State v. Alires , 2019 UT App 206 ( 2019 )

2019 UT App 206THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
PHILBERT EUGENE ALIRES,
Appellant.
Opinion
No. 20181033-CA
Filed December 19, 2019
Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 171908080
Ann M. Taliaferro and Staci Visser, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
HAGEN, Judge:
¶1 Philbert Eugene Alires was charged with six counts of
aggravated sexual abuse of a child—two counts for conduct
toward his youngest daughter and four counts for conduct
toward one of his daughter’s friends (the friend). A jury
convicted Alires on two counts, one for each alleged victim, and
acquitted him of the remaining four counts. We agree with
Alires that his trial counsel was constitutionally ineffective in
failing to request an instruction requiring the jury to reach a
unanimous verdict with respect to each act for which he was
convicted. Accordingly, we vacate his convictions and remand
for further proceedings.
State v. Alires
BACKGROUND 1
¶2 One afternoon, Alires and his wife (the mother) hosted a
party for their youngest daughter’s eleventh birthday. The
daughter invited two of her guests—the friend and another
friend (the other friend)—to a sleepover that night. As the
evening progressed, the daughter, the friend, and the other
friend joined others in the living room to play a video game
called “Just Dance.”
¶3 Later that night, after everyone else had left, Alires and
the mother got into a loud argument that the daughter, the
friend, and the other friend overheard. The daughter appeared
visibly upset and “started tearing up because her parents were
fighting.” Both Alires and the mother could tell that the girls
overheard and were affected by the argument.
¶4 Alires and the mother went to their bedroom and
discussed how they could “try and make [the daughter] happy.”
They decided that Alires would join the girls in the living room
and “try to lighten the mood.” Alires testified that he can
generally make the daughter happy by “wrestling” with her and
her friends or other family members because it “usually ends up
being a dog pile” on Alires and it “usually brings the kids
together and usually changes the mood.” While Alires went to
the living room, the mother stayed behind to change into her
pajamas.
¶5 According to the friend, Alires went into the living room
after the argument and “started trying to dance with [them]”
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Reigelsperger, 2017 UT App 101,
¶ 2 n.1, 400 P.3d 1127 (cleaned up).
20181033-CA 2 2019 UT App 206State v. Alires
and “lighten the mood” because “the fight wasn’t very fun for
anybody.” While they were dancing, Alires “put his hand on
[the friend’s] waist and kind of like slid it down, so [she] just sat
down because [she] felt really uncomfortable.” Alires then “tried
dancing with [her] again and he . . . touched around [her] butt,”
though he “was kind of sneaky about it” as if he was “trying to
make it look like it wasn’t happening.” On direct examination,
the State asked the friend, “[H]ow does that get accomplished?”
She responded, “I’m not sure. He just did it.”
¶6 Feeling uncomfortable, the friend sat down on the couch
next to the daughter. Alires sat down between the two and
“started tickling [the daughter].” The friend testified that, while
Alires tickled the daughter, “it looked like he was touching like
in her inner thigh, and like moved up to her crotch area.”
According to the friend, “it was really not tickling, it was more
like grabbing and grosping [sic].” This lasted “probably 15 to 30
seconds.” Then, Alires turned to the friend and said, “I’m going
to tickle you now.” The friend told Alires she did not feel well
and said, “[P]lease don’t.” But Alires started tickling near her
“ribcage and then touched [her] breast area” and then he
“started tickling [her] inner thighs and did the same thing that
he did to [the daughter].” The friend testified, “[H]e slid his
hand up to my vagina and started like grabbing, and like
grosping [sic], I guess” for “[p]robably about seven to 10
seconds.”
¶7 According to the friend, when Alires got up from the
couch, the daughter asked, “[D]id he touch you?” The friend
said, “[Y]eah. And he touched you, because I kind of saw it.”
The daughter “was like, yeah, can we just go to my room?”
¶8 According to the mother, she entered the living room
about sixty seconds after Alires and told everyone that it was
time to go to bed. The friend testified that it had been “probably
about three minutes,” during which time Alires touched her
buttocks “twice,” her breasts “twice,” and her vagina “[a]bout
20181033-CA 3 2019 UT App 206State v. Alires
four times,” in addition to touching the daughter’s thigh and
vagina.
¶9 Both the daughter and the other friend testified at trial
that Alires did not touch anyone inappropriately and that they
were only wrestling and tickling.
