at 2557 (citation omitted).
¶61 Although the Supreme Court bypassed the traditional
as-applied inquiry in Johnson, it also clarified that it “d[id] not doubt
the constitutionality of laws that call for the application of a
qualitative standard such as ‘substantial risk’ to real-world conduct;
‘the law is full of instances where a man’s fate depends on his
estimating rightly . . . some matter of degree.’” Id. at 2561 (omission
in original) (citation omitted). In other words, the Court appeared to
limit Johnson to statutes that require courts to employ the categorical
approach.
¶62 This interpretation of Johnson has been adopted by each
federal circuit court to address the issue. See United States v. Harden,
866 F.3d 768, 773 (7th Cir. 2017) (“[T]he Johnson Court’s concerns
extended only to categorical determinations under that standard

_____________________________________________________________
11 A common example is a statute involving crimes of moral
turpitude. A conviction for a crime of moral turpitude can have
immigration consequences. Pooja R. Dadhania, The Categorical
Approach for Crimes Involving Moral Turpitude After Silva-Trevino, 111
COLUM. L. REV. 313, 313 (2011). The Department of Justice and
federal courts of appeals routinely use the categorical approach to
determine whether a conviction for a particular offense constitutes a
crime of moral turpitude. Id. at 314. “The categorical approach
focuses on the elements of the criminal conviction, rather than the
acts underlying the conviction, to determine whether a particular
conviction constitutes a [crime of moral turpitude] for immigration
purposes.” Id. “The categorical approach considers whether moral
turpitude necessarily inheres in the elements of the offense for which
the noncitizen was convicted, without considering her actual actions.”
Id. (Emphasis added).

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rather than determinations based on the actual individual
circumstances.”); United States v. Prickett, 839 F.3d 697, 700 (8th Cir.
2016) (“[T]he Supreme Court was clear [in Johnson] in limiting its
holding to the particular set of circumstances applying to the ACCA
residual clause . . . .”(citation omitted)); Shuti v. Lynch, 828 F.3d 440,
449 (6th Cir. 2016) (acknowledging that Johnson does not apply to
cases that “call for the application of a qualitative standard such as
‘substantial risk’ to real-world conduct,” but nonetheless striking
down the challenged statute because it “mandate[d] a categorical
mode of analysis that deal[t] with ‘an imaginary condition other than
the facts’” (citations omitted)); United States v. Nastri, 647 F. App’x
51, 55 (2d Cir. 2016) (In Johnson “the Supreme Court specifically
noted that it did ‘not doubt the constitutionality of laws that call for
the application of a qualitative standard such as “substantial risk” to
real-world conduct.’ Whether a defendant’s actual two-year
drug-distribution conspiracy falls within the scope of ‘a substantial
period of time’ is precisely this kind of qualitative standard.”
(quoting Johnson, 135 S. Ct. at 2561)); Dimaya v. Lynch, 803 F.3d 1110,
1116 (9th Cir. 2015) (“In many circumstances, of course, statutes
require judges to apply standards that measure various degrees of
risk. The vast majority of those statutes pose no vagueness problems
because they ‘call for the application of a qualitative standard such
as “substantial risk” to real world conduct.’ The statute at issue in
Johnson was not one of those statutes, however. Nor is the provision
at issue here.” (footnote omitted) (citations omitted)); United States v.
Schofield, 802 F.3d 722, 731 (5th Cir. 2015) (per curiam) (“The Court in
Johnson noted that ‘laws [which] require gauging the riskiness of
conduct in which an individual defendant engages on a particular
occasion,’ like the SORNA residual clause, were distinguishable from
the law it declared unconstitutionally vague.” (alteration in original)
(quoting Johnson, 135 S. Ct. at 2561)). And, in our view, that is the
correct interpretation.
¶63 Comparing Utah’s aggravated abuse of a vulnerable adult
statute to the ACCA reveals that our statute does not call for the
categorical approach. The ACCA asks a court to examine whether
the defendant has been convicted of a “violent felony.” Johnson, 135
S. Ct. at 2557. The ACCA’s residual clause “refers to ‘a person
who . . . has three previous convictions’ for—not a person who has
committed—three previous violent felonies or drug offenses.” Taylor,
495 U.S. at 600 (omission in original) (quoting 18 U.S.C. § 924(e)(1)).
Additionally, the ACCA “defines ‘violent felony’ as any crime . . .
that ‘has as an element’—not any crime that, in a particular case,
involves—the use or threat of force.” Id. (quoting 18 U.S.C.
§ 924(e)(2)(B)(i)).

