State v. Gollaher , 2020 UT App 131 ( 2020 )

2020 UT App 131THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SCOTT LOGAN GOLLAHER,
Appellant.
Opinion
No. 20160317-CA
Filed September 24, 2020
Second District Court, Morgan Department
The Honorable Noel S. Hyde
No. 121500023
Peter Daines, Attorney for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
ORME, Judge:
¶1 Scott Logan Gollaher challenges his convictions on four
counts of aggravated sexual abuse of a child. First, he contends
that after the jury informed the trial court that two jurors had
difficulty hearing the victims’ testimonies, the court erred in
denying his motion for a mistrial, instead opting to replace the
incapacitated jurors with two alternates. He also asserts that the
court erred in declining his request to specifically ask whether
the members of the reconstituted jury could hear material
testimony, instead inquiring only generally regarding their
capacity to fully consider all evidence presented at trial. Second,
he argues that the jury instructions did not adequately inform
the jury of the constitutional unanimity requirement. Finally, he
asserts that the court erred in permitting the State to present
State v. Gollaher
evidence of a prior conviction for sexual abuse of a child by
calling the prior victim to testify instead of reading the
stipulation that he had offered to the jury. We affirm.
BACKGROUND
¶2 In 2012, the State charged Gollaher with four counts of
first-degree aggravated sexual abuse of a child for touching the
clothed genitalia of two eleven-year-old girls, AM and OP. 1 See
Utah Code Ann. § 76-5-404.1(2), (4) (LexisNexis 2012). In the
information, the State did not identify the specific incidents of
touching for which he was charged. In 2016, the trial court held a
nine-day jury trial at which Gollaher represented himself, with
the limited assistance of standby counsel.
¶3 Testimony began on the third day of trial—a trial that was
fraught with auditory issues. AM and OP, both soft-spoken
minors, were the only witnesses to testify that day. Although the
witness stand held a microphone, its purpose was to record the
proceedings rather than to amplify the witnesses’ voices. OP
testified first. On cross-examination, Gollaher asked her to speak
“a little louder.” Not long thereafter, the court also asked her, on
account of her “somewhat light voice,” to “speak up just a little
bit to make sure that the jurors can hear you.”
¶4 Following a break between OP’s and AM’s testimonies,
the court noted that it had received “a report that the jurors are
. . . having a difficult time hearing.” It noted that although “some
[jurors] can hear fine,” others had “some more difficulty”
hearing “[c]ounsel or the witness.” The court stated that the
issues were “attributable largely to simply the layout of the
1. Because the underlying facts giving rise to Gollaher’s charges
and subsequent convictions are immaterial to our resolution of
the issues Gollaher raises on appeal, we forgo providing a
detailed recitation of those facts.
20160317-CA 2 2020 UT App 131State v. Gollaher
[court]room,” where counsel’s podium was positioned in such a
way that Gollaher and the prosecutor had to question witnesses
with their backs turned to the jury. As a result, in hopes that
their “voice may carry a little bit better,” the court asked them to
“direct [their] physical orientation to the bench” and turn their
heads “both directions” between the witness and the jury as they
spoke. The court also instructed the bailiff to “maintain contact
with the jury” and to alert the court if certain jurors continued to
have difficulty hearing the testimony. Additionally, the court at
times turned off a fan that also interfered with the acoustics of
the room.
¶5 Following these adjustments, the State called AM as a
witness. As soon as AM was sworn in, the court reminded her to
“speak up as much as you can so that everybody [who] needs to
hear the information in your testimony will be able to hear
clearly.” However, just a few moments into AM’s testimony,
Gollaher’s standby counsel interrupted, stating, “I’m even
having a hard time hearing the witness from where I’m sitting.”
The court then noted that AM had “a soft voice” and asked her
to “project your voice a little bit more . . . to the point that it feels
like you are talking loudly.” Shortly after AM resumed her
testimony, the court interrupted her, urging, “Again, speak up,
ma’am. Keep that authoritative voice going.” And a little later,
the court again requested, “try and project your voice as best
you can,” to “increase the volume.” AM completed her
testimony that day.
¶6 At the beginning of the next day of trial, the court noted
that “[t]he jury has had some issue with hearing some of the
witnesses” and stated for the record that it had obtained “some
devices to hopefully help with the hearing.” 2 However, a juror
2. The record is unclear as to what specific type of hearing
devices the court employed. The court generally stated that it
had obtained “some hearing assisting devices for some members
of the jury.”
20160317-CA 3 2020 UT App 131State v. Gollaher
informed the court that only one of the devices worked; hers did
not. The court accommodated her by reorganizing the jurors’
seating arrangement so that she could hear better from her new
position. The court also added a sound-amplifying microphone
to the witness stand. These and other measures appear to have
largely improved the jury’s ability to hear subsequent testimony,
although the court occasionally had to ask witnesses to hold the
microphone closer to their mouths and on at least one occasion,
the court briefly halted proceedings while technological issues
with that microphone were resolved. The court at times
“apologize[d] for the technology limitations,” stating that it was
“doing the best [it] can.” But in the end, when during closing
argument Gollaher raised a concern that the jury could not hear
certain testimony, the court declared that it was “satisfied” that
the jury “did hear a complete record” because “there were
numerous statements” throughout the trial “to ensure that they
did.”
