State v. Pullman , 2023 UT App 28 ( 2023 )

2023 UT App 28THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BECKY DEON PULLMAN,
Appellant.
Opinion
No. 20200279-CA
Filed March 23, 2023
Sixth District Court, Manti Department
The Honorable Wallace A. Lee
No. 181600120
Emily Adams and Freyja Johnson, Attorneys
for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in
which JUDGE MICHELE M. CHRISTIANSEN FORSTER and
JUSTICE JILL M. POHLMAN concurred.1
MORTENSEN, Judge:
¶1 Becky Deon Pullman contends that her father (Father)
asked her to repossess a car he had sold to an acquaintance
(Acquaintance). After Pullman retrieved the car, Acquaintance
reported it stolen, and Pullman was charged with theft. At trial,
Father denied asking Pullman to repossess the car. Pullman’s trial
1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
State v. Pullman
lawyer (Counsel) failed to call key witnesses and enter the car’s
title history into evidence. Because we agree with Pullman that
Counsel rendered deficient performance that prejudiced her, we
reverse her convictions and remand the matter for a new trial.
BACKGROUND
The Alleged Crime
¶2 After Acquaintance’s car broke down, Pullman suggested
to Father that he allow Acquaintance to borrow his car, which he
did. Soon after, Father and Acquaintance reached an agreement
in February or March 2018 for Acquaintance to purchase the car.
According to that agreement, Acquaintance would buy the car for
$2,700 through monthly payments to Father of $200 until
Acquaintance paid the total amount. But the only payment
Acquaintance made was a $1,200 “lump sum payment,” and
accordingly, the title remained in Father’s name.
¶3 Between April and June 2018, Acquaintance asserts that
Pullman contacted her three to five times, claimed that Pullman
had been placed “over her dad’s affairs,” and that Acquaintance
should “put the remainder of what [Acquaintance] owed on the
car into [Pullman’s] account.” Pullman also informed
Acquaintance that if she did not produce the money, “the car
would be gone.” Acquaintance testified that she refused to follow
this demand, at which point Pullman stopped contacting her. But
according to Pullman, Father had repeatedly asked her to “pick
up the car for him” because Acquaintance “was not making
payments” and he “couldn’t [go] and get the car.” Pullman
testified that she repeatedly called Acquaintance, but to no avail.
Eventually, Pullman determined it was time to pick up the car.
¶4 Pullman, who had obtained the keys, title, and registration,
first called the police to seek “assistance in the repossession of a
vehicle” but was unable to speak with an officer at that time.
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Instead of waiting until after she had spoken with an officer,
Pullman and a friend located the car at Acquaintance’s
boyfriend’s work during the first week of June 2018. The friend
took the keys to the car and drove it to the home of his niece.
Pullman claimed that she had no interest in the car and,
accordingly, that she did not keep track of where it was taken at
that time. Pullman then called the police and “stated that they had
been able to take care of everything, and they didn’t need . . .
assistance anymore.”
¶5 When Acquaintance discovered that the car was missing—
along with the personal property inside it (some stereo
equipment, an iPod, a sleeping bag, some jewelry, and some
clothing)—she contacted the police. The police responded by
contacting Father, who reported that he was not intent on
repossessing the car and that he never authorized Pullman to
repossess it. The police then turned their attention to Pullman.
When the police called, they began by asking about the car she
had requested help repossessing. Pullman responded, “Oh, yes,
that car. What about the car?” The police then asked where it was,
to which Pullman responded, “I have no idea what you’re talking
about. I don’t want to talk to you,” before hanging up. Although
the police did not reach out to Pullman again, she contacted them
a few hours later. She explained that (1) she faced financial
problems; (2) she was upset that Father sold the car to
Acquaintance because the “car was supposed to be her car”; (3)
Father had instructed her to get the car; (4) Father was “mentally
incapacitated,” could not “remember things,” did “not speak
well,” had “severe memory deficiencies,” and “simply didn’t
remember that he told her to go get the car”; and (5) she did not
know where the car was.