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¶64 In contrast, the aggravated abuse of a vulnerable adult
statute requires a court to examine conduct rather than elements.
Our statute mandates that a court analyze whether the defendant
“causes a vulnerable adult to suffer serious physical injury” “[u]nder
any circumstances likely to produce death or serious physical
injury.” UTAH CODE § 76-5-111(2). And the definition of “[s]erious
physical injury” requires examination of the underlying facts of a
crime to determine whether the defendant’s conduct caused physical
injuries such as “skin bruising, a dislocation, physical pain,
illness, . . . bleeding, [or] malnutrition,” or a combination of physical
injuries, that “seriously impair[] a vulnerable adult’s health.” Id.
§ 76-5-111(1)(o), (q)(i).
¶65 Because the aggravated abuse of a vulnerable adult statute
does not require a categorical approach, Johnson does not mark our
analytical path. See supra ¶ 63. Accordingly, we follow the traditional
route that starts with an examination of whether the aggravated
abuse of a vulnerable adult statute is vague as applied to Tulley.
Tulley contends that he can mount an as-applied challenge to the
language “seriously impairs a vulnerable adult’s health.” UTAH
CODE § 76-5-111(1)(q)(i).
¶66 We first examine whether the language of our aggravated
abuse of a vulnerable adult statute is so vague that Tulley would
have had inadequate notice that his assault of Victim had the
potential to cause a “physical injury or set of physical injuries” that
“seriously impairs a vulnerable adult’s health.” Id.; see Holm, 2006 UT
31, ¶ 77 (“To survive a void-for-vagueness challenge, a criminal
statute must [first] ‘define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement . . . .’” (quoting Kolender, 461 U.S. at
357)).
¶67 Tulley argues that he was not put on notice “as to whether
hitting [Victim] in the face 4–5 times was a circumstance likely to
produce such an unknown injury.” The State argues that the
definition of physical injury “puts ordinary persons on notice that
repeatedly punching an elder[ly] adult in the face, with or without
an object, is likely to produce bruising, bleeding, swelling, bone
fractures, and physical pain.” And the State argues that, when
considered together with the definition of “physical injury,” the
definition of “serious physical injury” places an ordinary person on
notice that infliction of the injuries like those Tulley visited upon
Victim are likely to seriously impair an elderly adult’s health.

