State v. Baugh , 2022 UT App 3 ( 2022 )

2022 UT App 3THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BREVAN BRINGHURST BAUGH,
Appellant.
Opinion
No. 20200178-CA
Filed January 13, 2022
First District Court, Logan Department
The Honorable Angela Fonnesbeck
No. 181100862
Emily Adams, Freyja Johnson, and Cherise M.
Bacalski, Attorneys for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
MORTENSEN, Judge:
¶1 During its closing argument at Brevan Bringhurst Baugh’s
trial for two counts of aggravated sexual abuse of a child, the
State referenced testimony of three instances of alleged abuse.
But the State then told the jury that “those two counts can be
fulfilled with . . . any two of those experiences” and that “any
two of those incidents . . . described . . . can be the elements of
both of these counts.” The jury rendered a split verdict, and
Baugh now appeals, contending that defense counsel provided
ineffective assistance for failing to ensure the jury received
proper instruction regarding unanimity. We agree; accordingly,
State v. Baugh
we vacate Baugh’s conviction and remand for further
proceedings consistent with this opinion.
BACKGROUND
¶2 While Baugh lived at the family house from 2012 to April
2014, his daughter Sasha1 saw a pornographic image of a “hand
job” Baugh had left “up on the computer.” On another occasion,
she “walked in on [him] masturbating.” In April 2014, when
Baugh separated from his wife, Sasha’s mother, Sasha and her
siblings spent their time with Baugh at his apartment.
¶3 Several years later, while Sasha was visiting Baugh, he
made a comment to Sasha about her clothing choices, stating
that even though the clothing choices were inconsistent with
standards by which they aspired to live, he was otherwise “fine”
with them. The comment upset Sasha, and memories of the past
started “coming back.” Unsettled by the incident, Sasha reported
her discomfort to her mother, who then suggested Sasha see a
therapist. During an ensuing therapy session, Sasha disclosed
that, years before, Baugh had, on various occasions, forced her to
touch his penis and give him “hand jobs.”
¶4 The detective who responded to the therapist’s report of
abuse invited Sasha to conduct a recorded confrontation call “to
get . . . some type of evidence . . . from” Baugh. But when Sasha
initially confronted Baugh about the abuse, he denied it and
asked if she was “misremembering things.” When Sasha
reminded him that he had taken her aside and apologized,
Baugh insisted the apology was for her inadvertent exposure to
pornography, and he stated, “[M]y concern here is that you’re
putting that together with something . . . about me that didn’t
happen.”
1. A pseudonym.
20200178-CA 2 2022 UT App 3State v. Baugh
¶5 As Sasha pressed and insisted that the abuse occurred,
Baugh responded, “Well, what I certainly can’t do is deny that
and say that you’re absolutely wrong because you get to feel
however—you—you get to remember it however you remember
it, and I can’t deny that.” When Sasha pressed further and
described the abuse in detail, Baugh responded, “[Sasha], that’s
terrible. And I am very sorry for that. . . . I have no recollection
of that. I am terribly sorry.” And when pressed again and again,
Baugh responded, “I am not denying it. . . . And—if you say I
did it, then—then I’m sure I did. I’m sure I did.” Baugh then
denied that any abuse occurred at the family house. But Baugh’s
memory of the time period he was living in the apartment was
fuzzier; he insisted that he “was messed up a lot,” “was doing a
lot to forget,” and was taking “a lot of medicines to specifically
try and make [himself] numb” and to make himself “forget the
trauma” of his separation from Sasha’s mother. “I guess what
I’m saying,” he continued, “is, if you say it happened, it
happened . . . and I’m not going to deny it.” He then said,
I would never physically take your hand and put it
down my pants. If I did that at the [apartment], I
can, hmm, totally accept that and say, oh, that’s
awful. . . . And I’ve got—and I’ve got to own that,
even if I did it while on a whole bunch of
medications or high on pot or whatever and don’t
remember it, but I’ve got to own it.
