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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39534

STATE OF IDAHO,

Plaintiff-Respondent,

v.

THOMAS ZACHARY ALEC PAULK,

Defendant-Appellant.

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2013 Unpublished Opinion No. 664

Filed: September 10, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bonneville County. Hon. Dane H. Watkins, Jr., District Judge. 

Judgment of conviction, affirmed; order denying Idaho Criminal Rule 35 

motion, affirmed.

Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GRATTON, Judge

Thomas Zachary Alec Paulk appeals from the judgment of conviction entered upon the 

jury verdict finding him guilty of forcible sexual penetration by use of a foreign object, Idaho 

Code § 18-6608. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Paulk lived with his girlfriend, Ms. Orme, and her two-year-old daughter, L.B. On the 

evening at issue, Orme left the house to pick up dinner, leaving Paulk at home to watch L.B. 

Paulk allegedly became frustrated while changing L.B.’s diaper and placed his finger(s) in her 

vagina and pressed down with force, causing injury to L.B.’s vagina. Paulk called Orme and told 

her that L.B. was bleeding. Orme returned home and took L.B. to Mountain View Hospital 

Ready Care. During the initial examination, the intake nurse asked L.B., “[D]id you get an 

owie?” L.B. responded, “Zackie did it.”
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After being examined by a doctor, L.B. was sent to the hospital and surgery was 

performed to repair her injury. The doctor reported the incident to law enforcement, and police 

officers went to the home to interview Paulk. After telling police officers various stories of how 

the injury occurred, Paulk eventually admitted to placing his finger in L.B.’s vagina out of anger

and pushing down, causing the injury.

Following a jury trial, Paulk was convicted of forcible penetration by a foreign object. 

The district court imposed a unified term of fifteen years with five years determinate. Paulk filed 

an Idaho Criminal Rule 35 motion requesting a reduction in his sentence, which the district court 

denied. Paulk timely appeals.

II.

ANALYSIS

Paulk claims: (1) that the district court erred by admitting L.B.’s statement because the 

statement did not fit within any hearsay exception; (2) that the admittance of L.B.’s statement 

violated his right to confrontation; (3) that the district court abused its discretion by imposing an 

excessive sentence; and (4) that the district court abused its discretion in denying his Rule 35 

motion. 

A. Child’s Statement

We need not address the admission of L.B.’s statement under either the evidentiary rules 

or the Confrontation Clause because, even assuming the admission of L.B.’s statement was 

erroneous, any error was harmless. Error is not reversible unless it is prejudicial. State v. 

Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, 

even constitutional error is not necessarily prejudicial error. Id. Thus, we examine whether the 

alleged error complained of in the present case was harmless. See State v. Lopez, 141 Idaho 575, 

578, 114 P.3d 133, 136 (Ct. App. 2005). Where a defendant meets his or her initial burden of 

showing that a constitutional violation has occurred, the State has the burden of demonstrating to 

the appellate court beyond a reasonable doubt that the violation did not contribute to the jury’s 

verdict. State v. Perry, 150 Idaho 209, 227-28, 245 P.3d 961, 979-80 (2010). 

In the instant case, the evidence against Paulk was overwhelming. At trial, the detective 

who investigated the incident testified that Paulk repeatedly changed his story throughout the 

investigation. The detective testified that Paulk initially reported that L.B. fell down and hurt 

herself. Then Paulk changed his story and reported that his knee gave out while changing L.B.’s 
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diaper and as he was falling, his finger went inside L.B.’s vagina. Later, Paulk reported that after 

his knee buckled, L.B. started to slide off the bed and he grabbed her and inserted his finger 

inside her vagina as he pushed her back onto the bed. Finally, Paulk said that L.B. was hurt and 

crying but would not tell Paulk where she was hurt. Paulk then told a police officer that he 

became upset “[S]o he began pushing her down on the bed. And his fingers were going inside of 

her.” 

The doctor who examined and treated L.B. testified as to his medical conclusions. 

Specifically, he testified that:

[T]his type of injury is absolutely indicative of a penetrating trauma for the fact 

that there was no injury to any of the surrounding structures, and the injury

extended so far up into the vagina that there was nothing but a penetration that 

could have caused that kind of extension into the vagina. And just from the 

tearing, something had to be penetrated with a lot of force. There had to be quite 

an exertion of force placed on whatever was penetrated into the vagina.

Further, the doctor testified that Paulk’s initial stories could not have resulted in L.B.’s injuries. 

First, the doctor testified that the injury could not have been an accidental fall because L.B. did 

not have injuries to the surrounding tissue or structure. Second, the doctor testified that it was 

illogical to conclude that L.B.’s injury resulted from Paulk accidentally falling and inserting his 

hand in L.B.’s vagina. Third, the doctor testified that the injury could not have resulted from 

Paulk catching L.B. as she slid off the bed because L.B. did not weigh enough to exert the 

amount of force required for such an extensive injury. However, the doctor did testify that the 

injury could have resulted from Paulk inserting his fingers inside L.B.’s vagina and pushing 

down out of anger. 

The pediatric forensic nurse’s testimony concurred with the doctor’s testimony and 

indicated that Paulk’s admission of inserting his fingers in L.B.’s vagina and pushing down out 

of anger was the only possible explanation based on the location and severity of the injury. 

Moreover, the testimonies of a pediatrician and a professor of pediatrics were also consistent 

with the doctor’s testimony. Additionally, testimony was presented indicating that the only 

individuals present at the home when L.B.’s injury occurred was Paulk, L.B., L.B.’s five-yearold sister, and an infant.