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Opinion of the Court

¶68 Tulley testified that he punched Victim in the face four or
five times. Victim sustained multiple facial lacerations “requiring
plastic surgery repair,” facial swelling, bruising to one of his
eyeballs, and when he arrived at the hospital, he was in “serious”
condition and his eyes were “swollen closed.” Victim’s nasal bone,
nasal septum, and eye sockets were fractured. Victim also had blood
in his sinuses, indicative of “fractures of the sinuses.” Victim also
sustained a traumatic brain injury and doctors concluded that there
was “a reasonable risk that he would die” from his injuries. Victim
remained in the hospital for nearly two days and was placed in a
skilled nursing facility after discharge.
¶69 Tulley would have had to have known that wherever the
precise boundary between physical injury and serious physical
injury might lie, hitting a 71-year-old man in the face four to five
times with the force to produce “skin bruising,” “physical
pain,” “impairment of physical function,” “bleeding,” “a bone
fracture,” “soft tissue swelling, [or] injury to any internal organ” had
the potential to “seriously impair[]” Victim’s health. UTAH CODE
§ 76-5-111(1)(o), (1)(q)(i). Tulley cannot persuasively argue that he
would not have known that using the force that caused the severity
of the injuries he inflicted on Victim could result in serious bodily
injury.
¶70 We next consider whether the aggravated abuse of a
vulnerable adult statute “is sufficiently definite . . . as to discourage
arbitrary and discriminatory enforcement.” Holm, 2006 UT 31, ¶ 85
(omission in original) (citation omitted). To avoid unconstitutional
vagueness, criminal statutes must “establish minimal guidelines to
govern law enforcement” to prevent “a standardless sweep [that]
allows policemen, prosecutors, and juries to pursue their personal
predilections.” Kolender, 461 U.S. at 358 (alteration in original)
(citation omitted). Statutes should also avoid “entrusting lawmaking
‘to the moment-to-moment judgment of the policeman on his beat.’”
Smith v. Goguen, 415 U.S. 566, 575 (1974) (citation omitted). “When
confronted with an as-applied challenge to the constitutionality of a
criminal statute, ‘it is the application of the [challenged statute] to
defendant[] by law enforcement officials we review.’” Holm, 2006 UT
31, ¶ 85 (alterations in original) (quoting United States v. LaHue, 261
F.3d 993, 1007 (10th Cir. 2001)).
¶71 When the police arrived at Victim’s apartment, they walked
into “[a] bloody mess.” Blood was “smeared on the walls [and]
smeared all over the floor” in the hallway. The police found two
teeth on the bedroom floor. Between the bedroom and the bathroom,
they found a golf club with a “brownish substance” on it. In the

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bathroom, they found blood on the floor, blood spatters on the wall,
wet, bloody towels, a bloody towel rack that had been pulled from
the wall with its brackets still attached, a bloody, broken, wooden
spoon, a torn-down shower curtain, and blood in the bathtub and on
the sink.
¶72 Further, 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.” The facial trauma Victim sustained caused one officer to
believe that Victim had died.
¶73 The facts establish that Tulley assaulted Victim, and based
on the nature of his injuries, prosecutors acted reasonably in
concluding that the abuse rose to the level of serious bodily injury.
See Kolender, 461 U.S. at 358 (holding that criminal statutes must
establish minimal guidelines to govern police, prosecutors, and
juries). Because of the state of the crime scene, in addition to Victim’s
apparent injuries, and the officer’s concern that Victim may be dead,
we conclude that “no reasonable law enforcement official acquainted
with [Tulley’s] behavior could conclude other than that” Tulley had
committed aggravated abuse of a vulnerable adult. Holm, 2006 UT
31, ¶ 86. Accordingly, Tulley has failed to demonstrate that the
aggravated abuse of a vulnerable adult statute is vague as applied to
him.
IV. The Habitual Offender Statute
¶74 Tulley contends that Utah’s habitual offender statute
violates the Utah Constitution’s cruel and unusual punishment and
double jeopardy clauses. Specifically, Tulley argues that the “Utah
Constitution’s cruel and unusual punishment and double jeopardy
clauses protect third degree felony offenders from receiving a first
degree felony sentence based on prior convictions,” and that “Utah’s
habitual offender statute violates these provisions as applied to third
degree felony offenders like Tulley.” As an initial matter, we point
out that although Tulley received a sentence enhancement to a first
degree felony sentence, he also received a sentence reduction,
resulting in an overall enhancement to a second degree felony
sentence.
¶75 Under the statute, a defendant is a “[h]abitual violent
offender” if he or she is “convicted . . . of any violent felony
and . . . on at least two previous occasions has been convicted of a
violent felony” as enumerated in Utah Code section 76-3-203.5(1)(c).
UTAH CODE § 76-3-203.5(1)(b). If “the trier of fact determines beyond
a reasonable doubt that the person is a habitual violent offender,”
the penalty for a “third degree felony is as if the conviction were for

