unanimity instruction in Utah

2025Allowing the jury to do so without a specific unanimity instruction “effectively lower[s] the State’s burden of proof.” See Baugh, 2024 UT 33, ¶ 40 ; accord Alires, 2019 UT App 206, ¶ 25 .

2024In State v. Alires, 2019 UT App 206 , 455 P.3d 636 , cert. denied, 466 P.3d 1076 (Utah 2020), this court also considered the State’s closing argument telling the jury it could convict the defendant on four counts of aggravated sexual abuse of a child “based on any of the six alleged touches of the [victim] in ‘any combination,’” id. ¶ 22, when it held that “[b]y failing to require juror unanimity as to each underlying act, the instructions—coupled with the prosecutor’s closing argument—effectively lowered the State’s (continued…) 20190593-CA 20 2024 UT App 1 State v. Granere convictions, Couns

2024I, § 10. 22 Hummel, 2017 UT 19, ¶ 27 , 393 P.3d 314 (cleaned up). 23 Id. ¶ 28 (cleaned up). 24 Saunders, 1999 UT 59, ¶ 60 (plurality opinion). 7 STATE v. BAUGH Opinion of the Court clear how that unanimity requirement must be conveyed to the jury in multiple-act cases like Baugh’s, where a defendant is charged with multiple counts of a crime with identical elements. 25 ¶25 In Saunders, the defendant was charged with one count of sexual abuse of a child. 26 The prosecution presented evidence of several acts, any one of which could satisfy the touching element of the charge.27 The unanimity inst

2024I, § 10. 22 Hummel, 2017 UT 19, ¶ 27 , 393 P.3d 314 (cleaned up). 23 Id. ¶ 28 (cleaned up). 24 Saunders, 1999 UT 59, ¶ 60 (plurality opinion). 7 STATE v. BAUGH Opinion of the Court clear how that unanimity requirement must be conveyed to the jury in multiple-act cases like Baugh’s, where a defendant is charged with multiple counts of a crime with identical elements. 25 ¶25 In Saunders, the defendant was charged with one count of sexual abuse of a child. 26 The prosecution presented evidence of several acts, any one of which could satisfy the touching element of the charge.27 The unanimity inst

2025Medina must also show that he was prejudiced because “there existed a reasonable probability of a different outcome had the jury been provided a specific unanimity instruction.” State v. Mottaghian, 2022 UT App 8, ¶ 59 , 504 P.3d 773 .

2025Medina must also show that he was prejudiced because “there existed a reasonable probability of a different outcome had the jury been provided a specific unanimity instruction.” State v. Mottaghian, 2022 UT App 8, ¶ 59 , 504 P.3d 773 .

2025We held that prejudice had not been 20220662-CA 27 2025 UT App 76 State v. Jimenez established because, on the facts of that case, there were “enough uncontested . . . touches to satisfy all of the charged counts, and there [was] no meaningful consent-related basis to distinguish between those touches.” Id. ¶61 Similarly, in State v. Case, 2020 UT App 81 , 467 P.3d 893 , we concluded that the defendant was not prejudiced by the absence of a specific unanimity instruction because the acts in question were similar and there was no principled basis to distinguish between them from an evidentiary

2025We held that prejudice had not been 20220662-CA 27 2025 UT App 76 State v. Jimenez established because, on the facts of that case, there were “enough uncontested . . . touches to satisfy all of the charged counts, and there [was] no meaningful consent-related basis to distinguish between those touches.” Id. ¶61 Similarly, in State v. Case, 2020 UT App 81 , 467 P.3d 893 , we concluded that the defendant was not prejudiced by the absence of a specific unanimity instruction because the acts in question were similar and there was no principled basis to distinguish between them from an evidentiary

2025See, e.g., State v. Mendoza, 2021 UT App 79 , ¶¶ 8–17, 496 P.3d 275 ; State v. Gollaher, 2020 UT App 131 , ¶¶ 30–33, 474 P.3d 1018 , cert. denied, 481 P.3d 1040 (Utah 2021); State v. Whytock, 2020 UT App 107 , ¶¶ 30–32, 469 P.3d 1150 , cert. denied, 481 P.3d 1043 (Utah 2021); State v. Case, 2020 UT App 81 , ¶¶ 21–23, 467 P.3d 893 , cert. denied, 474 P.3d 948 (Utah 2020); State v. Alires, 2019 UT App 206 , ¶¶ 17–22, 455 P.3d 636 , cert. denied, 466 P.3d 1076 (Utah 2020).

