This opinion is subject to revision before final

publication in the Pacific Reporter

2024 UT 33 

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, 

Petitioner,

v. 

BREVAN BRINGHURST BAUGH, 

Respondent. 

No. 20220272 

Heard December 13, 2023 

Filed August 15, 2024 

On Certiorari to the Utah Court of Appeals

First District, Cache County

The Honorable Angela Fonnesbeck

No. 181100862 

Attorneys:

Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen., 

Salt Lake City, for petitioner

Emily Adams, Freya Johnson, Melissa Jo Townsend, Bountiful, 

for respondent

CHIEF JUSTICE DURRANT authored the opinion of the Court, in 

which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN, 

JUDGE BEAN, and JUDGE HOWELL joined.

Having recused themselves, JUSTICE HAGEN and JUSTICE POHLMAN

do not participate herein; DISTRICT COURT JUDGE JOSEPH BEAN and

DISTRICT COURT JUDGE ANTHONY HOWELL sat.

CHIEF JUSTICE DURRANT, opinion of the Court:

INTRODUCTION

¶1 In 2018, Brevan Bringhurst Baugh was charged with two 

counts of aggravated sexual abuse of a child. At trial, the 
STATE v. BAUGH

Opinion of the Court

2

prosecution introduced evidence of three instances of alleged 

abuse,1 with the instances distinguished based on the location in 

which they occurred. But the two counts charged were 

distinguished based on date rather than location. And in the State’s 

closing argument, it told the jurors they could use “any two” of the 

three alleged instances of abuse to fulfill the elements of the 

charged counts. The jury convicted Baugh on one count and 

acquitted him on the other.

¶2 Baugh appealed. He argued there was a risk that the jury 

did not unanimously agree on which instance of abuse supported 

the count on which he was convicted. Baugh also contended that

his counsel rendered constitutionally ineffective assistance by 

failing to request jury instructions that would have properly 

instructed the jury on its constitutional duty to be unanimous as to 

each element of each convicted count. The court of appeals agreed 

with Baugh and vacated his sentence.

¶3 We granted the State’s certiorari petition. We affirm.

BACKGROUND

¶4 Between 2012 and 2014, Brevan Bringhurst Baugh lived at 

his family home (Nibley Home) with his daughter Sasha2 and her 

mother. In April 2014, Baugh and Sasha’s mother commenced 

divorce proceedings, and Baugh moved into a one-bedroom 

apartment (Falls Apartment). Sasha and her siblings visited Baugh 

while he was living at Falls Apartment. Several years later, Sasha 

revealed to her therapist that Baugh had abused her, and her 

therapist reported the allegations to the police.

¶5 During the investigation into the abuse, a detective asked 

Sasha to call Baugh while the detective listened in. The detective’s 

intent was to get Baugh to confess to the crimes. While on the call, 

Baugh resisted admitting to the allegations and suggested that 

Sasha was not remembering things correctly. He eventually 

apologized to Sasha but remained adamant that the apology was 

__________________________________________________________

1 We use “alleged abuse” here because, although Baugh was 

convicted of one count of aggravated sexual abuse of a child and 

acquitted of one count, we cannot know on which instance of 

touching the jury based its conviction. Therefore, when referring to 

the separate instances of touching, we use the term “alleged.”

2 A pseudonym.
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Opinion of the Court

3

only for inadvertently exposing Sasha to pornography and for her 

walking in on him while he was masturbating. When pressed, 

Baugh acknowledged that if Sasha remembered abuse occurring, 

he wouldn’t deny it. But he insisted that he had no recollection of 

abusing Sasha, blaming his failure to remember on his marijuana

use at the time of the alleged acts.

¶6 After this confrontation call, the detective brought Baugh 

in for questioning. Baugh restated that he and Sasha didn’t “have 

the same recollection of the events.” But he did admit to exposing 

Sasha to pornography and that she had once seen him 

masturbating. The detective also asked whether Baugh had been 

abusing Sasha “for years.” Baugh responded, “For years[?] Okay 

no. No.” The detective then asked when was the last time he had 

abused Sasha. Baugh responded that it was at Nibley Home.

¶7 On July 9, 2018, Baugh was charged with two counts of 

aggravated sexual abuse of a child, a first-degree felony, in 

violation of Utah Code subsection 76-5-404.1(4). The first count was 

based on alleged conduct that occurred on or about 2012. The 

second count was based on alleged conduct that occurred on or 

about 2014.

