517 P.3d 424
Utah Ct. App.2022Background
- Defendant lived with his wife, their children, and the eight‑year‑old stepdaughter (Child). On Dec. 31, 2017, Mother found Defendant on Child’s bed with Child partially undressed; Child told Mother Defendant had put his “thing” in her butt.
- Child gave inconsistent accounts: in a police interview she said an anal incident had occurred previously and that Defendant touched her then; at trial she testified about both an incident before New Year’s Eve and acts (penile contact to anus and vagina; penetration of anus) on New Year’s Eve.
- The State charged two counts: sodomy (broad date range) and aggravated sexual abuse (on/about Dec. 31, 2017). The prosecution presented evidence of multiple potentially criminal acts (four distinct alleged touches) but linked them to only two counts.
- First trial ended in mistrial; at second trial the State called an expert on forensic child interviews and elicited Child’s testimony; defense extensively used leading questions on cross‑examination. The jury received only a general unanimity instruction (no instruction requiring jurors to agree on the specific act underlying each count).
- Jury convicted on both counts. On appeal Defendant argued (1) ineffective assistance for failing to request a specific unanimity instruction, (2) prosecutorial misconduct for arguing leading cross‑examination was improper and for using the forensic‑interview expert, and (3) erroneous exclusion of lay testimony about moaning heard after the party.
- The court of appeals held counsel rendered ineffective assistance under Strickland by failing to request a specific jury unanimity instruction (following State v. Alires), found prejudice, declined to overrule Alires, reversed the convictions, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance — failure to request a specific unanimity instruction | Garcia‑Lorenzo: counsel unreasonably failed to request instruction requiring jurors to unanimously agree on the specific act supporting each count; this prejudiced the verdict | State: law wasn’t clear pre‑Alires; prosecutor’s closing identified the acts and cured any unanimity problem | Court: Counsel’s omission was objectively unreasonable under Alires and Strickland; omission was prejudicial; convictions reversed and remanded |
| Prosecutorial misconduct — statements implying defense’s leading questions were improper | Garcia‑Lorenzo: prosecutor’s closing improperly suggested defense cross‑examination pressured Child and court failed to remedy | State: trial court acted within discretion; defense opened the door | Court: declined to fully resolve prejudice given new trial; instructed that implying leading cross‑examination is improper is inappropriate and should be avoided on remand |
| Evidentiary ruling — exclusion of lay testimony about moaning | Garcia‑Lorenzo: witness’s lay opinion that sounds were sexual was admissible under Rule 701 as within ken of bystander and relevant | State: argued exclusion appropriate (foundation/other grounds) | Court: such lay opinion is admissible if rationally based on perception, helpful, and within ken of bystander; exclusion on that sole basis would be error |
| Whether Alires should be partially overruled | N/A (State requested overruling): Alires should not control | State: law was not clearly settled pre‑Alires; panel should narrow Alires | Court: declined to overrule Alires—stare decisis, reliance, and related appellate development support continuing application |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑part ineffective assistance test)
- State v. Alires, 455 P.3d 636 (Utah Ct. App. 2019) (requires jury unanimity as to the specific act supporting each charged count when multiple acts are proven)
- State v. Hummel, 393 P.3d 314 (Utah 2017) (unanimity under Utah Constitution requires jurors agree on each distinct crime/count)
- State v. Saunders, 992 P.2d 951 (Utah 1999) (unanimity precedent relied upon in unanimity jurisprudence)
- State v. Mottaghian, 504 P.3d 773 (Utah Ct. App. 2022) (discusses when absence of specific unanimity instruction is not prejudicial)