2025See, e.g., State v. Mendoza, 2021 UT App 79 , ¶¶ 8–17, 496 P.3d 275 ; State v. Gollaher, 2020 UT App 131 , ¶¶ 30–33, 474 P.3d 1018 , cert. denied, 481 P.3d 1040 (Utah 2021); State v. Whytock, 2020 UT App 107 , ¶¶ 30–32, 469 P.3d 1150 , cert. denied, 481 P.3d 1043 (Utah 2021); State v. Case, 2020 UT App 81 , ¶¶ 21–23, 467 P.3d 893 , cert. denied, 474 P.3d 948 (Utah 2020); State v. Alires, 2019 UT App 206 , ¶¶ 17–22, 455 P.3d 636 , cert. denied, 466 P.3d 1076 (Utah 2020).

2025B ¶39 The issue presented here, then, is whether Counsel’s failure to ask for a specific unanimity instruction constituted ineffective assistance. ¶40 To succeed on an ineffective assistance claim, Jimenez must make a two-part showing: (1) that Counsel’s performance was deficient in that it “fell below an objective standard of reasonableness” and (2) that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for [C]ounsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668

2025Failure to prove either component is fatal; “[u]nless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687 . 1 ¶41 We first address whether Counsel performed deficiently by not requesting a specific unanimity instruction.

2026See also State v. Baugh, 2024 UT 33, ¶ 42 , 556 P.3d 35 (applying the Strickland prejudice standard to an ineffective assistance claim challenging a lack of a specific unanimity instruction); State v. Bond, 2015 UT 88, ¶¶ 43 , 46–47, 361 P.3d 104 (stating that “even federal constitutional errors so serious as to be deemed structural are subject to preservation requirements” and a “harmlessness analysis”).

2026See also State v. Baugh, 2024 UT 33, ¶ 42 , 556 P.3d 35 (applying the Strickland prejudice standard to an ineffective assistance claim challenging a lack of a specific unanimity instruction); State v. Bond, 2015 UT 88, ¶¶ 43 , 46–47, 361 P.3d 104 (stating that “even federal constitutional errors so serious as to be deemed structural are subject to preservation requirements” and a “harmlessness analysis”).

2022Accordingly, if the law was well enough established at the time Alires was tried, such that the Alires court could determine that counsel there performed deficiently in failing to request a proper unanimity instruction, the law was also well enough established that defense counsel here should have recognized the need to request appropriate unanimity instructions. 20200178-CA 9 2022 UT App 3 State v. Baugh “Once the State failed to elect which act supported each charge, the jury should have been instructed to agree on a specific criminal act for each charge in order to convict,” id., but counse

2022Accordingly, if the law was well enough established at the time Alires was tried, such that the Alires court could determine that counsel there performed deficiently in failing to request a proper unanimity instruction, the law was also well enough established that defense counsel here should have recognized the need to request appropriate unanimity instructions. 20200178-CA 9 2022 UT App 3 State v. Baugh “Once the State failed to elect which act supported each charge, the jury should have been instructed to agree on a specific criminal act for each charge in order to convict,” id., but counse

2026But in Hummel, the supreme court held that “theories” are the analytical equivalent of “methods, modes, or manners of committing a crime,” none of which are subject to the unanimity requirement. 2017 UT 19, ¶ 57 (quotation simplified). ¶50 We also note that in Gonzales, we held that accomplice liability is not “a separate offense from principal liability” for purposes of the constitutional right to notice of pending charges. 2002 UT App 256, ¶ 12 .