¶10 A few days after the birthday party, the daughter decided
to report the friend’s claim to a school counselor. The daughter
went to the counselor’s office in tears and when the counselor
asked her if “something happen[ed] over the weekend” she
“nodded her head yes.” The daughter “wouldn’t speak to [the
counselor]” but told him that she was “going to go get a friend.”
The daughter then left and returned to the counselor’s office
with the friend. According to the counselor, the friend told him
that Alires had touched both the daughter and the friend on
“[t]he lower area and the breasts,” although “they first described
it as tickling . . . whatever that means.” He also testified that the
daughter “agreed to where the touching happened.” At trial, the
daughter testified that she told the counselor only what the
friend had told her.
¶11 The State charged Alires with six counts of aggravated
sexual abuse of a child without distinguishing the counts. At
trial, the jury was instructed that four of those counts were for
conduct perpetrated against the friend and two of those counts
were for conduct perpetrated against the daughter. During
closing argument, the prosecutor explained that, based on the
friend’s testimony, the jury could “ascertain six counts of
touching of [the friend]” and that the State was “charging four”
of those touches. The prosecutor also cited the friend’s testimony
that she saw Alires touch the daughter on her “inner thigh” and
“on her vagina.” The prosecutor further explained that “any one
of those touchings qualifies for each of the counts. One for one.
One touch for one count. And . . . it has to be just on the vagina,
just on the butt, or just on the breast. It can be any combination.”
20181033-CA 4 2019 UT App 206State v. Alires
¶12 Although both parties submitted proposed jury
instructions, neither side asked the court to instruct the jury that
it must be unanimous as to the specific act underlying each
count of conviction. During its deliberations, the jury sent a
question to the court asking, “Can we please have a clarification
on how the counts work? We don’t understand how to weigh
each count when they are all the same. Not sure what they
mean.” Alires’s trial counsel still did not request a specific
unanimity instruction. Instead, with consent from both parties,
the court referred the jury to instructions it had already received.
The jury convicted Alires on one count of aggravated sexual
abuse of a child involving the friend and one count involving the
daughter.
¶13 After the jury returned its verdict and prior to sentencing,
Alires filed a motion to arrest judgment and for a new trial due
to, among other things, “fatal errors in the jury instructions and
verdict forms.” Trial counsel argued that the jury instructions
were “fatally erroneous in failing to require the jury to find a
unanimous verdict.” The district court denied the motion and
imposed two indeterminate terms of six-years-to-life in prison to
run concurrently.
¶14 Alires appeals.
ISSUE AND STANDARD OF REVIEW
¶15 Alires argues that his trial counsel was constitutionally
ineffective for failing to request a jury instruction that required
the jurors to unanimously agree to the specific act at issue for
each count of aggravated sexual abuse of a child. 2 Alires further
2. Alires did not preserve the underlying jury instruction issue
for appeal, because he raised it for the first time in a post-trial
motion. State v. Fullerton, 2018 UT 49, ¶ 49 n.15, 428 P.3d 1052(reaffirming that “an objection that could have been raised at
(continued…)
20181033-CA 5 2019 UT App 206State v. Alires
argues that, due to the lack of such an instruction, we “cannot be
assured the jury was unanimous” as to which specific acts
formed the basis for his conviction. “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. Bonds, 2019 UT App 156, ¶ 20, 450 P.3d
120 (cleaned up). 3
(…continued)
trial cannot be preserved in a post-trial motion”). Therefore, he
must establish one of the three exceptions to the preservation
requirement: plain error, ineffective assistance of counsel, or
exceptional circumstances. See State v. Johnson, 2017 UT 76, ¶ 19,
416 P.3d 443. In addition to arguing ineffective assistance of
counsel, Alires also asks us to review this issue under plain
error. But because Alires’s trial counsel proposed jury
instructions that contained the same alleged infirmity, trial
counsel invited the error and we are precluded from reviewing it
under the plain error exception to the preservation requirement.
State v. Moa, 2012 UT 28, ¶¶ 23–27, 282 P.3d 985 (explaining that
the invited error doctrine precludes plain error review).