¶7 SCH was the first witness to testify after AM and OP. In
1996, Gollaher had been convicted of second-degree sexual
abuse of a child for improperly touching then-twelve-year-old
SCH. At a prior evidentiary hearing, the trial court granted the
State’s motion to admit evidence of that conviction through
SCH’s testimony. The court’s ruling “permit[ted] the
introduction of the conviction and the summary of the facts
supporting the conviction, but no more.” At trial, Gollaher
offered to stipulate to his prior conviction in lieu of SCH’s
testimony. The State declined this offer, and the court permitted
SCH to testify.
¶8 SCH recounted Gollaher’s abuse of her in detail. SCH also
testified, “I . . . instantly knew [Gollaher] was a bad guy . . . and I
thought he would kill me or kill my family.” Gollaher objected
to these remarks, and the court sustained his objection. SCH
further testified, among other things, that she disclosed the
abuse to authorities six months after it happened, that she
testified at trial after Gollaher was charged, and that Gollaher
was convicted. Several other witnesses testified after SCH.
20160317-CA 4 2020 UT App 131State v. Gollaher
¶9 Although the State presented evidence of approximately
eight prohibited touches of AM and OP by Gollaher, the jury
instructions on each of the four charged counts did not identify a
specific instance of touching. Instead, four identical elements
instructions recited that the jury “must find from the evidence,
beyond a reasonable doubt, that in an instance separate from the
instances which form the basis of the State’s claims on [the other
three counts], all of the following elements of that crime are
established.” Those instructions did not specifically require a
unanimous decision. Instead, three other instructions discussed
the unanimity requirement. One instruction provided, in
relevant part, “It is your duty, as jurors, to consult with one
another and to deliberate with a view to reaching a unanimous
agreement, if your individual judgment allows such agreement.”
Another instructed, “This being a criminal case, it requires a
unanimous concurrence of all jurors (i.e., all voting the same) to
find a verdict.” The third—and most important—unanimity
instruction was not part of the written jury instructions, as
hereafter explained.
¶10 Gollaher objected to the written instructions, requesting
that the elements instructions for each count identify a specific
victim and touching. The court denied Gollaher’s request, ruling
that “[i]t is not required that the instructions identify in minute
detail the particular person or the particular activity which is
claimed to be the specific offending conduct.”
¶11 During closing argument, the prosecutor suggested that
the jury could “pick or choose” which four of the eight
possible instances of prohibited touching it could convict
Gollaher of without “necessarily hav[ing] to agree from juror
to juror on the top four counts.” The prosecutor explained
that, for example, “one juror may have two counts . . . where
OP was molested, and another juror may have only one count
when she was molested and three counts when [AM] was
molested.” When the prosecutor finished addressing the jury,
and before the jury heard Gollaher’s closing argument, the court
stated—without being prompted—that it “has determined that it
20160317-CA 5 2020 UT App 131State v. Gollaher
is both appropriate and necessary to give an additional
instruction to correct what the Court believes to be an incorrect
statement of the law during the State’s argument.” The court
then clarified,
The jury must find unanimously four separate
instances, specifically as provided by the
instructions. It is not appropriate for each juror to
independently determine whether there are some
number of offenses and then aggregate that
determination. The jury must make a
determination as to each count, and be able to find
unanimously a specific instance that meets the
criteria for the offense as to that count.
If such a unanimous determination cannot be made
as to four separate instances, then whatever
number or no instances that are determined
unanimously will control the jury’s verdict. There
must be identified instances on which the jurors
unanimously agree for each offense charged.
¶12 At the close of trial, the court excused the two alternate
jurors, and the remaining jurors retired to deliberate.
Approximately 30 minutes into its deliberations, the jury asked
for transcripts of the proceedings, and another 24 minutes later,
asked, “Can we have a transcript of the girls testimony where 2
of the jurors could not hear & there was no microphone?” On the
heels of this second request, the prosecutor suggested excusing
the two jurors who had difficulty hearing and replacing them
with the two alternate jurors whom had just been excused.
Gollaher responded that recalling the alternates was a “legal
fiction,” and instead moved for a mistrial. The court stated that
“[w]ithout knowing the extent of the claimed incapacity to recall
or understand the testimony, . . . it cannot make a finding that
the jurors are unable to deliberate fully and effectively.” To assist
it in making this determination, the court, with the parties’
20160317-CA 6 2020 UT App 131State v. Gollaher
assistance, formulated three questions that it sent back to the two
jurors who could not hear: (1) “Describe why you are requesting
the review of a transcript,” (2) “Describe the extent to which you
had difficulty hearing or understanding the testimony of any
witnesses,” and (3) “Specifically identify the witnesses
involved.” (The court also contacted the two alternate jurors and
asked them to return to the courthouse.)
¶13 The first juror answered, “I could not hear completely the
witnesses AM and OP. They are soft spoken. The transcript
would help me know what was said,” and also added that
“[s]ome of the questions asked by [Gollaher] could not be
heard.” The second juror responded, “I had trouble hearing
[Gollaher] and AM and OP, the girls were quiet.” The second
juror also stated, “The first day was extremely hard to hear
because of my hearing loss. There was no microphone for their
quiet testimonies. The next day I had my hearing aids turned
up.”