¶6 Shortly after the confrontation call, Baugh was arrested,
and the investigating detective followed up with an
interrogation. During the interrogation, Baugh conceded that he
did not deny the accusation of abuse in the apartment but
attributed his failure to deny to being “out of it” during the time
he lived at the apartment. Baugh also conceded that Sasha had
been exposed to pornography but he consistently and repeatedly
denied the abuse allegations. The interrogation concluded with
the following exchange:
20200178-CA 3 2022 UT App 3State v. Baugh
Detective: “Have you had your daughter giving
you hand jobs for years?”
[Baugh]: “For years. Okay. No.”
Detective: “And when was the last time?”
[Baugh]: “It would be at the [apartment] here is
what you’re telling me. I’m telling you at the
[family house].”
The State charged Baugh with two counts of aggravated sexual
abuse of a child: one count for abuse that allegedly occurred in
2012 and one count for abuse that allegedly occurred in 2014.
¶7 At trial, Baugh testified that when he told the detective
that “the last time something sexual happened between” him
and Sasha was at the family house, he was not referring to any
abuse but was referring only to the pornography exposure. Even
though he maintained that no abuse had ever occurred, Baugh
also explained that he had not disputed Sasha’s claim of abuse at
the apartment because he “wanted to . . . meet her where she’s at
and accept her” and provide “support,” and because he wanted
Sasha “to feel validated” and help her “deal with whatever
issues she’s going through.” Baugh expressed his reasoning that
“she’s entitled to feel however she wants to feel, even if she is
getting things mixed up.” Baugh, however, maintained his
position—“I didn’t do what she’s accusing me of.”
¶8 Sasha on the other hand testified about three specific
instances of abuse. She testified that Baugh had made her touch
and rub his penis on two occasions at the family house—once in
his bed and once in her bed—and on one occasion at the
apartment. But nowhere in her testimony did Sasha explain
specifically when the alleged abuse occurred.
¶9 During closing argument the State said,
20200178-CA 4 2022 UT App 3State v. Baugh
Now, we haven’t charged everything that we could
have. We charged two counts. And those two
counts can be fulfilled with—with any two of those
experiences, any two of those incidents that she
described, those can be the elements of both of
these counts.
Neither the court nor defense counsel took issue with this
statement. However, the jury instructions informed the jury that
“[o]pen discussion” could help it “reach a unanimous agreement
on a verdict.” The instructions also directed the jury that it
should “[t]ry to reach a unanimous agreement, but only if [it
could] do so honestly and in good conscience” and that “every
single juror must agree with the verdict before the defendant can
be found ‘guilty’ or ‘not guilty.’” And although the instructions
distinguished the counts based on the date of the alleged
abuse—2012 for count one, and 2014 for count two—the verdict
forms required the jury to indicate only whether it unanimously
agreed that Baugh was “guilty” or “not guilty” for each count
and not whether it agreed on which instance of alleged abuse
constituted the crime for which the jury agreed to convict. The
parties have not identified, and we have not found, anywhere in
the record where defense counsel requested either specific
unanimity instructions pertinent to each count or a special
verdict form requiring the jury to specify which act was linked
with each conviction.
¶10 The jury then retired to deliberate, but nearly seven hours
into those deliberations—a few minutes after 10:00 p.m.—it
indicated that it had arrived at an impasse. The court responded
by orally instructing the jury through the bailiff “to go back and
keep trying”—recounting the incident for the record only after
20200178-CA 5 2022 UT App 3State v. Baugh
the fact.2 And at 11:43 p.m. the jury issued a split verdict,
acquitting Baugh on one count of aggravated sexual abuse of a
child in 2012 and convicting him on one count of aggravated
sexual abuse of a child in 2014. Baugh appeals.
2. Through one issue raised on appeal—that we need not
resolve—Baugh sought relief based on the court’s failure to
make a contemporaneous record of how the jury was instructed
when it reported its impasse. In light of this, we note the
significance of any supplemental instructions and emphasize
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.
Furthermore, we express our concern with the practice of trial
courts instructing juries without involvement of counsel. Cf.
