State v. Baugh
State v. Baugh, 2022 UT App 3 (Mortensen, J., majority; Christiansen Forster, J., concurring; Pohlman, J., concurring)
Defendant was charged with two counts of aggravated sexual abuse of a child based on allegations made by Daughter, who testified to three instances of alleged abuse. The jury was not instructed that they must unanimously agree on the alleged act at issue to render a guilty verdict. The jury returned a split verdict, convicting on one charge and acquitting on the other. On appeal, Defendant argued, among other things, that his counsel provided ineffective assistance in failing to ensure that the jury was properly instructed regarding unanimity. The Utah Court of Appeals reversed, holding:
- Defense counsel performed deficiently when he did not request that the jury receive a proper unanimity instruction. Defendant faced multiple charges and the jury heard testimony of more instances of alleged abuse than the State charged but the instructions did not require the jury to be unanimous as to the specific act supporting each count of conviction.
- This prejudiced Defendant. Jurors could have interpreted at least two instances of alleged abuse to apply to the count on which the jury convicted, and the State invited jurors to apply any allegation to any count. The record indicates the jury struggled with the evidence, and there is a reasonable probability the outcome would have differed if the jury had been properly instructed.
- OF NOTE: Defendant also raised an issue concerning the trial court orally instructing the jury through the bailiff, without first consulting counsel, to go back and keep trying when it reached an impasse after deliberating until after 10p.m. The jury then returned a split verdict. The court of appeals did not address this issue but noted “the significance of any supplemental instructions and emphasize[d] how important it is for the court to record all the instructions the jury receives rather than try to recreate the record after the fact.” It also “express[ed] [its] concern with the practice of trial courts instructing juries without involvement of counsel.”