¶8 At trial, Sasha testified that Baugh made her touch his 

penis three times between 2012 and 2014. Sasha stated that during 

each of these alleged incidents, Baugh put Sasha’s hand on his 

penis and moved it up and down until “white stuff came out.” 

Sasha testified that the first two alleged incidents occurred while 

Baugh and Sasha were lying on Baugh’s bed in Nibley Home. The 

final alleged incident occurred when Sasha was twelve and Baugh 

had moved out of Nibley Home and into Falls Apartment.

¶9 Baugh countered Sasha’s testimony by testifying that none 

of the alleged acts occurred. He insisted that, until Sasha’s 

confrontation call, he had no suspicion of the accusations. While 

Baugh did admit to accidentally exposing Sasha to pornography 

and further admitted that she had walked in on him while he was 

masturbating, he remained adamant that he never touched Sasha 

and he never had Sasha touch him. He also insisted that the 

comments he made during the phone call and subsequent 

interrogations were not confessions to having abused Sasha. Baugh 

testified that his answer to the final question the detective asked 

him during the interrogation was describing the last time he 

exposed Sasha to pornography. And when questioned about the

other statements he made on the confrontation call, he stated that 
STATE v. BAUGH

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4

he did not outright deny the allegations because he wanted to 

validate Sasha’s feelings.

¶10 During closing argument, the prosecution stated that the 

two counts charged could be “fulfilled with . . . any two of those 

incidents that [Sasha] described, those can be the elements of both 

of these counts.” Defense counsel did not object to this statement

nor request more specific unanimity instructions.

¶11 The jury was then instructed. Regarding both counts of 

sexual abuse of a child, the jury was told that it must find:

(1) the Defendant, Brevan Baugh, (2) occupied a 

position of special trust in relation to Sasha, and 

(3) intentionally, knowingly, [or] recklessly touched 

the anus, buttocks, genitalia or breast of Sasha or 

otherwise took indecent liberties with her or caused 

her to take indecent liberties with him, (4) with the 

intent to arouse or gratify the sexual desire of any 

person regardless of the sex of any participant, and 

(5) at the time of the offenses Sasha was under the age 

of fourteen.

The jury was also given a general unanimity instruction: “Because 

this is a criminal case, every single juror must agree with the verdict 

before the Defendant can be found guilty or not.”

¶12 Ultimately, the jury acquitted Baugh of Count One and 

convicted him of Count Two. Baugh appealed the conviction. He 

argued that his counsel provided ineffective assistance in failing to 

request more specific unanimity instructions.

¶13 Article I, section 10 of the Utah Constitution contains the 

Unanimous Verdict Clause, which reads, “In criminal cases the 

verdict shall be unanimous.” To render a valid verdict under that

clause, the jury must be unanimous on all elements of the charged 

crime.3 Jury instructions must adequately convey this unanimity 

requirement to the jury.4

__________________________________________________________

3 State v. Hummel, 2017 UT 19, ¶ 29, 393 P.3d 314.

4 See Meeks v. Peng, 2024 UT 5, ¶¶ 35, 39, 545 P.3d 226 (explaining 

that jury instructions must “fairly instruct the jury on the law 

applicable to the case,” and must “accurately convey the law” 

(cleaned up)).
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Opinion of the Court

5

¶14 In reviewing Baugh’s appeal, the court of appeals applied 

these principles and reasoned that, much like in its recent decision 

in State v. Alires,5 Baugh’s counsel’s performed deficiently by 

failing to request jury instructions that instructed the jury to be

unanimous on which specific act supported which specific charge.6

It further reasoned that these ambiguous instructions could have 

led some jurors to convict Baugh based on one alleged instance of 

abuse and others to convict on another alleged instance, in violation 

of the unanimity requirement.7 Because of that risk, the court of 

appeals held that Baugh was prejudiced by defense counsel’s 

deficient performance and vacated his conviction.8 We granted the 

State’s petition for certiorari.

STANDARD OF REVIEW

¶15 The State challenges the court of appeals’ determination 

that Baugh’s counsel provided constitutionally ineffective 

assistance by failing to request more specific unanimity 

instructions. “[W]e review the court of appeals’ decision for 

correctness.”9

ANALYSIS

¶16 An ineffective assistance of counsel claim has two 

elements. “First, the defendant must show that counsel’s 

performance was deficient.”10 “Second, the defendant must show 

that the deficient performance prejudiced the defense.”11 “[F]ailure 

to establish either prong is fatal to an ineffective assistance of 

counsel claim.”12

¶17 The State argues that neither prong of this test is satisfied.