¶14 In response to these answers, the court instructed the jury
to suspend deliberations. It then questioned the two alternate
jurors about whether they had discussed the trial with others
after the court excused them. One alternate stated that she had
contacted her husband to let him know she was home but did
not discuss the case with him and did not express any opinion
on the case. The other alternate responded that he had let his
mother know that he was finished and had arranged to do
something with her later. He also stated that he had not
discussed any specifics of the case with her and had not
expressed an opinion on the matter. The court then engaged in
additional questioning, including asking whether “in the
broadest possible way” there was anything that would have
caused either of them “to have a different perspective now than
[they] did at the time that [they] left their seats originally.” Both
alternate jurors answered in the negative.
¶15 The court excused the two jurors who had had difficulty
hearing OP’s and AM’s testimonies and replaced them with the
20160317-CA 7 2020 UT App 131State v. Gollaher
two alternate jurors. Gollaher did not object to the alternates
being reseated. Instead, he expressed concern as to whether they
and the remaining jurors could hear the witnesses’ testimonies.
“Other than that,” he said, he had “no objection.” The court
expressed concern about “suggesting potential disabilities” to
the jury, and therefore decided not to ask the jurors specifically
about their ability to hear, electing instead to make general
inquiries into their capacity to deliberate.
¶16 When the reconstituted jury—now including the two
alternate jurors—returned to the courtroom, the court
re-administered the juror oath. After questioning the jurors
about their ability to remain unaffected by the replacement of
the two jurors with the alternates and their ability to begin
deliberations anew, the court asked, “Do any of you believe,
based upon your entire experience in the trial, that you will have
any disability from fully and fairly considering all of the
evidence that was presented at the trial if you are asked again to
deliberate in this matter?” It also inquired, “Are any of you
currently acting or operating under any incapacity to fully and
fairly consider all of the evidence that was presented?” After
receiving negative responses to both questions, and following
additional instructions, the court excused the reconstituted jury
to deliberate.
¶17 Gollaher again expressed concern as to whether the
reconstituted jury adequately heard the testimony. The
court ruled that, because it had received negative responses to
its inquiries into “whether there was any concern or incapacity
or inability to fully and fairly consider all of the evidence,
emphasis being placed on ‘fully’ and ‘all’ in several questions as
to any incapacity or inability or deficiency with respect to the
jurors, . . . the jury as presently constituted is qualified to hear
the case.”
¶18 The reconstituted jury returned guilty verdicts on all four
counts. Gollaher appeals.
20160317-CA 8 2020 UT App 131State v. Gollaher
ISSUES AND STANDARDS OF REVIEW
¶19 Gollaher raises three issues on appeal. First, he contends
that the trial court erred in declining to order a mistrial or
conducting a more thorough investigation into the extent to
which all members of the reconstituted jury could hear AM’s
and OP’s testimonies. We review a court’s denial of a motion for
a mistrial for an abuse of discretion and will reverse only when
“the trial court’s determination is plainly wrong in that the
incident so likely influenced the jury that the defendant cannot
be said to have had a fair trial.” State v. Wach, 2001 UT 35, ¶ 45,
24 P.3d 948 (quotation simplified). Similarly, the handling of a
potentially incapacitated juror “is so peculiarly within the
observation, province, and discretion of the trial court that we
should not interfere with the ruling, except upon a clear abuse of
discretion.” State v. Marquina, 2018 UT App 219, ¶ 29, 437 P.3d
628 (quotation simplified), cert. granted, 440 P.3d 691 (Utah 2019).
In other words, we will reverse a court’s decision regarding a
potentially incapacitated juror when, in light of the facts of the
case, the “decision is beyond the limits of reasonability.”
Id. ¶¶ 29, 31 (quotation simplified).
¶20 Second, Gollaher argues that the jury instructions were
erroneous because they did not require juror unanimity on each
count. “A challenge to a jury instruction as incorrectly stating the
law presents a question of law, which we review for
correctness.” 3 State v. Maese, 2010 UT App 106, ¶ 7, 236 P.3d 155(quotation simplified).
3. The State contends that Gollaher’s request that the jury
instructions identify a specific touch and victim for each count of
aggravated sexual abuse of a child did not preserve this issue
because “he did not tell the court that his specific concern was
that without that specificity, the instructions created a risk of
unacceptable non-unanimity.” We disagree. Gollaher’s
articulated concern, when highlighted by the prosecutor’s
(continued…)
20160317-CA 9 2020 UT App 131State v. Gollaher
¶21 And third, he asserts that the trial court erred in
permitting evidence of his prior child-molestation conviction to
be presented to the jury through SCH’s testimony instead of his
offered stipulation. We review a trial court’s evidentiary rulings
for an abuse of discretion, and we “will not reverse the trial
court’s ruling on evidentiary issues unless it is manifest that the
trial court so abused its discretion that there is a likelihood that
injustice resulted.” State v. Tarrats, 2005 UT 50, ¶ 16, 122 P.3d 581(quotation simplified).