State v. Johnson, 2016 UT App 223, ¶ 22 n.4, 387 P.3d 1048 (“A
court is not required to consult counsel before responding to a
jury’s question by simply referring the jury back to instructions
already approved by counsel. However, such a course of action
is risky because the court’s response to a jury question may be
construed as a new instruction.” (cleaned up)). We also advise
trial courts to refrain from orally communicating with a jury
through a bailiff and off the record. In this case, had we needed
to resolve the issue, we would not have had the information
necessary to do so because, although the trial court attempted to
reconstruct the record, the court’s summary shed no light on
what the bailiff actually said to the jurors. Cf. State v. Martinez,
2021 UT App 11, ¶ 58, 480 P.3d 1103 (Christiansen Forster, J.,
concurring) (“[T]he district court’s failure to record the in-
chambers discussion with counsel or to memorialize what
interaction occurred with [the] jury and how [a jury instruction]
was presented to an apparently deadlocked jury did a disservice
to [the defendant] and his appellate counsel by hampering their
attempt to re-create that record two years post-trial.”).
20200178-CA 6 2022 UT App 3State v. Baugh
ISSUE AND STANDARD OF REVIEW
¶11 Baugh contends that defense counsel rendered
constitutionally “ineffective assistance in failing to ensure that
the jury was properly instructed regarding unanimity.” In
particular, Baugh asserts that “[t]he jury was not instructed that
[it] must unanimously agree as to which of the three alleged
incidences constituted each [of the two] charged crime[s]” and
that this failure prejudiced his defense. (Emphasis omitted.)
“When a claim of ineffective assistance of counsel is raised for
the first time on appeal, there is no lower court ruling to review
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” State v.
Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).
ANALYSIS
¶12 To prevail on a claim that defense counsel rendered
ineffective assistance in failing to ensure the jury received proper
unanimity instruction, Baugh must make a two-part showing.
See State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350. First, Baugh
must show that “his counsel’s performance was deficient in that
it fell below an objective standard of reasonableness,” id.(cleaned up), that is, “whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable,” id.
¶ 36. Second, Baugh must show that “the deficient performance
prejudiced the defense,” id. ¶ 28 (cleaned up), in such a way as
“to undermine confidence in the outcome of the proceeding”—
i.e., “that the outcome of [the] case would have been different
absent counsel’s error,” id. ¶ 43 (cleaned up). Here, Baugh has
carried his burden.
I. Deficient Performance
¶13 Regarding deficient performance, Baugh contends that
defense counsel’s assistance “fell below an objective level of
20200178-CA 7 2022 UT App 3State v. Baugh
reasonableness” when he “did not ensure that the jury was
instructed that [it] must unanimously agree on which of the
three alleged instances [of abuse] constituted the criminal act for
each charge on which [it] convicted [him].” We conclude that
under the circumstances of this case, it constituted deficient
performance for counsel to fail to request that the jury receive
proper unanimity instruction through either specific unanimity
instructions for each count or a special verdict form requiring the
jury to specify which alleged act was linked with each
conviction.
¶14 The Sixth Amendment to the United States Constitution;
Article 1, Section 10 of the Utah Constitution; and rule 21(b) of
the Utah Rules of Criminal Procedure each require “that in
criminal trials, a jury reach a unanimous verdict.” State v.
Mendoza, 2021 UT App 79, ¶ 9, 496 P.3d 275; see also Ramos v.
Louisiana, 140 S. Ct. 1390, 1397 (2020) (discussing the
applicability of the Sixth Amendment’s unanimity requirement
to criminal trials). Moreover, the “requirement of unanimity is
not met if a jury unanimously finds only that a defendant is
guilty of a crime”—instead, the jury must reach “unanimity as to
each count of each distinct crime charged.” State v. Hummel, 2017
UT 19, ¶ 26, 393 P.3d 314 (cleaned up). In other words, the jury
must “agree on a specific criminal act for each charge in order to
convict.” State v. Alires, 2019 UT App 206, ¶ 22, 455 P.3d 636.3
3. The State contests the applicability of State v. Alires, 2019 UT
App 206, 455 P.3d 636, to this case. Specifically, the State argues
that Alires does not apply because it was not published until a
few days after the trial occurred. But the Alires court thoroughly
identified the established law that should have indicated the
need for defense counsel in that case to request appropriate
unanimity instructions. Id. ¶¶ 17–25. The Alires court noted that
“[t]he right to a unanimous verdict in criminal cases is
(continued…)
20200178-CA 8 2022 UT App 3State v. Baugh
¶15 In Alires, counsel rendered deficient performance by
“propos[ing] instructions that did not require the jury to be
unanimous as to the specific acts supporting each count of
conviction.” Id. ¶ 17. In that case, the defendant had been
charged with six counts of aggravated sexual abuse of a child
against two different children, but the jury heard testimony of at
least eight instances of such abuse—six against the first child and
two against the second. Id. ¶ 22. In relation to the six allegations
involving the first child, the State argued that “the jury could
convict . . . on four counts based on any of the six alleged
touches . . . in ‘any combination.’” Id. And in relation to the two
allegations concerning the second child, “the State did not
identify which alleged touch . . . related to which count.” Id.