Based on the foregoing, we conclude that L.B.’s statement did not contribute to the jury’s 

verdict. Paulk’s own admission that he inserted his fingers in L.B.’s vagina and pushed down, 
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combined with the testimonies of medical experts corroborating this version of the events, 

overwhelmingly established evidence of Paulk’s guilt. Therefore, the jury would have reached 

the same verdict, beyond a reasonable doubt, even absent L.B.’s statement. Accordingly, any 

error resulting from the admission of the statement was harmless.

B. Excessive Sentence

Paulk claims that the district court imposed an excessively harsh sentence “in light of the 

numerous mitigating circumstances present in his case, including his remorse, mental health 

issues, history of traumatic brain injury, family support, and lack of any prior felony 

convictions.”1 An appellate review of a sentence is based on an abuse of discretion standard. 

State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not 

illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of 

discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may 

represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. 

State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is 

reasonable if it appears at the time of sentencing that confinement is necessary “to accomplish 

the primary objective of protecting society and to achieve any or all of the related goals of 

deterrence, rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 

565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing 

court imposed an excessively harsh sentence, we conduct an independent review of the record, 

having regard for the nature of the offense, the character of the offender, and the protection of 

the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). 

When reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. 

Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). 

Here, Paulk points to several mitigating factors to support his claim. Paulk asserts that he 

suffers from “a psychological disorder, Alexithymia, resulting from traumatic brain injury that 

 

1 Paulk was originally convicted of lewd conduct and forcible penetration with a foreign 

object. The district court imposed a unified term of fifteen years with five years determinate for 

each conviction. However, the State filed a motion to dismiss the lewd conduct charge after a 

polygraph examination indicated that Paulk did not commit the act for the purpose of sexual 

gratification and the district court granted the motion. The district court vacated the sentences 

and resentenced Paulk to a unified term of fifteen years with five years determinate for the 

forcible penetration conviction. 
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prevents him from adequately showing his emotions,” including his remorse. He also asserts that 

he has strong family support and has had no prior felonies. Additionally, Paulk points to the 

remorse he demonstrated and was noted in the presentence investigation report (PSI). Our 

review of the record indicates that the district court took careful consideration of the mitigating 

factors as well as the objectives of sentencing. The court also considered the violent nature of 

the crime and recalled that the injury was “among the worst” the hospital had seen, as Paulk’s 

action created a laceration from L.B.’s vagina to nearly her anal opening. The court was also 

concerned with Paulk’s description of the crime as an “accident,” rather than admitting that it 

was a violent, willful act. After considering the factors, the court stated that it “imposed a 

sentence that it believed accounted for those mitigating factors.” The court also noted that the 

sentence was less than the maximum sentence and less than the State’s recommended sentence. 

Based on the foregoing, we conclude that the district court did not abuse its discretion by

imposing Paulk’s sentence. 

C. Rule 35 Motion

Paulk claims that new evidence, accompanied with the mitigating factors discussed 

above, demonstrates that his underlying sentence is excessive. A motion for reduction of 

sentence under I.C.R. 35 is essentially a plea for leniency, addressed to the sound discretion of 

the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006); State v. Gill, 150 Idaho 

183, 186, 244 P.3d 1269, 1272 (Ct. App. 2010). In presenting a Rule 35 motion, the defendant 

must show that the sentence is excessive in light of new or additional information subsequently 

provided to the district court in support of the motion. State v. Huffman, 144 Idaho 201, 203, 

159 P.3d 838, 840 (2007). In conducting our review of the grant or denial of a Rule 35 motion, 

we consider the entire record and apply the same criteria used for determining the reasonableness 

of the original sentence. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State 

v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984). 

At the hearing on the Rule 35 motion, defense counsel informed the district court that 

Paulk was not present because he was incarcerated with the Department of Correction in Boise. 

Defense counsel also informed the court that Paulk had been threatened and attacked while 

incarcerated. Defense counsel then proceeded to argue the Rule 35 motion, arguing that Paulk’s 

sentence should be reduced because his treatment while incarcerated would focus on treatment 

for sexual deviancy, rather than treatment for his anger problems. The district court denied the 
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motion, finding, among other things, that Paulk did commit a sexually-abusive crime and would 

have to participate in sex offender treatment. 

On appeal, Paulk argues that defense counsel’s notification to the district court that Paulk 

was receiving threats and was attacked while incarcerated constitutes new evidence presented to 

the district court in support of his Rule 35 motion. However, this information was presented 

only by representations of counsel and not through any admissible evidence. Our reading of the 

transcript indicates that defense counsel was informing the court of the threats and attack for the 

purpose of the record and not as argument for the Rule 35 motion. In fact, immediately after 

commenting about the attack, defense counsel stated, “We do not have new evidence to present 

to the Court. I will let the Court know that up front.” Additionally, after reviewing the record, 

we conclude that the district court properly considered defense counsel’s argument and 

determined that the sentence was a “fair sentence that accounts for those very things that the 

defense argues today.” Accordingly, we cannot say that the district court abused its discretion in 

denying Paulk’s Rule 35 motion.

III.

CONCLUSION

Paulk has failed to demonstrate reversible error relative to L.B.’s statement. 

Additionally, we conclude that the district court did not abuse its discretion by imposing Paulk’s 

sentence or by denying his Rule 35 motion. Accordingly, Paulk’s judgment of conviction and 

the district court’s order denying his Rule 35 motion are affirmed. 

Chief Judge GUTIERREZ and Judge LANSING CONCUR.