ANALYSIS
I. Potential Juror Incapacity
¶22 Gollaher contends that the trial court erred in denying his
motion for a mistrial and in rejecting his request to conduct a
more detailed inquiry into each juror’s ability to hear witness
testimony after two jurors alerted the court that they could not
hear AM’s and OP’s testimonies. He asserts that by limiting its
initial inquiry to the two jurors who professed to be unable to
hear and by “vaguely” questioning the reconstituted jury
“whether they were ‘currently’ suffering from any ‘incapacity’ or
‘disability,’ . . . the trial court abused its discretion and violated
[his] rights to a fair trial and impartial jury.” See U.S. Const.
amend. VI; Utah Const. art. 1, § 12.
(…continued)
misstatement of law, prompted the court to give a third jury
instruction on unanimity. Thus, Gollaher’s unanimity concern
clearly rose to the trial court’s conscious attention. See State v.
Sanchez, 2018 UT 31, ¶ 30, 422 P.3d 866 (stating that for an issue
to be preserved for appeal, it “must be sufficiently raised to a
level of consciousness before the trial court and must be
supported by evidence or relevant legal authority”) (quotation
simplified).
20160317-CA 10 2020 UT App 131State v. Gollaher
¶23 Gollaher asserts that the situation in this case is similar to
that of a sleeping juror. We agree with that proposition. In such
cases, trial courts “are given wide discretion in how to respond,”
with “the specific response depend[ing] on the facts of the case.”
State v. Marquina, 2018 UT App 219, ¶ 31, 437 P.3d 628, cert.
granted, 440 P.3d 691 (Utah 2019). Furthermore, because there is
no “rule or template trial courts must follow whenever they are
confronted with” such situations, we will reverse only when the
“decision is beyond the limits of reasonability.” Id. ¶¶ 29, 31
(quotation simplified). See also id. ¶ 34 (“Utah law does not
require a court to conduct sua sponte a voir dire after a report of
a [potentially incapacitated] juror.”).
¶24 Here, after receiving a request for transcripts of AM’s and
OP’s testimonies because “2 of the jurors could not hear & there
was no microphone,” the trial court questioned the two jurors to
gauge “the extent of the claimed incapacity to recall or
understand the testimony.” After the jurors’ answers confirmed
that they did not adequately hear the crucial testimony, the court
denied Gollaher’s mistrial motion, opting instead to dismiss the
jurors and replace them with the two alternate jurors. 4 After
4. Gollaher asserts that this action violated the version of rule
18(g) of the Utah Rules of Criminal Procedure in effect at the
time, which provided that alternate jurors shall replace jurors
who become incapacitated “prior to the time the jury retires to
consider its verdict.” See Utah R. Crim. P. 18(g) (2016) (emphasis
added). In his reply brief, Gollaher clarified that he did not raise
the rule violation “as an independent ground for reversal” but
“to further show how the trial court bungled its treatment of that
issue within its overall decision to decline a mistrial.”
We note that rule 18 has since been amended to expressly
permit alternates to replace jurors after deliberations have begun.
See id. R. 18(f) (2020). The rule, however, still does not expressly
permit courts to reseat alternates after they have been
discharged. In any event, although Gollaher at an earlier point
called the State’s suggestion that the alternates replace the
(continued…)
20160317-CA 11 2020 UT App 131State v. Gollaher
ensuring that the alternates had not discussed the details of the
case with anyone or expressed an opinion on the case following
their dismissal, the court directed them to join the remaining
jurors.
¶25 Finally, the court engaged in a comprehensive inquiry to
ensure that the reconstituted jury would be able to begin
deliberations anew and would not be affected by its
reconstitution. Although Gollaher requested that the court
specifically ask whether the reconstituted jury could adequately
hear trial testimony, the court expressed concern about
“suggesting potential disabilities” to the jury. Instead, it elected
to make general inquiries into the jurors’ capacities by asking,
“Do any of you believe, based upon your entire experience in the
trial, that you will have any disability from fully and fairly
considering all of the evidence that was presented at the trial if
(…continued)
dismissed jurors a “legal fiction” without reference to rule 18(g),
he later expressed agreement with the court’s recalling of the
dismissed alternates, stating that his sole concern was the degree
to which the reconstituted jury had been able to hear all material
testimony. “Other than that, [he had] no objection.” Accordingly,
any challenge to this aspect of the court’s treatment of the
hearing issue is unpreserved, and because Gollaher does not ask
us to review this issue pursuant to any of the exceptions to our
preservation requirement, we do not address it further. See State
v. Sanchez, 2018 UT 31, ¶ 30, 422 P.3d 866 (stating that for an
issue to be preserved for appeal, it “must be sufficiently raised to
a level of consciousness before the trial court and must be
supported by evidence or relevant legal authority”) (quotation
simplified); In re A.T.I.G., 2012 UT 88, ¶ 21, 293 P.3d 276 (“To
preserve an issue for appeal . . . (1) the issue must be raised in a
timely fashion; (2) the issue must be specifically raised; and (3) a
party must introduce supporting evidence or relevant legal
authority. A party may not preserve an issue by merely
mentioning it.”) (quotation simplified).