(…continued)
guaranteed by Article 1, Section 10 of the Utah Constitution (the
Unanimous Verdict Clause).” Id. ¶ 18. The court then went on to
cite State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951 (“The Article
I, section 10 requirement that a jury be unanimous is not met if a
jury unanimously finds only that a defendant is guilty of a
crime.”), and State v. Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314(“The Unanimous Verdict Clause requires unanimity as to each
count of each distinct crime charged by the prosecution and
submitted to the jury for decision.” (cleaned up)). And based on
the established law, the Alires court concluded, “Where neither
the charges nor the elements instructions link each count to a
particular act, instructing the jury that it must agree as to which
criminal acts occurred is critical to ensuring unanimity on each
element of each crime.” Alires, 2019 UT App 206, ¶ 23.
Accordingly, 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 3State 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 counsel
did not request such an instruction, and “[a]s a result, the jury
was never instructed that it must unanimously agree that [the
defendant] committed the same unlawful act to convict on any
given count,” id. ¶ 23. Accordingly, in that case, “[i]t was
objectively unreasonable for . . . counsel to propose jury
instructions that did not require unanimity as to the specific act
that formed the basis of each count resulting in conviction.”4 Id.
¶ 24.
¶16 Likewise, in this case, Baugh faced multiple charges for
aggravated sexual abuse of a child, but the jury heard testimony
of more instances of alleged abuse than the State charged. See
supra ¶¶ 6–8. And the instructions “did not require the jury to be
4. Importantly, whether a failure to request a proper unanimity
instruction results in prejudice will depend on the facts of each
case. For example, in some circumstances the evidence will be
such that although the instructions could allow for a mix-and-
match approach, it will be apparent that the jury would have
agreed on a certain act for each count if the need for such
agreement had been explained to it. See, e.g., State v. Paule, 2021
UT App 120, ¶¶ 44–45 (holding that unanimity was not a
concern where the State presented evidence that could support
multiple bases for an obstruction of justice charge but focused on
only one of those bases in prosecuting the case). In short, where
there are multiple criminal acts at issue, the lack of a unanimity
instruction does not necessarily equal prejudice—the specific
facts and circumstances of each case and the strength or
weakness of the evidence will be paramount to determining if
prejudice has been established. See, e.g., State v. Case, 2020 UT
App 81, ¶ 26, 467 P.3d 893.
20200178-CA 10 2022 UT App 3State v. Baugh
unanimous as to the specific acts supporting each count of
conviction.” See Alires, 2019 UT App 206, ¶ 17.
¶17 As in Alires, nothing in this case conclusively linked the
allegations to the counts listed in the instructions. While the
instructions here did link each count with a certain timeframe—
2012 for count one and 2014 for count two—the instructions did
not link each count with a particular act because nothing the jury
heard at trial linked any particular act with an associated
timeframe. Sasha was never asked to explain when the alleged
abuse occurred, and although she indicated that two instances of
abuse occurred at the family house and one instance of abuse
occurred at the apartment, the association between an instance
of abuse (alleged to have occurred in a specific place) and a
particular count (alleged to have occurred during a particular
time) was not established because Baugh lived at both the family
house and the apartment in 2014. Notably, the jury did not
convict Baugh on count one, the count associated with 2012,
when Baugh undisputedly lived only at the family house. And
although the jury convicted Baugh on count two, because Baugh
lived in both the family house and the apartment in 2014, we
cannot know which one of the three instances of alleged abuse
(one of two in the family house or the one in the apartment) was
the one for which the jury convicted him.