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Opinion of the Court

a first degree felony . . . .” Id. § 76-3-203.5(2)(a). Tulley argues the
cruel and unusual punishment and double jeopardy clauses protect
against this sentence enhancement.
¶76 We have held that under article I, section 9 of our state
constitution, a punishment is cruel and unusual “if it is ‘so
disproportionate to the offense committed that it shock[s] the moral
sense of all reasonable [persons] as to what is right and proper under
the circumstances.’” State v. Lafferty, 2001 UT 19, ¶ 73, 20 P.3d 342
(first alteration in original) (citation omitted). And, although a
divided court dedicated a lot of ink to analyzing the viability and
stare decisis value of that holding, it remains the standard unless and
until a party shoulders the burden of setting it aside. See generally
State v. Houston, 2015 UT 40, 353 P.3d 55.
¶77 Tulley argues that Utah’s habitual violent offender statute
“collapses both second and third degree felonies into the sentencing
category occupied by first degree felony offenses.” And that by
effectively punishing a third degree felony with the same severity as
a first degree felony, “the statute undermines the state constitutional
guarantee that sentences be graduated and proportionate to the
offense.” Tulley also argues that the statute “leaves little room for
courts to impose punishments that are proportionate to the
offender.” “In light of evolving views on criminal punishment,”
Tulley argues, “imposing a first degree felony sentence on a third
degree felony offender would ‘shock[] the moral sense of all
reasonable [persons] as to what is right and proper under the
circumstances.’” (Quoting Lafferty, 2001 UT 19, ¶ 73).
¶78 This conclusory line fails to persuade. Tulley’s two prior
convictions were for attempted sexual abuse of a minor and
attempted robbery. The sentence enhancement Tulley ultimately
received changed his sentence from zero-to-five years to
one-to-fifteen years. In light of Tulley’s history of violent felonies, we
cannot conclude that this sentence would shock the moral conscience
of all reasonable people.
¶79 Perhaps sensing that the Lafferty hurdle would be difficult to
overcome, Tulley also engages in an interesting discussion of Utah
history and asserts that both the double jeopardy and cruel and
unusual punishment clauses should be interpreted in light of that
history. With respect to the cruel and unusual punishment clause,
Tulley posits that the experience of many Utahns sentenced for
violation of polygamy laws informs the way we should understand
the protections the framers enshrined in article 1, section 9.

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¶80 We applaud Tulley’s efforts to engage with the original
meaning of our constitution. When asking this court to interpret
constitutional language, a party should “analyze the plain meaning
of the constitutional text, our prior case law, the interpretation other
courts have given to similarly worded provisions in their state
constitutions, and what lessons might be gleaned from the historical
context.” Waite v. Utah Labor Comm’n, 2017 UT 86, ¶ 100, 416 P.3d 635
(Pearce, J., concurring).
¶81 As much as we appreciate Tulley’s efforts here, he
ultimately does not provide the type of examination of the historical
record necessary to demonstrate that these clauses protect against
the sentence enhancements at issue here. For example, Tulley argues
that “[t]he intent of the framers in drafting the [cruel and unusual
punishment clause] reflects a concern for disproportionate
sentences.” To support his argument, Tulley explains that “attempts
to wipe out polygamy resulted in ‘numerous [ ] violations of basic
rights provided by the Bill of Rights,’ and accused polygamists faced
‘extreme sentences’ that were disproportionate to the sentences for
other crimes.” (Alteration in original) (Quoting Martha Sonntag
Bradley, “Hide and Seek”: Children on the Underground, 51 UTAH HIST.
Q. 133, 134, 141 (1983)). Tulley suggests that because the framers of
the Utah Constitution were “aware of the disproportionate sentences
handed out to polygamists,” they “would make every effort to
ensure the state constitution protected against such sentences.” But
citation to one historic example, without more, is not enough to
demonstrate that the framers of the Utah Constitution intended the
constitutional guarantees to protect against sentences like the one
dictated by the sentence enhancement our habitual violent offender
statute imposes.
¶82 Tulley can be forgiven for framing his argument this way, as
it models the way in which we have, at times, approached these
issues. Indeed, some of our case law interpreting the state
constitution has followed “a pattern of asserting one, likely true, fact
about Utah history and letting the historical analysis flow from that
single fact.” Waite, 2017 UT 86, ¶ 101 (Pearce, J., concurring). This
type of analysis poses problems because “undue reliance on
arguments based primarily upon the zeitgeist risks converting the
historical record into a type of Rorschach test where we only see
what we are already inclined to see.” Id.
¶83 For example, contrary to Tulley’s historical argument, the
framers of the constitution did not appear to make “every effort to
ensure the state constitution protected against [disproportionate]
sentences.” Most significantly, the framers did not make the effort to

