general unanimity instruction in Utah

2026The charged offense was committed either by that person or another person. ¶27 Instruction 35 stated, Prior knowledge that a crime is about to be committed or is being committed does not make a person a party to the offense, and thereby subject them to criminal prosecution[,] unless that person has the mental state required to commit the crime, 20230735-CA, 20230760-CA, 20240282-CA 11 2026 UT App 30 State v. Mancia he solicits, requests, commands, encourages, or intentionally aids in the perpetration of the crime, and the crime is committed. ¶28 The jury instructions also included a general un

2026The charged offense was committed either by that person or another person. ¶27 Instruction 35 stated, Prior knowledge that a crime is about to be committed or is being committed does not make a person a party to the offense, and thereby subject them to criminal prosecution[,] unless that person has the mental state required to commit the crime, 20230735-CA, 20230760-CA, 20240282-CA 11 2026 UT App 30 State v. Mancia he solicits, requests, commands, encourages, or intentionally aids in the perpetration of the crime, and the crime is committed. ¶28 The jury instructions also included a general un

2022In particular, the State does not ask us to disavow Alires’s first holding—that “[w]here neither the charges nor the elements instructions link each count to a particular act,” a general unanimity instruction is not enough, and that “instructing the jury that it must agree as to which criminal acts occurred is critical to ensuring unanimity on each element of each crime.” See Alires, 2019 UT App 206, ¶ 23 .

2021We urge the Advisory Committee on (continued…) 20200555-CA 20 2021 UT App 120 State v. Paule (en banc) (quotation simplified), quoted with approval in Alires, 2019 UT App 206, ¶ 22 .

2026A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Bonds, 2023 UT 1 , ¶ 53, 524 P.3d 581 (quotation simplified). ¶55 In Fitzwater’s view, the general unanimity instruction was defective because it failed to inform jurors “what it meant to actually render a unanimous verdict,” meaning that they were 20220451-CA 20 2026 UT App 10 State v. Fitzwater “required to be unanimous as to each element of each count.” We disagree. ¶56 “When reviewing jury instructions, we look at the jury instructions in their entirety and will affirm when the instructio

2026A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Bonds, 2023 UT 1 , ¶ 53, 524 P.3d 581 (quotation simplified). ¶55 In Fitzwater’s view, the general unanimity instruction was defective because it failed to inform jurors “what it meant to actually render a unanimous verdict,” meaning that they were 20220451-CA 20 2026 UT App 10 State v. Fitzwater “required to be unanimous as to each element of each count.” We disagree. ¶56 “When reviewing jury instructions, we look at the jury instructions in their entirety and will affirm when the instructio

2026A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Bonds, 2023 UT 1 , ¶ 53, 524 P.3d 581 (quotation simplified). ¶55 In Fitzwater’s view, the general unanimity instruction was defective because it failed to inform jurors “what it meant to actually render a unanimous verdict,” meaning that they were 20220451-CA 20 2026 UT App 10 State v. Fitzwater “required to be unanimous as to each element of each count.” We disagree. ¶56 “When reviewing jury instructions, we look at the jury instructions in their entirety and will affirm when the instructio

2026A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Bonds, 2023 UT 1 , ¶ 53, 524 P.3d 581 (quotation simplified). ¶55 In Fitzwater’s view, the general unanimity instruction was defective because it failed to inform jurors “what it meant to actually render a unanimous verdict,” meaning that they were 20220451-CA 20 2026 UT App 10 State v. Fitzwater “required to be unanimous as to each element of each count.” We disagree. ¶56 “When reviewing jury instructions, we look at the jury instructions in their entirety and will affirm when the instructio

2026General Unanimity Instruction ¶53 Fitzwater next argues that he received ineffective assistance because Counsel did not object to certain alleged defects in the general unanimity instruction. ¶54 To prevail on an ineffective assistance claim, Fitzwater must show (1) that Counsel’s “performance was deficient and (2) that the deficient performance prejudiced the defense.” State v. Meik, 2024 UT App 46, ¶ 31 , 547 P.3d 878 (quotation simplified), cert. denied, 554 P.3d 923 (Utah 2024).

2026General Unanimity Instruction ¶53 Fitzwater next argues that he received ineffective assistance because Counsel did not object to certain alleged defects in the general unanimity instruction. ¶54 To prevail on an ineffective assistance claim, Fitzwater must show (1) that Counsel’s “performance was deficient and (2) that the deficient performance prejudiced the defense.” State v. Meik, 2024 UT App 46, ¶ 31 , 547 P.3d 878 (quotation simplified), cert. denied, 554 P.3d 923 (Utah 2024).

2021We urge the Advisory Committee on (continued…) 20200555-CA 20 2021 UT App 120 State v. Paule (en banc) (quotation simplified), quoted with approval in Alires, 2019 UT App 206, ¶ 22 .

2021This harmfulness test is equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel.” (quotation simplified)). ¶21 At the outset of our analysis, we note that in the final jury instructions, given just before deliberations, the district court gave a general unanimity instruction, explaining, “Because this is a criminal case, every single juror must agree with the verdict before the defendant can be found guilty or not guilty.” The court also instructed the jury that it must consider each charge separately and further clarified, “Your verdict on one charge

1987The word "you" in the last paragraph of the instruction rather clearly refers to the jurors collectively, as is apparent from the following language (in addition to other similar language): "... you must find the defendant not guilty ... and you may then consider the lesser included offense... ." Since the rule is that the jury is presumed to have followed the instructions given, I conclude that the jury did act unanimously with respect to each element of the offense, including the aggravating circumstances. [1] See State v. Rasmussen, 92 Utah 357 , 68 P.2d 176 (1937).

1987The word "you" in the last paragraph of the instruction rather clearly refers to the jurors collectively, as is apparent from the following language (in addition to other similar language): "... you must find the defendant not guilty ... and you may then consider the lesser included offense... ." Since the rule is that the jury is presumed to have followed the instructions given, I conclude that the jury did act unanimously with respect to each element of the offense, including the aggravating circumstances. [1] See State v. Rasmussen, 92 Utah 357 , 68 P.2d 176 (1937).