2024He argued that his counsel provided ineffective assistance in failing to request more specific unanimity instructions. ¶13 Article I, section 10 of the Utah Constitution contains the Unanimous Verdict Clause, which reads, “In criminal cases the verdict shall be unanimous.” To render a valid verdict under that clause, the jury must be unanimous on all elements of the charged crime. 3 Jury instructions must adequately convey this unanimity requirement to the jury. 4 __________________________________________________________ 3 State v. Hummel, 2017 UT 19, ¶ 29 , 393 P.3d 314 . 4 See Meeks v. Peng

2025See State v. Percival, 2020 UT App 75, ¶ 29 , 464 P.3d 1184 (holding that there was “no reasonable likelihood that the jury would not have agreed on any one victim” having been stabbed when the evidence “overwhelmingly established” that three people were stabbed during a fracas and only the defendant was “wielding a knife”). 20220789-CA 18 2025 UT App 99 State v. Medina ¶50 Medina argues that he was prejudiced by Counsel not requesting a unanimity instruction because the State alleged several specific acts of obstruction.

2025See State v. Percival, 2020 UT App 75, ¶ 29 , 464 P.3d 1184 (holding that there was “no reasonable likelihood that the jury would not have agreed on any one victim” having been stabbed when the evidence “overwhelmingly established” that three people were stabbed during a fracas and only the defendant was “wielding a knife”). 20220789-CA 18 2025 UT App 99 State v. Medina ¶50 Medina argues that he was prejudiced by Counsel not requesting a unanimity instruction because the State alleged several specific acts of obstruction.

2025See State v. Chadwick, 2024 UT 34, ¶ 57 , 554 P.3d 1098 .

2024I, § 10. 22 Hummel, 2017 UT 19, ¶ 27 , 393 P.3d 314 (cleaned up). 23 Id. ¶ 28 (cleaned up). 24 Saunders, 1999 UT 59, ¶ 60 (plurality opinion). 7 STATE v. BAUGH Opinion of the Court clear how that unanimity requirement must be conveyed to the jury in multiple-act cases like Baugh’s, where a defendant is charged with multiple counts of a crime with identical elements. 25 ¶25 In Saunders, the defendant was charged with one count of sexual abuse of a child. 26 The prosecution presented evidence of several acts, any one of which could satisfy the touching element of the charge.27 The unanimity inst

2025Accordingly, “if the court refuses to provide such an instruction in those circumstances, the refusal constitutes an error of law,” which ultimately “constitutes an abuse of discretion.” Johnson, 2025 UT App 13, ¶ 24 (quotation simplified). ¶42 Lastly, Farmer claims that Counsel rendered ineffective assistance in two respects: (1) when he did not raise a rule 804(b)(3) motion for a third time after the crime scene investigator offered testimony that corroborated both the written statement and the verbal statement and (2) when he did not request a unanimity instruction specifically for the obst

2025Accordingly, “if the court refuses to provide such an instruction in those circumstances, the refusal constitutes an error of law,” which ultimately “constitutes an abuse of discretion.” Johnson, 2025 UT App 13, ¶ 24 (quotation simplified). ¶42 Lastly, Farmer claims that Counsel rendered ineffective assistance in two respects: (1) when he did not raise a rule 804(b)(3) motion for a third time after the crime scene investigator offered testimony that corroborated both the written statement and the verbal statement and (2) when he did not request a unanimity instruction specifically for the obst

2025B ¶39 The issue presented here, then, is whether Counsel’s failure to ask for a specific unanimity instruction constituted ineffective assistance. ¶40 To succeed on an ineffective assistance claim, Jimenez must make a two-part showing: (1) that Counsel’s performance was deficient in that it “fell below an objective standard of reasonableness” and (2) that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for [C]ounsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668

2025B ¶39 The issue presented here, then, is whether Counsel’s failure to ask for a specific unanimity instruction constituted ineffective assistance. ¶40 To succeed on an ineffective assistance claim, Jimenez must make a two-part showing: (1) that Counsel’s performance was deficient in that it “fell below an objective standard of reasonableness” and (2) that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for [C]ounsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668