¶18 Further, like the prosecutor in Alires, the State apparently
sought to use this ambiguity to its advantage by inviting the jury
to convict on both counts based on the idea that “those two
counts can be fulfilled with—with any two of those experiences”
and that “any two of those incidents . . . can be the elements of
both of these counts.” As this court stated in Alires, “Where
neither the charges nor the elements instructions link each count
to a particular act, instructing the jury that it must agree as to
which criminal acts occurred is critical to ensuring unanimity on
each element of each crime.” Id. ¶ 23. The prosecutor’s
comments directly contradicted the basic principles of
20200178-CA 11 2022 UT App 3State v. Baugh
unanimity, and defense counsel neglected to request that the
jury was otherwise properly instructed.
¶19 “[T]he jury [had] to be unanimous as to the specific acts
supporting each count of conviction.” See id. ¶ 17. And without a
sufficient link to the actions in the instructions themselves, an
instruction requiring as much was “critical to ensuring
unanimity.” See id. ¶ 23. “By failing to require juror unanimity as
to each underlying act, the instructions—coupled with the
prosecutor’s closing argument—effectively lowered the State’s
burden of proof.” See id. ¶ 25. And where defense “counsel bears
a duty to assist the defendant in reaping the benefits of a jury
trial and to hold the State to its full and complete burden of
proof,” such a failure constitutes deficient performance. See State
v. Mendoza, 2021 UT App 79, ¶ 17, 496 P.3d 275.
II. Prejudice
¶20 Regarding prejudice, Baugh contends that the ambiguity
in the jury instructions, the dearth of consistent evidence, and
the State’s invitation for the jury to apply any act to any charge
all work together to establish a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different,” such that our confidence in the
proceeding’s outcome should be undermined. (Cleaned up.)
Baugh persuades us on this point, and we determine that
“consider[ing] the totality of the evidence,” defense counsel’s
deficient performance has undermined our confidence in the
proceeding’s outcome. See State v. Alires, 2019 UT App 206, ¶ 27,
455 P.3d 636 (cleaned up).
¶21 Although Sasha testified about two instances of abuse at
the family house and one instance of abuse at the apartment,
Baugh resided in the family house from 2012 until April 2014
and also resided in the apartment in 2014. Thus, the jury had no
way of inferring when two of the alleged acts of abuse occurred
based on where the acts occurred. The jury instructions
20200178-CA 12 2022 UT App 3State v. Baugh
distinguished the counts, not by location but based on the date
of the alleged abuse—2012 for count one and 2014 for count two.
By attempting to link the counts with acts that occurred at a
particular time but not at a particular location, the unanimity
that would otherwise have been inherent in the conviction based
on location was lost when the jury heard no evidence about
when the alleged abuse occurred. The fact that the jury heard
nothing specific about when each act occurred creates a
reasonable probability that the jurors did not agree on which act
of alleged abuse supported each count. As noted, the jury heard
allegations that two acts of abuse occurred in the family house
and one occurred in the apartment. But the jury did not convict
Baugh on count one, the 2012 count, which occurred when
Baugh lived only at the family house. And because Baugh lived
in both the family house and the apartment in 2014, we cannot
know if the jury agreed that the conviction for count two, the
2014 count, was for one of the two alleged acts of abuse in the
family house or the alleged act of abuse in the apartment. It is
therefore entirely possible that some (but not all) of the jurors
convicted on count two based on the belief that the alleged abuse
occurred at the family house, while some other (but not all)
jurors convicted based on the belief that the abuse occurred at
the apartment.
¶22 Further, although the alleged abuse that occurred in the
apartment had to have occurred in 2014, the evidence of that
abuse is not so overwhelming that we can conclude that the jury
must have unanimously agreed on that act—as opposed to an
alleged act of abuse at the family house—as the basis for its
conviction on count two for abuse in 2014. See id. (“A verdict or
conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record
support.” (cleaned up)). Sasha reported the abuse years after it
occurred, while Baugh maintained—through the confrontation
call, the interrogation, and the trial—that no abuse happened in
the family house and that he had no memory of any abuse at the
20200178-CA 13 2022 UT App 3State v. Baugh
apartment. And although the State asserts that Baugh “admitted
to” the act of abuse in the apartment, it points to no language
where Baugh expressly admitted the allegations and it instead
insists that his non-denial is actually an admission. But at trial
Baugh denied abusing Sasha and testified that he did not deny
Sasha’s accusations because he wanted to validate his daughter’s
feelings even though he maintained she was “getting things
mixed up.” And while the jury was free to disregard his
explanation, we cannot, on this cold record, conclude that there
is no reasonable probability that the jury found his explanation
credible.