¶6 The State charged Pullman with two counts of theft—one
for the car and one for the personal property inside the car. See
Utah Code § 76-6-404 (“A person commits theft if he obtains or
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exercises unauthorized control over the property of another with
a purpose to deprive him thereof.”).
The Trial
¶7 At trial, Father testified that Pullman had no ownership
interest in the car, that he never gave her authority over his
financial affairs, that he never gave her permission to contact
Acquaintance to request payments for the car be made directly to
her, and that he never gave her permission to repossess the car.
Pullman, on the other hand, maintained that Father asked her
many times to repossess the car and that she did not return it to
him because he did not want it. She also testified that when she
looked in the car at the time she took it, “[t]here was nothing in
there.”
¶8 The jury found Pullman guilty of both counts of theft, and
at sentencing, based on the State’s representation of what it
“believe[d]” the value of the car to be, the court ordered Pullman
to pay a restitution” to Acquaintance.
Rule 23B Remand
¶9 Claiming on appeal that she had received ineffective
assistance of counsel, Pullman filed a motion under rule 23B of
the Utah Rules of Appellate Procedure seeking a remand to
develop evidence on whether Counsel was ineffective. See Utah
R. App. P. 23B(a) (“A party to an appeal in a criminal case may
move the court to remand the case to the trial court for entry of
findings of fact, necessary for the appellate court’s determination
of a claim of ineffective assistance of counsel.”). Specifically,
Pullman asserted that Counsel was ineffective for not
investigating evidence that allegedly showed Father had asked
her to repossess the car and that Father had later sold the
repossessed car to another individual. This court granted the
motion. On remand, the district court heard testimony from a
person Father allegedly spoke to about repossessing the car
20200279-CA 4 2023 UT App 28State v. Pullman
(Witness), the car’s post-repossession buyer (Buyer), and Buyer’s
wife (Wife). The title history was also admitted as an exhibit.
Findings on Remand
¶10 The court entered the following findings about Witness’s
testimony: (1) she worked at a gas station where Father would
stop in the mornings to have coffee with friends; (2) Father talked
with her about the car; (3) Father told her that “he had sold the car
to a girl who had stopped making payments” and that he had
asked Pullman to repossess the car after another person declined
to do so; (4) Father said he “wished he had known [Witness]
before, because he would have asked her to pick up the car for
him”; (5) Pullman “was at the gas station during the conversations
where [Father] talked to [Witness] about the car”; and (6) Witness
was not contacted by Counsel or an investigator before trial. The
district court also entered a finding that Witness had pled guilty
to taking “the identity of another” during a traffic stop and was
currently incarcerated for an assault conviction.
¶11 Regarding Buyer’s testimony, the district court entered the
following findings of fact: (1) Pullman had asked permission to
park the car on Buyer’s property, where it sat “for some time”; (2)
Buyer asked Wife “to talk with” Pullman about the car, and
Pullman “said she would have to ask” Father about the car; (3)
Buyer obtained the car’s VIN and went to the bank to get pre-
approved for a loan; (4) Father picked up Buyer and drove him to
the bank, where Buyer finalized a loan and Father received a
check, which he cashed at the bank; (5) Buyer identified his
signature as the buyer and Father’s name as the seller on the title
of the car, which indicated the date of purchase as July 7 or July
11, 2018; and (6) Buyer was not contacted by Counsel or an
investigator before trial.
¶12 The court entered the following findings about Wife’s
testimony: (1) Pullman came to her house and asked to park a car
that “she had just picked up . . . from someone . . . who had not
20200279-CA 5 2023 UT App 28State v. Pullman
paid” for it; (2) Pullman had the keys and title, both of which she
left with Wife; (3) Buyer had asked Wife to find out what Pullman
“was going to do with the [c]ar”; (4) Pullman told Wife that “she
needed to ask her dad about selling the [c]ar,” and that Father told
Pullman he was willing to sell it; (5) Wife communicated directly
with Father about the car; (6) Father picked up Buyer to go to the
bank after a loan for the car was pre-approved; (7) after Buyer and
Wife became interested in buying the car, Wife looked inside of it
and did not see an iPod, stereo equipment, or jewelry, but she did
see a dirty sleeping bag and a sweatshirt; and (8) Wife was not
contacted by Counsel or an investigator before trial.