2025Accordingly, Jimenez has carried his burden of demonstrating that Counsel rendered deficient performance. 2 ¶57 Having concluded that Counsel’s failure to request a specific unanimity instruction constituted deficient performance, the final question is whether that deficiency prejudiced Jimenez. ¶58 “Prejudice exists when there is a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently.” State v. Whytock, 2020 UT App 107 , 20220662-CA 26 2025 UT App 76 State v. Jimenez ¶ 28, 469 P.3d 1150 . “[A] reasonable probability is a probabili

2025Accordingly, Jimenez has carried his burden of demonstrating that Counsel rendered deficient performance. 2 ¶57 Having concluded that Counsel’s failure to request a specific unanimity instruction constituted deficient performance, the final question is whether that deficiency prejudiced Jimenez. ¶58 “Prejudice exists when there is a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently.” State v. Whytock, 2020 UT App 107 , 20220662-CA 26 2025 UT App 76 State v. Jimenez ¶ 28, 469 P.3d 1150 . “[A] reasonable probability is a probabili

2025See State v. Paule, 2024 UT 2, ¶¶ 68, 78 , 554 P.3d 844 .

2024They nonetheless support our conclusion in that they confirmed the court of appeals’ implication that if the State had elected an act to support each charge, specific unanimity instructions would not be required. 114 2022 UT App 101, ¶ 39 , 517 P.3d 424 (quoting Alires, 2019 UT App 206, ¶ 22 ), cert. granted, 525 P.3d 1263 (Utah 2022). 115 2022 UT App 8, ¶ 58 , 504 P.3d 773 (quoting Alires, 2019 UT App 206, ¶ 22 ), cert. denied, 525 P.3d 1256 (Utah 2022). 27 STATE v. PAULE Cite as 2024 UT 2 conclude that Paule has not “overcome the ‘strong presumption’ that his counsel exercised reasonable pro

2024See, e.g., State v. Garcia-Lorenzo, 2022 UT App 101, ¶ 40 , 517 P.3d 424 , cert. granted, 525 P.3d 1263 (Utah 2022); Baugh, 2022 UT App 3, ¶ 19 ; Alires, 2019 UT App 206 , ¶¶ 24–25. 17 Thus, as to those two 16F 17.

2022But even if it did, defense counsel still performed deficiently by not requesting a specific unanimity instruction. ¶40 Thus, Alires is materially indistinguishable from this case and—unless and until we disavow it, or our supreme court tells 20200369-CA 17 2022 UT App 101 State v. Garcia-Lorenzo us otherwise—it controls the outcome here.

2026Deficient Performance ¶58 A line of recent Utah cases “stand[s] for the proposition that when the State presents evidence that a defendant has committed more criminal acts than the number of charged counts, a jury unanimity concern may be present and an attorney may perform deficiently by not asking for a specific unanimity instruction.” State v. Jimenez, 2025 UT App 76, ¶ 42 , 571 P.3d 834 (citing cases), cert. denied, 581 P.3d 560 (Utah 2025).

2025“Where the evidence indicates that more than one distinct criminal act has been committed but the defendant is charged with only one count of criminal conduct . . . the jury must be unanimous as to which act or incident constitutes the charged crime.” State v. Jiminez, 2025 UT App 76, ¶ 34 (cleaned up). ¶49 Here, even assuming, without deciding, that Counsel performed deficiently by not requesting a unanimity instruction for the obstructing justice charge, deficient performance alone does not amount to ineffective assistance.

2025See State v. Percival, 2020 UT App 75, ¶ 29 , 464 P.3d 1184 (holding that there was “no reasonable likelihood that the jury would not have agreed on any one victim” having been stabbed when the evidence “overwhelmingly established” that three people were stabbed during a fracas and only the defendant was “wielding a knife”). 20220789-CA 18 2025 UT App 99 State v. Medina ¶50 Medina argues that he was prejudiced by Counsel not requesting a unanimity instruction because the State alleged several specific acts of obstruction.

