State v. Alires, 455 P.3d 636

Defendant Philbert Alires hosted his daughter’s 11th‑birthday sleepover; during the evening he engaged with the children by “dancing,” “wrestling,” and “tickling.”
A guest (the friend) testified Alires touched her multiple times (breast, buttocks, vagina) and also touched the defendant’s daughter; the daughter and another friend denied any inappropriate touching.
The State charged six counts of aggravated sexual abuse of a child (four counts relating to the friend, two to the daughter) with identical wording and without specifying which alleged touch supported which count.
At trial the prosecutor argued any alleged touch could support any count for that victim; neither party requested a jury instruction requiring juror unanimity as to the specific act underlying each count.
The jury convicted Alires on one count as to the friend and one count as to the daughter, and acquitted on the remaining counts; post‑trial motions were denied and Alires appealed.
The Court of Appeals held trial counsel was constitutionally ineffective for failing to request a unanimity instruction and vacated the convictions, remanding for further proceedings.

Issue	State's Argument	Alires' Argument	Held
Whether trial counsel was constitutionally ineffective for not requesting a jury instruction requiring juror unanimity as to the specific act underlying each charged count	Failure to request unanimity did not prejudice the verdict; error invited by defense instructions; appellant must prove non‑unanimity	Counsel’s omission was deficient and prejudicial because identical counts and multiple alleged touches could mean jurors convicted on different acts	Court: counsel’s performance was objectively unreasonable and prejudicial; convictions vacated and case remanded

State v. Saunders, 992 P.2d 951 (Utah 1999) (jury must be unanimous as to specific act(s) underlying sexual‑abuse conviction)
State v. Hummel, 393 P.3d 314 (Utah 2017) (distinguishes alternative elements from alternative factual acts; unanimity required for distinct acts)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part ineffective assistance test: deficient performance and prejudice)
State v. Suarez, 736 P.2d 1040 (Utah Ct. App. 1987) (separate sexual acts may constitute separate offenses)
State v. Santos‑Vega, 321 P.3d 1 (Kan. 2014) (state must elect act or court must instruct jury to agree on specific act for each charge)
State v. Vander Houwen, 177 P.3d 93 (Wash. 2008) (either election by prosecution or unanimity instruction required in multiple‑acts cases)