20160317-CA 12 2020 UT App 131State v. Gollaher
you are asked again to deliberate in this matter?” and, “Are any
of you currently acting or operating under any incapacity to
fully and fairly consider all of the evidence that was presented?”
Such a course of action is not one that is “beyond the limits of
reasonability.” 5 See id. ¶ 29 (quotation simplified).
¶26 As an initial matter, the original jury specifically advised
the court that two jurors could not hear AM’s and OP’s
testimonies. It was therefore reasonable for the court to ask only
those two identified jurors regarding the extent to which they
could hear the testimonies. After determining that they had not
adequately heard material testimony, the court correctly
dismissed the two jurors. 6 And in light of the court’s concern
5. In so concluding, we do not mean to imply that dealing more
directly with any auditory problems experienced by the
reconstituted jury would have been problematic. It was no secret
that there were significant sound problems during trial, given
the background noise and the lack of quality amplification of
witness testimony. Trial participants were frequently
admonished to speak up, and the court apologized for the
courtroom’s deficiencies. Indeed, focusing more directly on that
potential problem might well have been the better practice.
Inquiring about possible sound and hearing problems would not
have suggested a “disability” to the jurors of which they were
not otherwise fully aware.
6. Gollaher likens his case to that of State v. Turner, 521 N.W.2d
148 (Wis. Ct. App. 1994), in which the Wisconsin Court of
Appeals reversed some of the defendant’s convictions because
two jurors could not adequately hear material testimony. Id. at
150–52. Turner is distinguishable from the present case because,
although the trial court in Turner determined through voir dire
that two of the jurors did not hear all the testimony, it
nonetheless permitted the two jurors to deliberate. Id. at 150.
Based on those facts, the Wisconsin Court of Appeals
determined that the defendant’s “constitutional rights to an
(continued…)
20160317-CA 13 2020 UT App 131State v. Gollaher
about “suggesting potential disabilities” to the reconstituted
jury, the court’s approach to ask more general questions was
understandable, even if not preferable.
¶27 Most importantly, although the court’s questions were
general in nature, they were sufficient to allow the jury to bring
any further auditory issues to the court’s attention. While not
specifically referencing their ability to hear, the court did ask the
jurors, with our emphasis, whether “based upon your entire
experience in the trial,” they had “any disability from fully and
fairly considering all of the evidence that was presented at the
trial.” Although Gollaher takes issue with the court’s use of the
word “disability,” arguing that a juror’s inability to hear on
account of the problematic acoustics of the courtroom does “not
constitute . . . a ‘disability’ at all,” he overlooks that the court
qualified the word with the phrase “based upon your entire
experience in the trial.” The court was clearly asking whether
anything occurred during the trial that would prevent the jurors
from “fully” considering “all” the evidence presented. Thus, if a
member of the reconstituted jury was unable to hear all the trial
testimony, the court’s question would have prompted the juror
to alert the court to that fact, especially on the heels of two jurors
having just been excused because of articulated hearing
problems.
¶28 Given the facts of this case, and given the wide discretion
granted to trial courts to address potential juror incapacity, the
trial court did not exceed its discretion when it elected not to
conduct a more specific inquiry into the reconstituted jury’s
ability to hear material testimony.
(…continued)
impartial jury and due process were infringed when either one
or two jurors were unable to hear the testimony of material
witnesses.” Id. at 151. With replacement of the two jurors who
could not hear with alternate jurors, that is not what happened
here.
20160317-CA 14 2020 UT App 131State v. Gollaher
¶29 Because the court handled the issue satisfactorily, it
likewise did not exceed its discretion in denying Gollaher’s
motion for a mistrial. Specifically, because the court’s
investigation sufficiently addressed whether the reconstituted
jury heard material testimony, we are not persuaded “that the
incident so likely influenced the jury that [Gollaher] cannot be
said to have had a fair trial.” 7 See State v. Wach, 2001 UT 35, ¶ 45,
24 P.3d 948 (quotation simplified).
II. Unanimity Instructions
¶30 Gollaher argues that the two written unanimity
instructions were erroneous because they “fail[ed] to require the
jury to agree on which specific act [he] committed against which
victim and then unanimously find that the elements of sexual
abuse were met with respect to it.” Although we agree that the
written instructions inadequately informed the jury on
unanimity, the court’s oral instruction to the jury during closing
argument filled in the necessary gaps. The court erred, however,
in not subsequently providing this third unanimity instruction to
the jury in written form. This lapse contravened rule 19(c) of the
Utah Rules of Criminal Procedure. Nonetheless, under the facts
of this case, we conclude that the error was harmless.
¶31 The Utah Constitution provides that “[i]n criminal cases
the verdict shall be unanimous.” Utah Const. art. I, § 10. This
requirement is met when a jury’s verdict is unanimous “as to a
specific crime.” State v. Hummel, 2017 UT 19, ¶ 28, 393 P.3d 314(quotation simplified). See id. ¶ 26 (“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.”) (emphasis in original). In other words, it is
7. Gollaher also argues that the trial court’s alleged errors were
structural. See State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543.
Because we conclude that the trial court did not err in its
investigation and denial of a mistrial, we do not reach this issue.