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Opinion of the Court

ensure that article 1, section 9 contained the word disproportionate
or otherwise make any reference to disproportionate sentences. 12
UTAH CONST. art. I, § 9. We need to know what principles the framers
enshrined in the words “nor shall cruel and unusual punishments be
inflicted. Persons arrested or imprisoned shall not be treated with
unnecessary rigor.” Id. And while the historical backdrop may be
one piece of the puzzle, it does not, by itself, reveal the entire
picture. 13
¶84 Tulley’s examination of the double jeopardy clause is even
less illustrative. Tulley argues that “[i]n Utah and beyond, policy
makers and voters are realizing that a system of mass incarceration is
unsustainable, unjust, and poor policy.” Tulley cites a report of the
Utah Commission on Criminal and Juvenile Justice and a Utah
House bill which “amends Utah Code provisions regarding
corrections, sentencing, probation and parole, controlled substance
offenses, substance abuse and mental health treatment, vehicle
offenses, and related provisions to modify penalties and sentencing
guidelines, treatment programs for persons in the criminal justice
system, and probation and parole compliance and violations to
address recidivism.” See 2015 Utah Laws 2254. Yet Tulley does
nothing beyond citing this material to explain how these recent
policy trends should affect our interpretation of the double jeopardy
clause of the Utah Constitution. See Bank of Am. v. Adamson, 2017 UT

_____________________________________________________________
12We do not suggest that the constitution would have to use the
word disproportionate to give that meaning to the cruel and unusual
punishment clause. But a party will have to convince this court that
those who approved the Utah Constitution enshrined a protection
that would invalidate disproportionate sentences.
13 With respect to article 1, section 9, it bears remembering that,
even though we did not reach consensus in Houston, we have spent
considerable energy examining the meaning of that section. See
generally Houston, 2015 UT 40. Any party asking us to reexamine the
meaning we have ascribed to the cruel and unusual punishment
clause will not be writing on a blank slate, and to meet her burden of
persuasion, will likely need to engage with and expand upon the
discussion we began in Houston.

26
 Cite as: 2018 UT 35
LEE, A.C.J., concurring

2, ¶ 11, 391 P.3d 196 (An issue is inadequately briefed if the
argument “merely contains bald citations to authority [without]
development of that authority . . . .” (alteration in original) (citation
omitted)). Although Tulley has raised interesting policy arguments,
those arguments do not speak to the meaning of our double jeopardy
clause.
¶85 In short, Tulley has not demonstrated that the habitual
offender statute violates either the cruel and unusual punishment or
double jeopardy clauses of the Utah Constitution.
CONCLUSION
¶86 The district court did not abuse its discretion in excluding
evidence of Victim’s prior sexual misconduct and the district court
correctly instructed the jury. We conclude that the aggravated abuse
of a vulnerable adult statute is not unconstitutionally vague, and that
Tulley has not demonstrated that the habitual violent offender
statute violates the Utah Constitution. We affirm the district court.