3. Alires also raises issues concerning the sufficiency of the
evidence of sexual intent and the absence of a jury instruction
defining “indecent liberties.” Because we vacate Alires’s
convictions on other grounds and it is uncertain whether these
issues will arise again on remand, see infra note 7, we do not
“exercise our discretion to address those issues for purposes of
providing guidance on remand.” State v. Low, 2008 UT 58, ¶ 61,
192 P.3d 867; see also State v. Barela, 2015 UT 22, ¶ 35, 349 P.3d 676(concluding that “[w]e need not and do not reach the factual
question of the sufficiency of the evidence” when reversing on
the basis of ineffective assistance of counsel relating to the jury
instructions).
20181033-CA 6 2019 UT App 206State v. Alires
ANALYSIS
¶16 Alires argues that his trial counsel was ineffective for
failing to request an instruction requiring the jury to
unanimously agree on the specific act committed for each count
of conviction. “To demonstrate ineffective assistance of counsel,
[a defendant] must show that his counsel’s performance was
deficient and that the deficient performance prejudiced the
defense.” State v. Squires, 2019 UT App 113, ¶ 25, 446 P.3d 581(cleaned up); see also Strickland v. Washington, 466 U.S. 668, 687
(1984). We agree with Alires that his trial counsel performed
deficiently and that counsel’s deficient performance prejudiced
his defense.
A. Deficient Performance
¶17 To overcome the high level of deference we give to trial
counsel’s performance, Alires “must show that counsel’s
representation fell below an objective standard of reasonableness
when measured against prevailing professional norms.” See State
v. Popp, 2019 UT App 173, ¶ 26 (cleaned up); see also Strickland,
466 U.S. at 687–88. Under the circumstances of this case, it was
objectively unreasonable for trial counsel to propose instructions
that did not require the jury to be unanimous as to the specific
acts supporting each count of conviction.
¶18 The right to a unanimous verdict in criminal cases is
guaranteed by Article 1, Section 10 of the Utah Constitution (the
Unanimous Verdict Clause). “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.”
State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951. Instead, “[t]he
Unanimous Verdict Clause requires unanimity as to each count
of each distinct crime charged by the prosecution and submitted to
the jury for decision.” State v. Hummel, 2017 UT 19, ¶ 26, 393 P.3d
314 (emphasis in original). For example, a verdict would not be
valid “if some jurors found a defendant guilty of a robbery
20181033-CA 7 2019 UT App 206State v. Alires
committed on December 25, 1990, in Salt Lake City, but other
jurors found him guilty of a robbery committed January 15, 1991,
in Denver, Colorado, even though all jurors found him guilty of
the elements of the crime of robbery and all the jurors together
agreed that he was guilty of some robbery.” Saunders, 1999 UT
59, ¶ 60. “These are distinct counts or separate instances of the
crime of robbery, which would have to be charged as such.”
Hummel, 2017 UT 19, ¶ 26.
¶19 The constitutional requirement that a jury must
be unanimous as to distinct counts or separate instances of
a particular crime “is well-established in our law.” Id. ¶ 30.
Indeed, this requirement was applied in the closely analogous
Saunders case in 1999. In Saunders, the Utah Supreme Court
considered whether jurors must be unanimous as to
the particular act or acts that form the basis for a sexual
abuse conviction. 1999 UT 59, ¶¶ 9–11. The jury had been
instructed that there was “no requirement that the jurors
be unanimous about precisely which act occurred or when or
where the act or acts occurred.” Id. ¶ 58 (cleaned up). The court
held that, “notwithstanding a clear constitutional command
and applicable case law, the instruction does not set out
any unanimity requirement at all.” Id. ¶ 62. The alleged child
victim had testified that at least fifteen different acts of touching
occurred—some in which the defendant had been applying
Desitin ointment to her buttocks and vaginal area and some in
which he had not. Id. ¶ 5. Without a proper unanimity
instruction, “some jurors could have found touchings without
the use of Desitin to have been criminal; others could have found
the touchings with Desitin to have been criminal; and the jurors
could have completely disagreed on when the acts occurred
that they found to have been illegal.” 4 Id. ¶ 65. Because the
4. “[B]ecause time itself is not an element of an offense, it is not
necessary that the jurors unanimously agree as to just when the
criminal act occurred.” State v. Saunders, 1999 UT 59, ¶ 60, 992
(continued…)
20181033-CA 8 2019 UT App 206State v. Alires
“jury could have returned a guilty verdict with each juror
deciding guilt on the basis of a different act by [the] defendant,”
the court held that “it was manifest error under Article I, section
10 of the Utah Constitution not to give a unanimity instruction.”
