Background
The Utah Court of Appeals affirmed Brandon Mayhew Hillman’s convictions for two counts of aggravated sexual abuse of a child and his mandatory life-without-parole sentence. The charges arose from the abuse of an eleven-year-old boy in 2021. Hillman’s prior child-sex-abuse convictions made the current offenses aggravated and triggered Utah Code section 76-5-404.3(3)(c), which requires life without parole when the defendant has previously been convicted of a grievous sexual offense.
At trial, the State introduced evidence under rule 404(c) of the Utah Rules of Evidence concerning Hillman’s earlier abuse, including plea statements and testimony from a prior victim. The jury convicted Hillman after the first phase. In a later bench phase, the district court found the prior-conviction aggravating element; it subsequently found the sentencing enhancement and imposed life without parole on both counts. On appeal, Hillman asserted several ineffective-assistance claims. He also argued that the mandatory sentence, as applied to him, violated Article I, Section 9 of the Utah Constitution.
The Court’s Holding
Judge Gregory K. Orme, writing for a unanimous panel, rejected each ineffective-assistance theory. The court agreed that the prosecutor made improper closing statements by invoking the “wake of pain” caused to victims and telling jurors their verdict would show the child that they believed and would protect him. The panel cautioned prosecutors that they serve as ministers of justice and may not appeal to jurors’ sympathy or ask them to act as a victim’s partisan. But Hillman did not establish prejudice because the evidence was strong, including the child’s account, Hillman’s unusual call the next morning, the child’s changed behavior, and similar prior misconduct.
The same lack of prejudice defeated the claim concerning two photographs of the child shown to the jury. The court also held that counsel could not reasonably have anticipated a prior victim’s emotional reaction when he read names from a plea statement, and that declining to redact the degree of Hillman’s earlier offenses fit the defense strategy of acknowledging those convictions and discussing rehabilitation. Considering the assumed errors together did not undermine confidence in the verdict.
The panel recognized that a jury, not a judge, should have decided the aggravating prior-conviction element of the charged offenses. Even so, Hillman could not show a reasonable probability of a different result: the only proof on that element consisted of the plea statements and certified judgments, and the prior convictions were undisputed. Finally, the court rejected Hillman’s state constitutional challenge to mandatory life without parole. Applying its earlier decision in State v. Garcia, the panel treated aggravated sexual abuse of a child as among the gravest offenses recognized by Utah law and declined to rank the particular conduct underlying two convictions for the same statutory crime. Given Hillman’s prior qualifying convictions, the sentence was not so cruelly inhumane or disproportionate that it violated Utah’s constitution.
Key Takeaways
- Improper victim-sympathy arguments remain serious prosecutorial misconduct, but an ineffective-assistance claim still requires a reasonable probability that an objection would have changed the verdict.
- An aggravating fact that is an element of a Utah offense belongs to the jury, although undisputed documentary proof may prevent a defendant from showing prejudice when a judge decides it instead.
- Under the court’s existing precedent, Utah’s mandatory life-without-parole penalty for aggravated sexual abuse of a child after a qualifying prior conviction survives an as-applied state constitutional challenge.
Why It Matters
Hillman is a practical reminder for Utah trial lawyers to separate error from prejudice. The opinion expressly disapproved of the prosecutor’s closing remarks and recognized a jury-allocation problem, yet affirmed because the record did not support a different outcome. Defense counsel should preserve both issues in real time, including objections to appeals for sympathy and requests that every statutory element be submitted to the jury.
For prosecutors, the decision is not permission to use protect-the-victim rhetoric: the panel emphasized that a different evidentiary record could produce a different prejudice analysis. For appellate practitioners, Hillman confirms that challenges under Utah’s cruel-and-unusual-punishment clause remain constrained by Garcia where the offense and recidivist enhancement materially match that precedent.