First, the State contends that Baugh’s counsel’s performance was 

reasonable because Unanimous Verdict Clause caselaw regarding 

__________________________________________________________

5 2019 UT App 206, 455 P.3d 636.

6 State v. Baugh, 2022 UT App 3, ¶¶ 15–19, 504 P.3d 171.

7 Id. ¶ 21.

8 Id. ¶¶ 26–27.

9 State v. McNeil, 2016 UT 3, ¶ 14, 365 P.3d 699.

10 Strickland v. Washington, 466 U.S. 668, 687 (1984).

11 Id.

12 State v. Centeno, 2023 UT 22, ¶ 64, 537 P.3d 232 (cleaned up).
STATE v. BAUGH

Opinion of the Court

6

how a jury must be instructed on unanimity is ambiguous. Second, 

the State argues that the court of appeals erred in its prejudice 

analysis by failing to analyze whether there was a reasonable 

probability that a jury would have convicted Baugh absent 

counsel’s deficient performance. The appellate court’s error, the 

State contends, is significant because Baugh did not carry his 

burden of showing that any alleged deficient performance 

prejudiced him.

¶18 We disagree with the State on both points.

I. BAUGH’S COUNSEL PERFORMED DEFICIENTLY BY FAILING TO 

REQUEST A MORE DETAILED UNANIMITY INSTRUCTION

¶19 To constitute deficient performance, counsel’s 

representation must fall “below an objective standard of 

reasonableness.”13 Reasonableness is determined by “prevailing 

professional norms.”14 Whether “counsel’s actions can be 

considered strategic plays an important role in our analysis” of 

whether counsel’s performance was deficient, but lack of strategic 

advantage is not conclusive in determining whether counsel’s 

performance was unreasonable.15 “A reviewing court must always 

base its deficiency determination on the ultimate question of 

whether counsel’s act or omission fell below an objective standard 

of reasonableness.”16

¶20 The State challenges the court of appeals’ deficient 

performance analysis, claiming that the court of appeals 

misapprehended Unanimous Verdict Clause caselaw. In its 

analysis, the court of appeals relied on Alires to determine that 

Baugh’s counsel’s performance was deficient.17 The court reasoned 

that, in Alires, it had correctly understood Unanimous Verdict 

Clause caselaw. In that case, the court dictated that “[w]here 

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 

__________________________________________________________

13 Strickland v. Washington, 466 U.S. 668, 688 (1984).

14 Id.

15 State v. Ray, 2020 UT 12, ¶¶ 34, 36, 469 P.3d 871 (cleaned up).

16 Id. ¶ 36.

17 State v. Baugh, 2022 UT App 3, ¶¶ 15–19, 504 P.3d 171 (citing 

State v. Alires, 2019 UT App 206, 455 P.3d 636).
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Opinion of the Court

7

element of each crime.”18 And because neither the charges, the jury 

instructions, nor the State’s presentation of evidence in Baugh’s 

case linked specific conduct to each count, the court of appeals held 

that Baugh’s counsel’s failure to request more specific unanimity 

instructions constituted deficient performance.19

¶21 But the State argues that the caselaw regarding the kind of 

jury instructions necessary to ensure unanimity was not clear when 

Alires was decided. The court of appeals had, according to the State, 

incorrectly treated State v. Saunders20—a plurality opinion—as 

established precedent and had extended its narrow holding past 

what this court intended. Without Saunders as established 

precedent, the State argues that the court of appeals’ reasoning falls

apart because any remaining binding precedent was either not 

dispositive or inapplicable.

¶22 We now begin our analysis with our own review of the 

relevant caselaw on the Unanimous Verdict Clause in article I, 

section 10 of the Utah Constitution.

¶23 The Unanimous Verdict Clause requires that “the [jury’s] 

verdict shall be unanimous” in all criminal cases.21 It is not enough 

that the jury find the defendant “guilty of some crime.”22 For 

example, a verdict would not be unanimous “if 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 

jurors” agreed that he was guilty of robbery.23 The jury must be 

unanimous “as to a specific crime and as to each element of the 

crime” to comply with the Unanimous Verdict Clause.24 Neither 

party disputes this premise.

¶24 Although our caselaw is clear that the jury must be 

unanimous as to each element of each count of a crime, it is less 

__________________________________________________________

18 Id. ¶¶ 14 n.3, 18 (quoting Alires, 2019 UT App 206, ¶ 23).

19 Id. ¶¶ 16–19.

20 1999 UT 59, 992 P.2d 951.