Id. ¶ 62.
¶20 Our supreme court recently reinforced these principles in
Hummel. In that case, the court distinguished between alternative
factual theories (or methods or modes) of committing a crime for
which a jury need not be unanimous and alternative elements of a
crime for which unanimity is required. Hummel, 2017 UT 19,
¶ 53. Hummel was charged with the crime of theft. Id. ¶ 1.
Under Utah law, a person commits theft if he “obtains or
exercises unauthorized control over the property of another with
a purpose to deprive him thereof.” Utah Code Ann. § 76-6-404
(LexisNexis 2017). Subsequent sections of the Utah Code explain
that a person is guilty of theft if he obtains or exercises control
over the property “by deception,” id. § 76-6-405, or “by
extortion,” id. § 76-6-406. But the Utah Supreme Court explained
that “[t]heft by deception and theft by extortion are not and
cannot logically be separate offenses.” Hummel, 2017 UT 19, ¶ 21.
“If they were, Hummel could be charged in separate counts and
be convicted on both.” Id. Because the method of obtaining or
exercising control over the property is not an alternative actus
reus element of the crime, jury unanimity at that level is not
required. Id. ¶ 61.
(…continued)
P.2d 951. “Thus, a jury can unanimously agree that a defendant
was guilty of a particular act or acts that constituted a crime
even though some jurors believed the crime occurred on one day
while the other jurors believed it occurred on another day.” Id. In
other words, if all jurors agree that a defendant committed a
particular act, it is immaterial if some jurors think that the act
occurred on a Saturday and others believe it occurred on a
Monday.
20181033-CA 9 2019 UT App 206State v. Alires
¶21 In contrast to Hummel, where deception and extortion
are merely “exemplary means” of satisfying the obtaining or
exercising control element of the single crime of theft, id.,each unlawful touch of an enumerated body part (or each
unlawful taking of indecent liberties) constitutes a separate
offense of sexual abuse of a child under Utah Code section 76-5-
404.1(2). This is illustrated by the fact that a defendant can be
charged in separate counts and be convicted for each act
that violates the statute. See State v. Suarez, 736 P.2d 1040, 1042
(Utah Ct. App. 1987) (holding that the defendant’s acts of
placing his mouth on the victim’s breasts and then placing his
hand on her vagina were “separate acts requiring proof of
different elements and constitute separate offenses”). Unlike the
theft statute in Hummel, the sexual abuse of a child statute
“contains alternative actus reus elements by which a person
could be found” guilty of sexual abuse. See Hummel, 2017 UT 19,
¶ 61. Those alternative elements are touching “the anus,
buttocks, pubic area, or genitalia of any child, the breast of a
female child, or otherwise tak[ing] indecent liberties with a
child,” Utah Code Ann. § 76-5-404.1(2), each of which constitutes
a distinct criminal offense.
¶22 Here, Alires was charged with six counts of aggravated
sexual abuse of a child based on distinct touches prohibited by
the statute. The information charged Alires with six identically-
worded counts of aggravated sexual abuse of a child without
distinguishing the counts by act or alleged victim. At trial,
the friend testified that Alires unlawfully touched her at least
six times and unlawfully touched the daughter twice. In closing,
the State argued that the jury could convict Alires on four
counts based on any of the six alleged touches of the friend in
“any combination.” Similarly, the State did not identify which
alleged touch of the daughter related to which count. 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. See State v. Santos-Vega,
321 P.3d 1, 18 (Kan. 2014) (holding that “either the State
20181033-CA 10 2019 UT App 206State v. Alires
must have informed the jury which act to rely upon for each
charge during its deliberations or the district court must have
instructed the jury to agree on the specific criminal act for each
charge in order to convict”); see also State v. Vander Houwen, 177
P.3d 93, 99 (Wash. 2008) (en banc) (noting that “[t]o ensure jury
unanimity in multiple acts cases, we require that either the State
elect the particular criminal act upon which it will rely for
conviction, or that the trial court instruct the jury that all of them
must agree that the same underlying criminal act has been
proved beyond a reasonable doubt” (cleaned up)).