¶13 The title, by which ownership was transferred, shows that
Father, as the car’s registered owner, assigned the title to Buyer in
July 2018 for $4,000. Other records from the Utah Division of
Motor Vehicles, admitted by the court on remand, indicate that
(1) Father was issued a title to the car on January 16, 2018, which
he canceled on July 26, 2018; (2) Buyer was issued a title (which
was encumbered by a lien to a bank in Beaver, Utah) to the car on
August 14, 2018; and (3) Buyer was issued a lien-free title on
September 23, 2020.
ISSUE AND STANDARD OF REVIEW
¶14 Pullman contends that she received constitutionally
ineffective assistance when Counsel did not (1) call Witness to
testify, (2) call Buyer and Wife as witnesses, and (3) present
evidence of the car’s title history showing that Father had sold the
car to Buyer after Pullman repossessed it. “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” Layton City v. Carr, 2014
UT App 227, ¶ 6, 336 P.3d 587 (cleaned up). And “in ruling on an
ineffective assistance of counsel claim following a rule 23B
20200279-CA 6 2023 UT App 28State v. Pullman
hearing, we defer to the trial court’s findings of fact.” State v. King,
2017 UT App 43, ¶ 13, 392 P.3d 997 (cleaned up).2
ANALYSIS
¶15 Pullman claims that Counsel was ineffective in not calling
several witnesses and for not moving to admit the car’s title
history as evidence. To establish ineffective assistance of counsel,
Pullman “must show that (1) [Counsel’s] performance was
deficient in that it fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the
defense.” See State v. Wright, 2021 UT App 7, ¶ 52, 481 P.3d 479(cleaned up), cert. denied, 496 P.3d 718 (Utah 2021).
I. Counsel’s Performance Was Deficient
¶16 The performance prong “entails certain basic duties” of
defense counsel. Strickland v. Washington, 466 U.S. 668, 688 (1984).
Among these is an “overarching duty to advocate the defendant’s
cause” by “bring[ing] to bear such skill and knowledge as will
render the trial a reliable adversarial testing process.” Id. To this
end, the “Sixth Amendment . . . relies . . . on the legal profession’s
maintenance of standards sufficient to justify the law’s
presumption that counsel will fulfill the [envisioned] role in the
adversary process.” Id. Thus, “[t]he proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.” Id.
2. On appeal, Pullman raises other ineffective assistance of
counsel claims based on various aspects of the proceedings below.
Pullman also contends that the district court improperly excluded
her testimony about certain out-of-court statements Father made.
Because we reverse Pullman’s convictions and remand for a new
trial based on the issues raised in her rule 23B motion, it is
unnecessary for us to address these additional claims.
20200279-CA 7 2023 UT App 28State v. Pullman
¶17 “[P]revailing professional norms,” see id., require defense
counsel to conduct a reasonable investigation, see State v. Crestani,
771 P.2d 1085 (Utah Ct. App. 1989). We have observed that “the
American Bar Association Standards for Criminal Justice”
maintain that a lawyer has a duty “to conduct a prompt
investigation of the circumstances of the case and to explore all
avenues leading to facts relevant to the merits of the case and the
penalty in the event of conviction.” Crestani, 771 P.2d at 1090(cleaned up); see also ABA, Criminal Justice Standards for the Defense
Function, Standard 4-4.1(a)–(c) (4th ed. 2017),
https://www.americanbar.org/groups/criminal_justice/standards
/DefenseFunctionFourthEdition/ [https://perma.cc/RUK8-TABY].