21 UTAH CONST. art. I, § 10.

22 Hummel, 2017 UT 19, ¶ 27, 393 P.3d 314 (cleaned up).

23 Id. ¶ 28 (cleaned up).

24 Saunders, 1999 UT 59, ¶ 60 (plurality opinion).
STATE v. BAUGH

Opinion of the Court

8

clear how that unanimity requirement must be conveyed to the jury

in multiple-act cases like Baugh’s, where a defendant is charged 

with multiple counts of a crime with identical elements.25

¶25 In Saunders, the defendant was charged with one count of 

sexual abuse of a child.26 The prosecution presented evidence of

several acts, any one of which could satisfy the touching element of 

the charge.27 The unanimity instruction given to the jury stated that

there was “no requirement that the jurors be unanimous about 

precisely which act occurred or when or where the act or acts 

occurred.”28 On appeal, we held that it was plain error for the trial 

court to give these instructions, as they could have led the jurors to 

believe that it was acceptable to render a non-unanimous verdict.29

But Saunders did not establish clear precedent on multiple-act cases 

because the relevant portion of the opinion was a plurality.30

¶26 Our next case on the issue, State v. Evans, provided no 

more clarity regarding the form jury instructions should take to 

ensure a unanimous verdict.31 In that case, the defendant 

challenged jury instructions that presented two alternative theories 

for finding aggravating factors, without mentioning unanimity.32

__________________________________________________________

25 We note that we establish in State v. Chadwick—which is 

published simultaneously with this case—how unanimity must be 

conveyed to the jury in multiple-act cases in which charges are not 

connected to specific conduct in the jury instructions. 2024 UT 34, 

__ P.3d __.

26 Saunders, 1999 UT 59, ¶ 4. Saunders was charged with 

multiple offenses, but the solitary sexual abuse charge is the only 

one relevant to our analysis.

27 Id. ¶ 5.

28 Id. ¶ 65.

29 Id. ¶¶ 65, 68 (plurality opinion); id. ¶ 70 (Howe, C.J., 

concurring in part and dissenting in part); id. ¶ 79 (Zimmerman, J., 

concurring in part and dissenting in part).

30 See id. ¶¶ 67, 68 (Russon, J., concurring in the result); id. ¶ 70

(Howe, C.J., concurring in part and dissenting in part); id. ¶ 79

(Zimmerman, J., concurring in part and dissenting in part).

31 2001 UT 22, 20 P.3d 888.

32 Id. ¶¶ 15–16.
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Opinion of the Court

9

In holding that it was not plain error for the court to give these jury 

instructions, we stated that the instructions created the risk of only 

slight confusion as to the unanimity required by the jury.33 The 

State argues that Evans establishes that the lack of a specific 

unanimity instruction only ever creates a risk of “slight confusion” 

for a jury. But that reads too much into this court’s opinion.

¶27 The Evans court stated that it was “unconvinced that the 

slight confusion that may have arisen from the wording of the 

instructions used [at trial] present[ed] a reasonable likelihood of a 

more favorable result for defendant.”34 Such language indicates a 

case- and fact-specific holding, rather than a general 

pronouncement, and we decline to extend this holding beyond that 

case.

¶28 In State v. Alires, which had not been decided at the time of 

Baugh’s trial, the court of appeals surveyed the state of the law 

regarding jury unanimity instructions in multiple-act cases.35 In

Alires, the defendant was charged with six counts of aggravated 

sexual abuse of a child.36 But, as in Evans, the jury instructions did 

not connect each count to a separate instance of touching.37 The jury 

was given a general unanimity instruction informing it that all 

jurors must be unanimous regarding the guilt of the defendant.38

During deliberations, the jury asked twice for clarification “on how 

the counts work,” and asked in particular how to “weigh each 

count when they are all the same.”39 The court referred the jury 

back to its instructions.40 The jury convicted Alires on two counts 

and acquitted him on the rest.41

__________________________________________________________

33 Id. ¶ 17.

34 Id.

35 2019 UT App 206.