ASSOCIATE CHIEF JUSTICE LEE, concurring:
¶87 I concur in the majority opinion but write separately to
register my continuing discomfort with the proportionality standard
established in State v. Houston, 2015 UT 40, 353 P.3d 55. 14 In Houston I
set forth my view that article I, section 9 of the Utah Constitution, as
originally understood, “does not deputize the courts to second-guess
punishments they deem excessive or lacking in proportionality, but
only to proscribe methods of punishment historically rejected as
barbaric or torturous.” Houston, 2015 UT 40, ¶ 157 (Lee, A.C.J.,
concurring in part and concurring in the judgment). This remains my

_____________________________________________________________
14 The majority attributes the standard it applies to State v.
Lafferty, 2001 UT 19, 20 P.3d 342. Supra ¶ 76. And the Lafferty opinion
does apply a standard like that employed by the court today. But I
view Houston as the key turning point in our jurisprudence—because
prior to Houston “no majority opinion of this court [had] ever
employed a state standard of proportionality that is distinct from the
federal standard.” State v. Houston, 2015 UT 40, ¶ 142, 353 P.3d 55
(Lee, A.C.J., concurring in part and concurring in the judgment). Our
prior cases, including Lafferty and also State v. Herrera, 1999 UT 64,
¶ 39, 993 P.2d 854, “simply parroted the governing federal standard”
and adopted it as our Utah standard without any independent
analysis of the terms of article I, section 9. Houston, 2015 UT 40, ¶ 142
(Lee, A.C.J., concurring in part and concurring in the judgment).

27
 STATE v. TULLEY
LEE, A.C.J., concurring

firmly held position. The briefing and argument in this case have
only reinforced the concerns that I expressed in Houston. They
demonstrate that judicial review for proportionality is both
incompatible with the original meaning of the Utah Constitution and
too “hazy and unworkable” to establish a reliable “guidepost” for
judges and litigants. See id. ¶ 146.
¶88 My point is not to fault the majority for its basis for resolving
this case. The Houston standard is, as the majority notes, the law of
the State of Utah. So unless and until that standard is set aside, the
court cannot be faulted for applying it. I write separately, however,
to reiterate some of the concerns that I raised in Houston—and to
observe that they are highlighted by our disposition of the case
before us on appeal.
¶89 The majority concludes that Mr. Tulley’s sentence—
one-to-fifteen years (enhanced from zero-to-five years) for
aggravated abuse of a vulnerable adult—would not “shock the
moral conscience of all reasonable people.” Supra ¶ 78. Yet the court
offers little insight into the basis of that conclusion. And I see no way
for us to make that sort of judgment in any reliable, transparent way.
Without access to polling data (hardly a basis for judicial decision
making) I am unsure how we can gauge the “moral conscience” of
the people on the propriety of a given criminal sentence. The best
evidence available to us on that question is the view expressed by
the people’s representatives in the legislature, who enacted the
applicable sentence enhancement provision into law. See UTAH CODE
§ 76-3-203.5. It seems a little presumptuous for judges to purport to
understand the people’s conscience better than their elected
representatives (who are regularly accountable to them in elections).
¶90 This standard thus asks us to second-guess the judgment
made by the legislature by consulting our “humanitarian instincts”
and personal beliefs. See Houston, 2015 UT 40, ¶ 155 (Lee, A.C.J.,
concurring in part and concurring in the judgment). Our instincts
and beliefs are useful—and even essential—on any of a range of
discretionary judgment calls we make in the judiciary. But they can’t
form the reliable basis for a principle of constitutional law.
¶91 For now I am content to concur in an opinion that applies
our precedent to the resolution of the case before us. But I, for one,
would remain open to an invitation that we revisit the standard we
established in Houston in an appropriate case in the future.

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