“An attorney has a duty to conduct a reasonable investigation into
the facts of [a] client’s case and to make reasonable decisions
regarding the proper scope of that investigation.” Honie v. State,
2014 UT 19, ¶ 36, 342 P.3d 182. “In determining whether counsel’s
investigation was reasonable, we consider not only the quantum
of evidence already known to counsel, but also whether the
known evidence would lead a reasonable attorney to investigate
further.” Taylor v. State, 2007 UT 12, ¶ 48, 156 P.3d 739 (cleaned
up). And “[t]hough trial counsel is not required to present all
evidence uncovered during the investigation of a client’s case, an
attorney is required to perform any investigation competently
and thoroughly.” Honie, 2014 UT 19, ¶ 36. But “if counsel does not
adequately investigate the underlying facts of a case, including
the availability of prospective defense witnesses, counsel’s
performance cannot fall within the wide range of reasonable
professional assistance.” State v. Templin, 805 P.2d 182, 188 (Utah
1990) (cleaned up).
¶18 Here, Pullman was charged with theft for “obtain[ing] or
exercis[ing] unauthorized control over the property of another
with a purpose to deprive” the rightful owner of that property.
See Utah Code § 76-6-404. Thus, crucial to Pullman’s defense was
her claim that Father had authorized her to retrieve the car on his
behalf. As the State itself acknowledged in closing, “[t]he biggest
20200279-CA 8 2023 UT App 28State v. Pullman
[issue] in the room” was “whether [Pullman] believed she had
authority to repossess this car, go take this car, or she didn’t.” The
State asserted, Father “never told her to act on his behalf. . . . He
was very clear that at no point did he ever tell her to go repossess
this car.”
¶19 Counsel was aware of Witness and even mentioned her
during the trial, but Counsel did not contact Witness to inquire
about her knowledge of Father’s request that Pullman repossess
the car. Had Counsel contacted Witness, he would have learned
that she could corroborate Pullman’s account and rebut Father’s
testimony. Given the significance of this testimony to Pullman’s
defense, Counsel acted unreasonably by not investigating
Witness and calling her at trial.
¶20 Similarly, Counsel acted deficiently by not contacting
Buyer to interview him about the circumstances surrounding his
purchase of the car from Father. Counsel was aware of Buyer, and
had Counsel interviewed him, Counsel would have learned the
identity of Wife, who could also testify that Pullman told her she
needed to ask Father about his interest in selling the car and that
Father ultimately agreed to sell the car to Buyer.
¶21 In much the same way, Counsel rendered deficient
performance in not investigating the car’s title history. Prior to
trial, Counsel knew that Father had given the title of the car to
Buyer when Father sold the car to him. It was unreasonable for
Counsel, upon learning of the sale to Buyer, not to obtain a copy
of the title. After all, the title would have supported Pullman’s
assertion—with official government documents no less—that she
acted at Father’s behest to retrieve the car by showing that Father
was the one who benefitted from Pullman repossessing the car.
Moreover, the title was readily available to Counsel via a request
to the Utah Department of Motor Vehicles. Thus, Counsel had a
duty to investigate this evidence, not only because he was aware
20200279-CA 9 2023 UT App 28State v. Pullman
of it, but also because it supported Pullman’s assertion that she
was authorized by Father to repossess the car.
¶22 Given the significance of these witnesses and the car’s title
history and the availability of both to Counsel, Counsel’s failure
to investigate or present either of them constituted deficient
performance. See Crestani, 771 P.2d at 1090.
II. Counsel’s Deficient Performance Prejudiced Pullman
¶23 “Counsel’s performance is prejudicial if the defendant can
demonstrate that there is a reasonable probability that the
outcome of his or her case would have been different absent
counsel’s error. Accordingly, the defendant must do more than
simply show that the errors had some conceivable effect on the
outcome of the proceeding.” State v. Wright, 2021 UT App 7, ¶ 54,
481 P.3d 479 (cleaned up), cert. denied, 496 P.3d 718 (Utah 2021).
¶24 Of particular importance in the prejudice analysis here is
that Pullman claims that Father gave her permission to repossess
the car. In fact, she testified that Father asked her to “pick up the
car for him” because Acquaintance “was not making payments”
and he “couldn’t [go] and get the car.” In contrast, Father testified
at trial that he never gave her permission to repossess the car.