36 Id. ¶ 1.

37 Id. ¶ 11.

38 Id. ¶ 23 n.5.

39 Id. ¶ 12.

40 Id.

41 Id.
STATE v. BAUGH

Opinion of the Court

10

¶29 The court of appeals reviewed the jury’s verdict to 

determine whether counsel was ineffective for failing to request 

more specific unanimity instructions.42 It reasoned that the state of 

the law “should have been readily apparent” based on our holding 

in Saunders: “[w]here 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.”43 This blanket 

statement fails to recognize the reduced weight that Saunders must 

be given as a plurality opinion. Because the relevant portion of 

Saunders did not represent the opinion of the majority of the court,

the court of appeals could rely only on that case’s outcome as 

binding precedent, not its reasoning.44

¶30 Although the court of appeals may have overstated the

weight of the holding in Saunders, that case was still the most 

relevant precedent at the time and thus an indicator to reasonable 

counsel of the range of appropriate actions. Relevant case law is one 

of several factors to consider in assessing the reasonableness of 

counsel’s performance. And that counsel’s performance was 

objectively unreasonable because not requesting specific unanimity 

instructions effectively lowered the State’s burden of proof was 

another factor. Taken together, these two factors still support the 

court of appeals’ conclusion that Alires’s counsel performed 

deficiently despite the court’s overstatement of Saunders as binding 

precedent.

¶31 Having reviewed the state of the law regarding the 

standard for instructing a jury on unanimity, we turn to Baugh’s 

case. Despite the unsettled law in this area, it is clear in Baugh’s 

case that the jury was not adequately instructed.

¶32 Baugh was charged with sexual abuse of a child. Under 

Utah Code subsection 76-5-404.1(2)(a), a person is guilty of sexual 

abuse of a child if “the actor: . . . [1] touches, whether over or under 

__________________________________________________________

42 Id. ¶ 16.

43 Id. ¶¶ 23–24 (citing Saunders, 1999 UT 59, ¶ 65 (plurality 

opinion)).

44 See State v. Mohi, 901 P.2d 991, 996 (Utah 1995) (explaining that 

plurality opinions “do not constitute binding precedent); see also

State v. Giron, 943 P.2d 1114, 1121 (Utah 1997) (stating that a 

plurality opinion’s analysis “is not binding”).
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Opinion of the Court

11

the clothing, the buttocks or pubic area of a child; . . . the breast of 

a female child; or . . . otherwise takes indecent liberties with a 

child,” and “[2] the actor’s conduct is with intent to . . . cause 

substantial emotional or bodily pain to any individual; or . . .

arouse or gratify the sexual desire of any individual.” Caselaw is 

clear that the jury must be unanimous as to each element of each 

count of that crime.45 In practice, this means that the jury must 

agree on which incident of touching satisfies each count. If the jury 

does not agree on which act relates to each count, then its verdict 

violates the Unanimous Verdict Clause.

¶33 The jury in Baugh’s case was given a general unanimity 

instruction that read, “Because this is a criminal case, every single 

juror must agree with the verdict before the defendant can be found 

guilty or not guilty.” Trial counsel did not request a more specific 

unanimity instruction.

¶34 The circumstances of Baugh’s case created an 

unacceptable risk of a non-unanimous verdict, and a reasonable 

attorney would have recognized that risk. Baugh was charged with 

two counts of aggravated sexual abuse of a child for alleged acts 

occurring in 2012 and 2014. During his trial, the State presented

evidence to the jury of three instances of touching. But the jury was 

not told when these alleged instances occurred, only where the 

alleged instances occurred. The State presented evidence of two 

instances of touching that occurred at Nibley Home and one that 

occurred at Falls Apartment.

¶35 The State’s presentation of evidence created tension 

between the evidence and the counts, which were distinguished 

only by date: one count for 2012 and one count for 2014. Because

Baugh lived in both Nibley Home and Falls Apartment in 2014, that 

tension left room for ambiguity. And that ambiguity left room for 

non-unanimity. The jurors could agree that touching occurred in 

2014 but disagree as to whether the specific instance of touching 

occurred at Nibley Home or Falls Apartment. And did the jury’s 

verdict did not eliminate the problem. The jury acquitted Baugh on 

the 2012 count but convicted him on the 2014 count, leaving open

the possibility that the jurors may have disagreed on which specific 

instance of touching the State had proven.

__________________________________________________________

45 See supra ¶ 24.
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Opinion of the Court

12

¶36 The State also declined to connect specific instances of 

touching with a count.46 We have noted that “courts in Utah and 

elsewhere have determined that a unanimity problem can be 

remedied by prosecutorial election.”47 That is, the harm that can 

flow from a lack of a specific unanimity instruction might, in some 

cases, be mitigated if the prosecutor elects, in closing argument, to 

spell out for the jury which alleged actions correspond to which 

charged counts. The absence of prosecutorial election here further 

indicates that reasonable counsel would have been concerned 

about unanimity because there was nothing to mitigate the harm of

erroneous jury instructions.