¶23 Despite the State’s failure to elect which acts it relied
upon for each charge, trial counsel failed to request a proper
instruction. As a result, the jury was never instructed that it must
unanimously agree that Alires committed the same unlawful act
to convict on any given count. Without such an instruction, some
jurors might have found that Alires touched the friend’s
buttocks when dancing, while others might have found that he
touched the friend’s breast while tickling. Or the jury might have
unanimously agreed that all of the touches occurred, but some
might have found that Alires had the required intent to gratify
or arouse sexual desires only while trying to dance with the
friend, while others might have found that he only had sexual
intent when he tickled the friend. In other words, the jurors
could have completely disagreed on which acts occurred or
which acts were illegal. See Saunders, 1999 UT 59, ¶ 65. 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. 5
5. The instructions informed the jury that, “[b]ecause this is a
criminal case, every single juror must agree with the verdict
before the defendant can be found ‘guilty’ or ‘not guilty.’” This
instruction is plainly insufficient. The constitutional requirement
(continued…)
20181033-CA 11 2019 UT App 206State v. Alires
¶24 It was objectively unreasonable for Alires’s trial 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. Although no prior Utah appellate decisions have
applied the Unanimous Verdict Clause to a case where a
defendant is charged with multiple counts of the same crime,
trial counsel is not “categorically excused from failure to raise an
argument not supported by existing legal precedent.” State v.
Silva, 2019 UT 36, ¶ 19. In any event, it should have been readily
apparent that, although Saunders involved a prosecution in
which the defendant was charged with and convicted of a single
count of sexual abuse that could have been based on any one of a
number of separate acts, its holding applies with equal force to a
case such as this where a defendant is charged with multiple
counts of sexual abuse, each of which could have been based on
any one of a number of separate acts.
¶25 The State suggests that a reasonable trial counsel may
have had strategic reasons for not requesting a proper unanimity
instruction. While it is true that “strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable,” Strickland v. Washington,
466 U.S. 668, 690 (1984), here trial counsel candidly admitted that
the failure to request a proper unanimity instruction was “not
due to tactical reasons, but mistaken oversight.” Had trial
counsel properly investigated the governing law, it would have
been apparent that Saunders required the court to instruct the
jury that it must agree on the specific criminal act for each charge
in order to convict. Moreover, we disagree with the State’s
theory that a reasonable defense attorney could have concluded
that “further clarification would have increased the likelihood of
conviction.” By failing to require juror unanimity as to each
(…continued)
of unanimity “is not met if a jury unanimously finds only that
the defendant is guilty of a crime.” Saunders, 1999 UT 59, ¶ 60.
20181033-CA 12 2019 UT App 206State v. Alires
underlying act, the instructions—coupled with the prosecutor’s
closing argument—effectively lowered the State’s burden of
proof. See State v. Grunwald, 2018 UT App 46, ¶ 42, 424 P.3d 990,
(holding that “no reasonable trial strategy would justify trial
counsel’s failure to object to instructions misstating the elements
of accomplice liability in a way that reduced the State’s burden
of proof”), cert. granted, 429 P.3d 460 (Utah 2018). Under these
circumstances, failure to request such an instruction fell below
an objective standard of reasonableness.
B. Prejudice
¶26 Having established that trial counsel performed
deficiently by failing to request a proper unanimity instruction,
Alires must show that he was prejudiced by that deficient
performance. Strickland, 466 U.S. at 687. To establish prejudice, a
“defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Id. Therefore, we consider whether Alires has
shown a reasonable likelihood that a juror unanimity instruction
would have led to a more favorable result. 6 See State v. Evans,
6. Citing State v. Hummel, 2017 UT 19, 393 P.3d 314, the State
argues that “defendants challenging a verdict under the
Unanimous Verdict Clause must affirmatively prove that the
jury was not unanimous.” In Hummel, the court stated that “a
lack of certainty in the record does not lead to a reversal and
new trial; it leads to an affirmance on the ground that the
appellant cannot carry his burden of proof.” Id. ¶ 82. But the
Hummel court was addressing how to assess the prejudicial effect
of “a superfluous jury instruction,” that is, a jury instruction that
includes an alternative theory that was not supported by
sufficient evidence at trial. Id. ¶¶ 81–84. It does not speak to the
(continued…)
20181033-CA 13 2019 UT App 206State v. Alires
2001 UT 22, ¶ 16, 20 P.3d 888 (reviewing for plain error a
defendant’s challenge to the trial court’s failure to provide a
juror unanimity instruction and explaining that a “defendant
must demonstrate . . . that the error should have been obvious to
the trial court, and that the error was of such a magnitude that
there is a reasonable likelihood of a more favorable outcome for
the defendant”); State v. Saunders, 1999 UT 59, ¶¶ 57, 65, 992 P.2d
951 (same); see also State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699(explaining that “the prejudice test is the same whether under
the claim of ineffective assistance or plain error”).