20160317-CA 15 2020 UT App 131State v. Gollaher
insufficient for a jury merely to find “that a defendant is guilty of
a crime” and render “a generic ‘guilty’ verdict that does not
differentiate among various charges.” Id. ¶ 26 (emphasis in
original) (quotation otherwise simplified). A verdict is also not
unanimous where, for example, “some jurors found a defendant
guilty of a robbery 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 the
jurors together agreed that he was guilty of some robbery.” State
v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951. See also Hummel, 2017
UT 19, ¶ 65 (holding “that the constitutional requirement of
unanimity is limited to those matters identified as elements of a
crime in the substantive criminal law” and that alternative
factual theories “of ways of fulfilling such elements, on the other
hand, are not a necessary part of a verdict, and thus fall beyond
the requirement of unanimity”) (emphasis in original).
¶32 And as relevant here, where the State charges a defendant
with multiple counts of a particular crime arising from a number
of distinct criminal acts, “the jury must be unanimous as to
which act or incident constitutes the charged crime.” State v.
Case, 2020 UT App 81, ¶ 21, 467 P.3d 893 (quotation simplified).
Thus, to ensure unanimity in such multiple-acts cases, the jury
instructions must either (1) link an alleged criminal act to a
charge or (2) inform the jury that it must unanimously agree that
the same alleged criminal act has been proven beyond a
reasonable doubt. See id. ¶ 23; State v. Alires, 2019 UT App 206,
¶ 23, 455 P.3d 636 (“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.”).
See also State v. Coleman, 150 P.3d 1126, 1127 (Wash. 2007) (en
banc) (“When the prosecution presents evidence of multiple acts
of like misconduct, any one of which could form the basis of a
count charged, either the State must elect which of such acts is
relied upon for a conviction or the court must instruct the jury to
agree on a specific criminal act.”).
20160317-CA 16 2020 UT App 131State v. Gollaher
¶33 Here, the State alleged eight distinct touches prohibited
under Utah Code section 76-5-404.1(2), but it charged Gollaher
with only four counts of sexual abuse of a child. See Alires, 2019
UT App 206, ¶ 21 (“[E]ach 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).”). The four identical elements
instructions did not link each charge to a specific touching, or
even a specific victim, and the written instructions that did
address the unanimity requirement only generally provided that
it was the jurors’ duty “to consult with one another and to
deliberate with a view to reaching a unanimous agreement, if
[their] individual judgment allows such agreement,” and that
“[t]his being a criminal case, it requires a unanimous
concurrence of all jurors (i.e., all voting the same) to find a
verdict.” The written instructions certainly did not inform the
jury that it had to unanimously agree on a specific incident for
each charge on which it convicted Gollaher. For these reasons,
we agree that the written instructions inadequately informed the
jury on the constitutional unanimity requirement.
¶34 Nevertheless, Gollaher is not entitled to the relief he
seeks. Although the written instructions were deficient, the jury
ultimately received proper instruction on the constitutional
unanimity requirement via the trial court’s aptly timed oral
instruction. When the prosecutor, during closing argument, told
the jury that it could “pick or choose” which four of the eight
possible instances of prohibited touching it could convict
Gollaher of without “necessarily hav[ing] to agree from juror to
juror on the top four counts,” clearly contradicting established
law, see Saunders, 1999 UT 59, ¶ 60, the court correctly interjected
as soon as the prosecutor finished addressing the jury. The court
informed the jury that the prosecution had incorrectly stated the
law and clarified that “[t]he jury must make a determination as
to each count, and be able to find unanimously a specific
instance that meets the criteria for the offense as to that
count. . . . There must be identified instances on which the jurors
unanimously agree for each offense charged.” While the written
20160317-CA 17 2020 UT App 131State v. Gollaher
instructions did not adequately inform the jury of the
constitutional unanimity requirement, this oral instruction cured
that deficiency by ensuring that the jury understood that its
verdict on each charge had to be truly unanimous, thus
satisfying the constitutional unanimity requirement. 8 See State v.
Shickles, 760 P.2d 291, 303 (Utah 1988) (Zimmerman, J.,
concurring) (“[W]hen a prosecutor makes a remark misstating
the law, which may prejudice the jury, the proper procedure is
for the trial court to give a clarifying instruction.”).
¶35 But pursuant to rule 19(c) of the Utah Rules of Criminal
Procedure, the court erred in not subsequently incorporating its
oral instruction into the final written instructions that were
presented to the jury at the end of trial. Rule 19 provides that
“[f]inal instructions shall be in writing and at least one copy
provided to the jury.” Utah R. Crim. P. 19(c). As discussed
above, the written instructions that informed the jury of the
constitutional unanimity requirement were incomplete. The
court’s oral instruction, which notably did not contradict the
written instructions, 9 cured the problems with the written
8. For this reason, the deficiency in the written instructions does
not amount to constitutional error. Rather, as discussed below,
the court erred in not including its oral instruction in the final
version of the written instructions presented to the jury at the
close of trial. This error implicates rule 19(c) of the Utah Rules of
Criminal Procedure rather than the Utah Constitution. See State
v. Buttars, 2020 UT App 87, ¶ 46, 468 P.3d 553 (“[M]ere violations
of statutes [and rules] do not automatically rise to the level of a
constitutional violation.”).