Thus, a key issue at trial was “largely a credibility contest”
between Pullman and Father. See State v. J.A.L., 2011 UT 27, ¶ 41,
262 P.3d 1. Pullman “presented her version of the events,” and
Father “offered a different version.” See id. In this context,
testimony from additional witnesses and the title history “would
have affected the entire evidentiary picture” by tilting it in favor
of Pullman’s version over Father’s. See id.; see also State v. High,
2012 UT App 180, ¶ 50, 282 P.3d 1046 (stating that where
conviction is largely based on conflicting testimony, “witness
credibility [becomes] the cornerstone of the case”).
¶25 The missing testimony almost entirely favors Pullman’s
version of events about the car. Witness would have testified that
20200279-CA 10 2023 UT App 28State v. Pullman
Father had asked Pullman and others to repossess the car for him.
Buyer would have testified that Father sold the car to him even
after it had been reported stolen. And Wife would have testified
that Father communicated with her directly about buying the car.
Thus, all three witnesses would have offered testimony
supporting Pullman’s assertion that it was Father who authorized
the repossession of the car. Not only would Witness have given
specific testimony in this respect, but Buyer’s and Wife’s
testimonies would have lent support to Pullman’s account by
showing that Father knew about the repossession and ultimately
benefitted from it. And the title history also supports Pullman’s
account, albeit indirectly, by showing that Father sold the car to
Buyer after it was reported stolen. The missing witness testimony
and title history suggest Father authorized the repossession, knew
of the repossession, and was the sole beneficiary of the
repossession, thus making Father’s trial testimony that he did not
ask Pullman to repossess the car suspect. In light of the additional
evidence, it is reasonably likely that the jury would have
discounted Father’s testimony and acquitted Pullman of theft of
the car.
¶26 Additionally, it is reasonably likely that the jury would
have acquitted Pullman for theft of the items in the car had it
heard the testimonies of Witness, Wife, and Buyer. These
testimonies would have supported Pullman’s overall account and
increased her credibility. Although the witnesses could not
provide any relevant information about whether Pullman took
personal items from the car when she dropped it off, 3 we cannot
overlook that Pullman’s overall credibility would have been
3. Wife could testify that she found no items in the car when she
looked inside of it after she and Buyer became interested in
purchasing it, but there is no suggestion that she saw the inside of
the car when it was taken by Pullman or that she observed
Pullman’s actions (namely, whether she took any items from the
car) when Pullman dropped it off.
20200279-CA 11 2023 UT App 28State v. Pullman
strengthened by the corroboration these witnesses provided
regarding her repossession of the car. That is significant because
the jury’s assessment of the charge for theft of personal items
depended entirely on its assessment of Pullman’s and
Acquaintance’s respective credibility. Father’s testimony,
standing alone, may have made the jury doubt Pullman’s
testimony regarding the taking of the car and, by extension, the
alleged theft of the missing items. But if the jury believed Pullman
about the repossession after hearing the testimony of Witness,
Buyer, and Wife, it more likely would have believed her
testimony about the personal items. Thus, it is reasonably likely
that the jury would have acquitted Pullman of theft of the
personal items if the witnesses had testified.
¶27 In sum, we have no trouble concluding that Pullman was
prejudiced by Counsel’s failure to introduce the missing evidence.
With the witness testimonies and title history in hand, there is a
reasonable likelihood that the jury would have concluded that the
State had not met its burden of showing that Pullman exercised
“unauthorized control” over another’s property. See Utah Code
§ 76-6-404.
CONCLUSION
¶28 Having concluded that Pullman received ineffective
assistance when Counsel did not call key witnesses and failed to
investigate the car’s title history, we reverse Pullman’s
convictions and remand the matter for a new trial.
20200279-CA 12 2023 UT App 28