State v. Hummel, 2017 UT 19

Background

John E. Hummel, former contracted public defender in Garfield County, was tried on four counts of theft and one count of attempted theft for obtaining clients' money, promissory notes, and firearms after discouraging or preventing them from obtaining court-appointed counsel.
Prosecution presented multiple alternative theories (theft by deception and theft by extortion) and multiple sub‑means of deception/extortion in jury instructions; the jury returned general unanimous guilty verdicts on all counts and was polled.
Hummel argued on appeal that the Utah Unanimous Verdict Clause required jury unanimity as to which alternative theory/mode the jury relied on, and that insufficiency of evidence for some theories required reversal; he also raised lesser claims that the prosecution changed theories mid‑trial and engaged in prosecutorial misconduct.
The trial court instructed jurors that they need not agree on a particular alternative, only that a theft under one alternative occurred; no special verdict form was used to identify which theory supported each conviction.
The Utah Supreme Court affirmed: it held unanimity is required only as to the verdict/elements of the charged crime (theft), not as to alternative means/theories; it found sufficient evidence to support at least one theory (deception) for each count and rejected preserved and unpreserved procedural and misconduct claims.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hummel)	Held
Whether the Utah Unanimous Verdict Clause requires jury unanimity as to alternative theories/modes of committing a single statutory offense	Unanimity applies to the jury's verdict on the elements of the charged offense; unanimity need not extend to alternative means/theories	The jury must unanimously agree on which alternative theory/mode (e.g., deception vs. extortion) supports conviction; absence of evidence for some theories undermines unanimity	Court: Unanimity is required only as to elements of the crime as defined by statute (theft), not to non‑exclusive illustrative means or theories; no unanimity problem on record
Whether sufficiency review requires proving each alternative theory presented to the jury	Sufficient evidence that at least one theory supports each theft count is adequate for conviction	Each alternative theory submitted must be supported by sufficient evidence; otherwise reversal is required because the general verdict may rest on an unsupported theory	Court: Sufficiency requires evidence to sustain the elements of the charged offense; only one viable theory need be supported (here, deception sufficed)
Whether the prosecution violated the accused's constitutional right to demand the nature and cause of accusations by changing theories mid‑trial	(Not preserved)	Prosecutor shifted theories after learning formal appointments were absent, prejudicing defense ability to prepare	Court: Claim not preserved—defense failed to object or seek continuance; waived
Whether alleged prosecutorial misconduct (false/misleading evidence and improper closing statements) requires reversal	(Partially preserved) where objections were made; mostly unpreserved so subject to plain‑error review	Prosecutor knowingly presented false/misleading evidence and improper argument that deprived Hummel of due process	Court: Most objections unpreserved; reviewed for plain error and found no obvious reversible error by the trial court; preserved objection that was sustained received no further requested relief so no reversible error

Key Cases Cited

State v. Saunders, 992 P.2d 951 (Utah 1999) (unanimity required as to each distinct crime and its elements)
State v. Johnson, 821 P.2d 1150 (Utah 1991) (jury must be unanimous on all elements of a criminal charge; discussed in context of alternative statutory elements)
State v. Tillman, 750 P.2d 546 (Utah 1987) (plurality: unanimity/sufficiency required as to alternative elements in first‑degree murder context)
People v. Sullivan, 65 N.E. 989 (N.Y. 1903) (general verdict for single crime may stand if evidence justifies conviction under either of alternative theories)
Burks v. United States, 437 U.S. 1 (1978) (double jeopardy considerations regarding retrial after insufficient evidence reversal)
State v. Bond, 361 P.3d 104 (Utah 2015) (unpreserved constitutional claims are reviewed for plain error; preservation doctrine emphasized)