State of Utah v. Pulley

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

William Scott Pulley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010291-CA

F I L E D
November 7, 2002 2002 UT App 373 -----

Third District, Salt Lake Department
The Honorable Randall N. Skanchy

Attorneys:
Bradley P. Rich and Vanessa Ramos-Smith, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Thorne.

THORNE, Judge:

William Scott Pulley appeals his convictions of one count of rape of a child, a first degree felony, and two counts of sodomy of a child, a first degree felony. We affirm.

Pulley first claims that the trial court erred when it failed to grant him a continuance to secure an expert witness.(1) We review a trial court's decision to grant or deny a motion to continue for whether the trial court exceeded its discretion. See State v. Wallace, 2002 UT App 295,¶13, 456 Utah Adv. Rep. 8. In denying Pulley's request, the court stated: I don't think that particularly when at this time there is not even a substantial certainty that the expert could be retained or who it is that would testify, I think at this time it's fair to say that it's conjectural that the Defendant could or would be able to get an expert.

During a subsequent hearing, Pulley renewed his request for a continuance. The court stated:

At this time, I am going to deny the request to continue the trial date to allow an expert. I'll indicate that there's been sufficient opportunity prior to the setting of the trial date as well as time since the trial date was set that an expert could have been designated in a timely fashion. Because it is unclear whether Pulley had retained or would have been able to retain an expert, who the expert was, to what the expert would testify, and because Pulley had ample opportunity to obtain an expert, the trial court did not exceed its permitted range of discretion when it denied Pulley's motion to continue.

Pulley also claims his trial counsel was ineffective because he failed to properly notice or subpoena a proposed expert witness. In cases involving allegations of ineffectiveness, we must review the trial record. However, in circumstances where the record does not contain the facts necessary to evaluate a claim of ineffectiveness, parties may ask the appellate court to remand the matter to the trial court for an evidentiary hearing. See Utah R. App. P. 23B. While rule 23B does allow an appellate court to remand for a hearing upon its own motion, "[s]uch a remand is limited to circumstances where 'the claim has been raised and the motion would have been available to a party.'" State v. Hopkins, 1999 UT 98,¶13 n.1, 989 P.2d 1065. Here, the record does not contain any facts upon which we can evaluate the competency of Pulley's trial counsel. See, e.g., Provo City v. Thompson, 2002 UT App 63,¶11, 44 P.3d 828. Despite this defect, Pulley did not file a rule 23B motion.

Moreover, Pulley presents no facts regarding what expert he would have retained, to what the expert would have testified, or how this testimony would have benefitted his case. Thus, a rule 23B motion would not have been available to him, see id., nor is it available to us. Therefore, on the record before us, we cannot say Pulley's trial counsel was ineffective.

Finally, Pulley claims the physical evidence did not support the victim's story and the victim's account of the abuse was unbelievable. When reviewing a jury verdict wherein "conflicting, competent evidence was presented, we . . . 'assume that the jury believed the evidence supporting the verdict.'" State v. Boyd, 2001 UT 30,¶14, 25 P.3d 985 (quoting State v. Dunn, 850 P.2d 1201, 1213 (Utah 1993)).

Here, the jury was presented with competent evidence supporting each element required to prove rape and sodomy of a child. The victim testified her father had abused her over one hundred times and she was able to describe in detail both her father's genitalia and the sex acts he performed on her. In addition, contrary to Pulley's assertion, the physical evidence was consistent with and supported the victim's account of the abuse. Thus, the evidence was sufficient to support the jury's verdict.

Accordingly, we affirm Pulley's convictions.
 
 

______________________________
William A. Thorne Jr., Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge

1. Pulley motioned for a continuance on several occasions and was successful once. At a hearing on November 8, 2000, the trial court granted Pulley a continuance after learning that the prosecution had not provided the defense with certain audiotaped interviews of the victim. In contrast, the trial court denied Pulley's two requests for a continuance to obtain an expert. It is unclear from Pulley's brief which of these two denials he attacks. However, for the purpose of this appeal, we treat them as one request.