¶23 Moreover, we note the State has relied on Baugh’s alleged
admission both below and on appeal; but importantly, the
theory of this admission’s origin and significance has changed.
At trial, in support of its claim that Baugh had admitted to
abuse, the State relied on the exchange at the end of the
interrogation where Baugh responded to the detective’s question
about whether he “had [his] daughter giving [him] hand jobs for
years.” Specifically, the State argued that Baugh’s statement was
an admission that he had abused Sasha at the family house. On
appeal, however, the State acknowledges that this statement was
ambiguous and shifts its focus to Baugh’s failure to deny the
allegations during the confrontation call as the critical
admission.
¶24 But admission or not, the very fact that the State can
espouse multiple theories regarding the existence of an
admission demonstrates the potential variability in the way the
jury could have viewed the evidence—that is, we cannot be
confident as to how it viewed the evidence including any
possible admission. Indeed, regarding the failure to deny the
allegations during the confrontation call, we do not know
whether the jury believed this was because the abuse actually
occurred or because Baugh truly was validating Sasha. And
regarding the interrogation question about whether Baugh had
20200178-CA 14 2022 UT App 3State v. Baugh
been abusing Sasha for years, we do not know whether the jury
understood Baugh’s response to be an admission or whether it
accepted his explanation that any response he gave referred to
her exposure to pornography. Accordingly, the jurors might
have attributed different significance to different explanations,
and given that any admission would also not establish that the
jury unanimously agreed which act constituted the crime for
which it convicted, we remain unable to identify one charge on
which we can say with confidence it would have convicted.
¶25 Finally, we view the State’s invitation to the jury to take
any allegation and apply it to any count as significantly
undermining our confidence in the proceeding’s outcome. See id.
¶ 26. The State argued that the “two counts can be fulfilled with
. . . any two of those experiences” that Sasha described and that
“any two of those incidents . . . can be the elements of both of
these counts.” The State openly invited the jury to engage in a
free-for-all when applying the acts to the counts, and in so
doing, rejected any theory that the acts that had been testified to
were specially linked to particular counts based on the timing
and location of the underlying criminal act. Cf. id. ¶ 30
(expressing concern with the verdict in part because “[t]he State
told the jury in closing argument that any of the alleged acts
against a particular victim could support any of the charges
relating to that victim”). Following this invitation (an invitation
that loomed large in the absence of any specific unanimity
instruction), the jury deliberated over a case with relatively
simple facts for nearly seven hours before announcing that it had
arrived at an impasse. The court instructed the jury to keep
trying, and at 11:43 p.m., over an hour later, the jury returned
with a split verdict. All this suggests that the jury might have
struggled with the evidence.
¶26 Accordingly, considering all the circumstances, we see a
reasonable probability that but for defense counsel’s deficient
performance, the proceeding’s outcome would have differed—in
20200178-CA 15 2022 UT App 3State v. Baugh
other words, under these circumstances our confidence in the
outcome has been undermined.
CONCLUSION
¶27 Because defense counsel performed deficiently when he
did not request that the jury receive proper unanimity
instruction, and because this deficiency prejudiced Baugh’s
defense in such a way that undermines our confidence in the
proceeding’s outcome, we vacate Baugh’s conviction and
remand for further proceedings.5
5. “Ordinarily, a defendant who prevails on an ineffective
assistance of counsel claim is entitled to a new trial. But where
the counts of conviction cannot be distinguished from the counts
on which the defendant was acquitted, a retrial may be
prohibited by the Double Jeopardy Clause. We express no
opinion on the merits of the double-jeopardy issue, which will
not be ripe unless and until the State seeks a retrial.” Alires, 2019
UT App 206, ¶ 31 n.7 (cleaned up).
20200178-CA 16 2022 UT App 3