9. Gollaher contends that the oral instruction contradicted the
written instruction that informed the jurors that it was their duty
“to consult with one another and to deliberate with a view to
reaching a unanimous agreement, if [their] individual judgment
allows such agreement.” He argues that “[b]y instructing the
jury that its duty was to deliberate ‘with a view’ to being
(continued…)
20160317-CA 18 2020 UT App 131State v. Gollaher
unanimity instructions. Thus, although the jury was ultimately
properly instructed on unanimity, thereby satisfying the
constitutional requirement, the court violated the rule by not
including its supplemental oral instruction in the final written
instructions. But under the facts of this case, the error was
harmless. See State v. Cruz, 2016 UT App 234, ¶ 41, 387 P.3d 618.
¶36 “An error is harmless if it is sufficiently inconsequential
that we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.” State v. Alires, 2019 UT
App 16, ¶ 23, 438 P.3d 984 (amended opinion) (quotation
simplified). See Utah R. Crim. P. 30(a) (“Any error, defect,
irregularity or variance which does not affect the substantial
rights of a party shall be disregarded.”). We conclude, under the
facts of this case, that the court’s rule violation was harmless.
¶37 Gollaher contends that the oral instruction carried little
weight with the jury because it “was significantly divorced both
conceptually and temporally from the written instructions.” We
might be inclined to agree if the instruction had been given in an
inconspicuous or passing manner. But the manner in which the
(…continued)
unanimous but only ‘if your individual judgment allows such
agreement,’ [the instruction] suggested that unanimity was
something the jury should aspire to but not necessarily achieve.”
But individual instructions must be viewed “within the context
of the jury instructions as a whole.” See State v. Kennedy, 2015 UT
App 152, ¶ 24, 354 P.3d 775. Even assuming that jurors might
interpret that instruction in such a manner, which is unlikely, the
second written instruction addressing unanimity rid the jurors of
any such notion. It provided, with our emphasis, that “[t]his
being a criminal case, it requires a unanimous concurrence of all
jurors (i.e., all voting the same) to find a verdict.” Thus, because
the written instructions did not inform the jury that a unanimous
verdict was optional, the oral instruction could not contradict the
written instructions in the manner that Gollaher asserts.
20160317-CA 19 2020 UT App 131State v. Gollaher
court delivered the oral instruction in this case heightened its
prominence and ensured that it stood out to the jury. After the
prosecutor concluded his closing argument, the court informed
the jury, sua sponte, that the prosecutor had made “an incorrect
statement of the law during [his] argument.” Such a statement
pointing out an unqualified legal error on the prosecutor’s part
would surely stand out in the minds of the jurors. Additionally,
the oral instruction was not fleeting, as Gollaher asserts it to be.
The court first instructed that “[t]he jury must find unanimously
four separate instances, specifically as provided by the
instructions.” Before clarifying the law on unanimity, it first told
the jury what it could not do: “It is not appropriate for each juror
to independently determine whether there are some number of
offenses and then aggregate that determination.” The court then
continued:
The jury must make a determination as to each
count, and be able to find unanimously a specific
instance that meets the criteria for the offense as to
that count.
If such a unanimous determination cannot be made
as to four separate instances, then whatever
number or no instances that are determined
unanimously will control the jury’s verdict. There
must be identified instances on which the jurors
unanimously agree for each offense charged.
Although the court was required by rule 19(c) to include a
version of the oral instruction in the final written instructions,
the court ensured that the jury understood the correct standard
through its oral instruction by repeating the standard more than
once and doing so in the express context of correcting the
prosecutor’s misstatement of law.
¶38 Gollaher also argues that “[t]he jury was not instructed to
use the trial court’s oral statement prospectively to interpret
20160317-CA 20 2020 UT App 131State v. Gollaher
subsequently-issued written instructions in light of it.” But by
stating that “[t]he jury must find unanimously four separate
instances, specifically as provided by the instructions,” before
proceeding to clarify the unanimity requirement, the court did
connect the written instructions with its oral instruction. And in
any event, “jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that
lawyers might.” State v. Hutchings, 2012 UT 50, ¶ 25, 285 P.3d
1183 (quotation simplified). Rather, they apply a “commonsense
understanding of the instructions in the light of all that has taken
place at the trial.” Id. (quotation simplified). See also State v.
Wright, 2013 UT App 142, ¶ 42, 304 P.3d 887 (“In the absence of
any circumstances suggesting otherwise, courts presume that the
jury follows [curative] instructions.”). Accordingly, where the
oral instruction did not contradict the written instructions, the
jurors are presumed to have used the oral instruction to fill in
the gaps in the written instructions.
¶39 We conclude that there was no “reasonable likelihood
that the error” of not including the oral instruction in the final
version of the written instructions “affected the outcome of the
proceedings.” See Alires, 2019 UT App 16, ¶ 23 (quotation
simplified).