¶27 To determine whether the defendant has shown a
reasonable probability of a more favorable outcome, “a court
hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury.” Strickland, 466 U.S. 668, 695.
“[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.” Id.; see also Saunders, 1999 UT 59,
¶¶ 5, 13, 57, 65 (holding that “factual issues in the case”—
including the “conflicting, confused,” and “obviously . . .
coached” testimony of the alleged victim and the absence of
other witnesses—created a reasonable likelihood that a proper
unanimity instruction would have resulted in “a more favorable
outcome for the defendant”).
¶28 Here, the evidence supporting Alires’s guilt was not
overwhelming. The evidence was conflicting both as to which
acts occurred and as to Alires’s intent. The friend testified to
eight separate touchings that allegedly occurred during a sixty-
second to three-minute period in full view of all three girls in the
room. The friend was the only person to testify that Alires
unlawfully touched her and the daughter. Both the daughter and
(…continued)
standard for showing prejudice where the jury is not properly
instructed on the unanimity requirement.
20181033-CA 14 2019 UT App 206State v. Alires
the other friend testified that no inappropriate touching
occurred. Given the conflicting evidence, there is a reasonable
probability that the jury did not unanimously agree that the
same two acts occurred.
¶29 In addition, even if the jury fully accepted the friend’s
testimony that all eight touches occurred, the surrounding
circumstances were sufficiently ambiguous that members of the
jury could have easily reached different conclusions as to which
acts were done with the required sexual intent. Although direct
evidence of the intent to gratify or arouse a sexual desire is not
required, see In re G.D.B., 2019 UT App 29, ¶ 21, 440 P.3d 706,
Alires, the mother, and even the friend testified that Alires went
to the living room to “tickle” and “wrestle” with the girls with
the intent to “lighten the mood.” Given this evidence, some
jurors may have found that the touches while tickling were
innocent or inadvertent and that Alires had the intent to gratify
or arouse sexual desires only when he slid his hand down to the
friend’s buttocks in a “sneaky” way while dancing. Others may
have concluded touching one particular body part while tickling
the friend or the daughter evidenced sexual intent, although
they may have disagreed as to which body part that was. Where
the evidence is so readily subject to different interpretations, “we
are not persuaded that the jury would have unanimously
convicted had the error not existed.” See Saunders, 1999 UT 59,
¶ 65.
¶30 This is particularly true given the prosecutor’s statements
in closing argument and the jury’s note expressing confusion
over how to treat the various counts. The 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.
Further, the elements instructions were identical for each of the
six counts, with the exception of substituting the friend’s initials
for counts one through four and the daughter’s initials for
counts five and six. And during its deliberations, the jury
expressed confusion over how to deal with the various counts,
20181033-CA 15 2019 UT App 206State v. Alires
asking the court, “Can we please have a clarification on how the
counts work? We don’t understand how to weigh each count
when they are all the same. Not sure what they mean.” The
jury’s question shows that the absence of a proper unanimity
instruction had a palpable impact on the jury deliberations and
undermines our confidence in the jury’s verdict. McNeil, 2016 UT
3, ¶ 30. We therefore conclude that Alires was prejudiced by trial
counsel’s failure to request a juror unanimity instruction.
CONCLUSION
¶31 We conclude that trial counsel performed deficiently
when he did not request an instruction regarding juror
unanimity and that this deficient performance was prejudicial to
Alires’s defense. Accordingly, we vacate Alires’s convictions and
remand for further proceedings. 7
7. Ordinarily, a defendant who prevails on an ineffective
assistance of counsel claim is entitled to a new trial. See State v.
Hales, 2007 UT 14, ¶ 68, 152 P.3d 321. 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. See, e.g., Dunn v. Maze, 485 S.W.3d 735,
748–49 (Ky. 2016) (collecting state and federal cases holding that
a mixed verdict on identically-worded counts forecloses a
retrial). 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.
20181033-CA 16 2019 UT App 206