2025And on appeal, Medina does not dispute that he lied to the police. ¶52 On this evidence, we conclude that Medina has not demonstrated a reasonable likelihood of a different result at trial if the jury had been given a unanimity instruction. “[T]he jury would have had no difficulty in unanimously agreeing” that 20220789-CA 19 2025 UT App 99 State v. Medina Medina’s lies to the police supported the obstructing justice charge.

2026See State v. Navarrete, 2025 UT App 151, ¶ 32 , 580 P.3d 379 (determining that MUJI 2d CR432 “should have been given” where an act of abuse labeled “the broom incident” included “two different touchings, one upstairs in the living room and the other downstairs”). 2.

2025This model instruction—as well as Instruction 30, which was patterned after the model instruction—instructs jurors that they cannot convict unless they “unanimously agree that the prosecution has proven that [the defendant] committed [the crime] in at least one of those specific ways AND [they] unanimously agree on the specific way in which the defendant committed the offense.” Id.

2025See State v. Amboh, 2023 UT App 150, ¶ 34 , 541 P.3d 299 (holding that because strong evidence supported a defendant’s conviction, it was unlikely that the defendant “would have received a more favorable outcome at trial if the jury had been properly instructed on unanimity”). ¶53 Accordingly, even assuming that Counsel performed deficiently by not requesting a unanimity instruction, Medina has failed to show that he was prejudiced.

2025See State v. Amboh, 2023 UT App 150, ¶ 34 , 541 P.3d 299 (holding that because strong evidence supported a defendant’s conviction, it was unlikely that the defendant “would have received a more favorable outcome at trial if the jury had been properly instructed on unanimity”). ¶53 Accordingly, even assuming that Counsel performed deficiently by not requesting a unanimity instruction, Medina has failed to show that he was prejudiced.

2024Although the State may alleviate the prejudice caused by insufficient unanimity instructions by providing such guidance “in closing argument or elsewhere,” see id. ¶ 49, it must do so by “clearly identif[ying] for the jury which factual circumstance formed the basis for [the] charge,” State v. Paule, 2021 UT App 120, ¶ 48 , 502 P.3d 1217 (emphasis added), aff’d, 2024 UT 2 .

2022See State v. Baugh, 2022 UT App 3 , ¶ 14 n.3 (stating that, even though Alires was not published “until a few days after” the relevant trial, “if the law was well enough established at the time Alires was tried, such that the Alires court could determine that counsel there performed deficiently in failing to request a proper unanimity instruction, the law was also well enough established that defense counsel here should have recognized the need to request appropriate unanimity instructions”). 20200199-CA 28 2022 UT App 8 State v. Mottaghian also State v. Santos-Vega, 321 P.3d 1, 18 (Kan. 2014)

2024In State v. Alires, 2019 UT App 206 , 455 P.3d 636 , cert. denied, 466 P.3d 1076 (Utah 2020), this court also considered the State’s closing argument telling the jury it could convict the defendant on four counts of aggravated sexual abuse of a child “based on any of the six alleged touches of the [victim] in ‘any combination,’” id. ¶ 22, when it held that “[b]y failing to require juror unanimity as to each underlying act, the instructions—coupled with the prosecutor’s closing argument—effectively lowered the State’s (continued…) 20190593-CA 20 2024 UT App 1 State v. Granere convictions, Couns

2024“And this court has repeatedly held that failure to request a proper unanimity instruction constitutes deficient performance.” Granere, 2024 UT App 1, ¶ 38 .

2024See State v. McNeil, 2016 UT 3, ¶ 29 , 365 P.3d 699 (“[T]he prejudice test is the same whether under the claim of ineffective assistance or plain error.”). 20190593-CA 15 2024 UT App 1 State v. Granere for a conviction to stand.” Hummel, 2017 UT 19 , ¶¶ 28–30 (quotation simplified).

2024See State v. McNeil, 2016 UT 3, ¶ 29 , 365 P.3d 699 (“[T]he prejudice test is the same whether under the claim of ineffective assistance or plain error.”). 20190593-CA 15 2024 UT App 1 State v. Granere for a conviction to stand.” Hummel, 2017 UT 19 , ¶¶ 28–30 (quotation simplified).