III. SCH’s Testimony
¶40 Finally, Gollaher argues that the trial court erred in
permitting SCH to testify instead of accepting his stipulation to
introduce his prior conviction without that testimony. Generally,
“a party may not preclude his adversary’s offer of proof by
admission or stipulation.” State v. Florez, 777 P.2d 452, 454 (Utah
1989) (quotation simplified). See also State v. Verde, 2012 UT 60,
¶ 28, 296 P.3d 673 (“[T]he prosecution retains wide discretion to
reject [stipulations.]”), abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016; State v. Johnson, 2016 UT App
223, ¶ 37, 387 P.3d 1048 (“[S]tipulating to a fact does not cut off
the State’s right to present evidence depicting the context of that
fact.”). But “the State is bound to stipulate to facts, to use an
20160317-CA 21 2020 UT App 131State v. Gollaher
alternative mode of proof, or to forego introduction of the
material if the evidence it offers cannot satisfy rule 403” of the
Utah Rules of Evidence. Florez, 777 P.2d at 455 (quotation
simplified). Rule 403 provides that “[t]he court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of,” among other things, “unfair
prejudice.” Utah R. Evid. 403.
¶41 Although Gollaher “concedes that evidence of his prior
conviction, offered in the proper form, would have been
admissible under rules 404(c) and 403,” he contends that the
manner in which it was presented to the jury failed the rule 403
balancing test. He contends that in light of his offered
stipulation, the risk of unfair prejudice substantially outweighed
the probative value of SCH’s testimony because her testimony
“had ‘no legitimate value’ beyond what could be inferred from a
stipulation,” see Verde, 2012 UT 60, ¶ 29, and, this being a prior
child molestation conviction, it was inevitable that her testimony
would be “emotionally charged” and that it would “unfairly
arouse the jury’s sympathies in a manner that a stipulation
would not have.”
¶42 Because Gollaher did not make this argument to the trial
court, the issue was not preserved. “In order to preserve an issue
for appeal the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on the issue.”
State v. Sanchez, 2018 UT 31, ¶ 30, 422 P.3d 866 (quotation
simplified). In other words, “the issue must be sufficiently raised
to a level of consciousness before the trial court and must be
supported by evidence or relevant legal authority.” Id.(quotation simplified). Gollaher did not meet this requirement
here. His objection to SCH’s testimony at trial was limited to his
concern that it might go “outside of anything which was not
discussed in the 1996 case,” specifically “that the State is going to
try to bring in additional peripheral things that are not in the
record” in violation of rule 404(c) of the Utah Rules of Evidence.
Gollaher asserts that “the obvious implication of his point was
20160317-CA 22 2020 UT App 131State v. Gollaher
broader: that such testimony would be unfairly prejudicial.” We
disagree.
¶43 A review of the record reveals that Gollaher was clearly
concerned that the content of SCH’s testimony would go beyond
the scope of the facts of his prior conviction and not that her
testimony would unnecessarily inflame the jury’s emotions,
implicating rule 403. As part of his objection, Gollaher claimed
that SCH had “testified in a [different] case to matters that are
outside” of his 1996 conviction and requested that the court
allow him to read into the record the court’s pre-trial ruling on
the matter in which it limited SCH’s testimony to “the
introduction of the conviction and the summary of the facts
supporting the conviction, but no more.” Such a request clearly
demonstrates that Gollaher was specifically concerned that SCH
would testify to certain irrelevant facts. And although he referred
to rule 404(c), he never once raised a concern that her testimony
would inflame the jurors’ emotions, thereby implicating rule 403.
Accordingly, we have no rule 403 analysis from the trial court to
review. See Thornton, 2017 UT 9, ¶ 56 (“The trial judge is in a
better position than we are to assess the avowed basis for
evidence of prior misconduct—and to judge its likely effect in
prejudicing or confusing the jury. So the question for us is not
whether we would have admitted this evidence. It is whether the
district judge abused his broad discretion in doing so.”).
¶44 Gollaher thus did not “sufficiently raise[]” the argument
he now asserts on appeal “to a level of consciousness before the
trial court,” much less support his argument by “relevant legal
authority.” See Sanchez, 2018 UT 31, ¶ 30 (quotation simplified).
And because Gollaher has not argued this issue through the lens
of plain error, we have no occasion to further address it. 10 See
State v. Murphy, 2019 UT App 64, ¶ 16, 441 P.3d 787.
10. In so noting, we do not mean to suggest that the claimed
error would have satisfied the rigorous requirements of the plain
(continued…)
20160317-CA 23 2020 UT App 131State v. Gollaher
CONCLUSION
¶45 The trial court did not exceed its discretion by denying
Gollaher’s motion for a mistrial and conducting a general
inquiry into the reconstituted jury’s capacity to fully consider all
evidence presented at trial. The court properly corrected any
error in the written jury instructions through its later oral
instruction, and its error in not including its oral instruction in
the final version of the written instructions was harmless. Lastly,
Gollaher did not preserve his argument challenging SCH’s
testimony at trial.
¶46 Affirmed.
(…continued)
error doctrine, see generally State v. Johnson, 2017 UT 76, ¶¶ 20–21,
416 P.3d 443, or that appellate counsel’s forgoing the effort was
anything other than a sensible strategic decision.
20160317-CA 24 2020 UT App 131