State v. Whytock, 469 P.3d 1150

Background

In August 2014, defendant Donnald Whytock lived with his girlfriend (Mother) and her daughters; 14-year-old S.B. later testified that Whytock raped her in her bedroom and told her he would harm her younger sisters if she told anyone. S.B. delayed reporting for months because she feared for her sisters.
S.B. eventually reported the rape in spring 2015; shortly thereafter Whytock went to her stepfather’s house and asked that S.B. recant, which the State later relied on as a possible instance of witness tampering.
The State charged Whytock with rape (first-degree) and one count of witness tampering; the information was amended to widen the date range for the tampering count to include both the alleged August threat and the April doorstep conversation, but no second tampering count was added.
At trial Mother—who had a history of addiction and wore an ankle monitor—gave unsolicited testimony that she had “got [Whytock] out on ankle monitor” from jail despite a pretrial order excluding evidence of Whytock’s criminal history; defense moved for a mistrial which the court denied and offered a curative instruction (declined by defense).
Defense theory attacked S.B.’s credibility (inconsistent statements) and asserted Whytock had a physical sexual-impairment defense; the jury convicted Whytock of both rape and witness tampering.
On appeal Whytock challenged the denial of his mistrial motion and asserted two ineffective-assistance claims: (1) counsel failed to prevent a potential non‑unanimous verdict on the single tampering count that encompassed two distinct acts, and (2) counsel failed to object to a juror instruction omitting the mens rea element for tampering.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of mistrial for Mother’s unsolicited comment about Whytock being taken “out on ankle monitor” was erroneous	State: Comment was unsolicited, brief, inadvertent, cumulative of other evidence, and harmless	Whytock: Comment improperly introduced criminal-history evidence and prejudiced his right to a fair trial	Court: No abuse of discretion; statement was isolated, not elicited, brief, cumulative, and a curative instruction was offered
Whether defense counsel was ineffective for failing to prevent a jury-unanimity problem on the single tampering count that encompassed two distinct acts	Whytock: Counsel should have sought clarification, objected to Stepfather testimony, or moved for mistrial to avoid non-unanimous verdict	State: Counsel reasonably declined to press those remedies (risk of additional charges, futility, strategic choice)	Court: No deficient performance; counsel had reasonable strategic bases and relief would likely have been futile
Whether defense counsel was ineffective for failing to object to a witness-tampering instruction that omitted a mens rea element	Whytock: Instruction allowed conviction without proof of intent/knowledge/recklessness	State: Both parties argued intent; neither suggested a lesser mens rea; omission caused no prejudice	Court: Even assuming deficiency, no prejudice—no reasonable probability outcome would differ because both sides proceeded on specific intent

Key Cases Cited

State v. Wach, 24 P.3d 948 (Utah 2001) (unsolicited, isolated remark about prior bad acts does not require mistrial)
State v. Butterfield, 27 P.3d 1133 (Utah 2001) (mistrial appropriate only if fair trial impossible; appellate review deferential)
State v. Allen, 108 P.3d 730 (Utah 2005) (six-factor analysis supporting denial of mistrial for unsolicited testimony)
State v. Saunders, 992 P.2d 951 (Utah 1999) (jury unanimity requires agreement as to the specific crime and each element)
State v. Alires, 455 P.3d 636 (Utah Ct. App. 2019) (failure to secure unanimity instruction can be ineffective assistance)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance: deficient performance and prejudice)
Kelley v. State, 1 P.3d 546 (Utah 2000) (failure to raise futile objections does not constitute ineffective assistance)