¶37 The presence of a legal error “does not necessarily mean 

that defense counsel’s failure to object to the error amounted to 

deficient performance.”48 And there is a “wide range of reasonable 

professional assistance.”49 But taking each of the above 

opportunities for jury confusion together, no reasonable attorney 

would have failed to request more specific unanimity instructions.

¶38 Baugh’s counsel was presented with three instances of 

touching that were not specifically attached to the two counts 

charged. And in the State’s closing argument, it told the jury that it 

could fulfill the counts with any two of the alleged instances of 

conduct. This statement suggested to the jury that it could 

__________________________________________________________

46 In criminal cases in which the State has not specified which 

acts it relied on to support each charged count, it may elect to do so 

during trial. See Alires, 2019 UT App 206, ¶¶ 22–23. We call this 

decision prosecutorial election. See State v. Paule, 2024 UT 2, ¶¶ 77–

78, __ P.3d __. For example, in this case, the two counts of sexual 

abuse were not connected to specific acts when charged. They were 

distinguished only by approximate date. The State, in its closing

argument, could have elected to attach one of the three alleged acts 

to a specific count instead of telling the jury that it could choose 

from any of the three alleged acts to satisfy the elements of either 

count. That election might have mitigated the harm flowing from 

Baugh’s counsel’s failure to ask for a specific unanimity instruction. 

But the State declined to make an election, and Baugh, as we 

describe below, was harmed by his counsel’s failure to act.

47 Paule, 2024 UT 2, ¶ 78.

48 State v. Bonds, 2023 UT 1, ¶ 43, 524 P.3d 581.

49 Strickland, 466 U.S. at 689.
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Opinion of the Court

13

impermissibly mix-and-match the instances of touching when 

reaching its verdict. The high risk for non-unanimity was clear.

¶39 Further, there were no circumstances in this case that 

mitigated the risk of a non-unanimous verdict. The evidence for 

each of the instances of touching was fairly equal in persuasive 

force.50 So the evidence was not overwhelmingly stronger for any 

one instance such that any reasonable jury could have only 

convicted on that count.

¶40 And there was no strategic advantage to not requesting 

more specific unanimity instructions. Doing so would not have 

directed the jury to any especially damaging evidence, and failing 

to do so effectively lowered the State’s burden of proof for the 

touching element.51

¶41 Because the risk of a non-unanimous verdict would have 

been clear to reasonable counsel, Baugh’s counsel’s failure to 

request more specific unanimity instructions was objectively 

unreasonable. Therefore, his counsel’s performance was deficient.

II. BAUGH’S COUNSEL’S DEFICIENT PERFORMANCE

PREJUDICED BAUGH

¶42 To prevail on an ineffective assistance of counsel claim, the 

defendant must show that “counsel’s errors actually had an 

adverse effect on the defense,”52 and that there is a “reasonable 

probability that, but for [those] . . . errors, the result of the 

proceeding would have been different.”53 “A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome.”54 It is insufficient “for the defendant to show that the 

__________________________________________________________

50 See Baugh, 2022 UT App 3, ¶ 22.

51 See Alires, 2019 UT App 206, ¶ 25 (explaining that failing to 

request more specific unanimity instructions in the face of a risk of 

a non-unanimous verdict “effectively lower[s] the State’s burden of 

proof”).

52 State v. Beverly, 2018 UT 60, ¶ 30, 435 P.3d 160 (cleaned up).

53 Strickland v. Washington, 466 U.S. 668, 694 (1984); see also State 

v. Grunwald, 2020 UT 40, ¶ 22, 478 P.3d 1 (explaining Strickland’s 

prejudice standard).

54 Strickland, 466 U.S. at 694; see also Grunwald, 2020 UT 40, ¶ 22 

(quoting Strickland, 466 U.S. at 694).
STATE v. BAUGH

Opinion of the Court

14

errors had some conceivable effect on the outcome of the 

proceeding.”55 And “a verdict or conclusion only weakly 

supported by the record is more likely to have been affected by 

errors than one with overwhelming record support.”56

¶43 The State argues that the court of appeals failed to consider 

whether the jury would have convicted absent defense counsel’s 

error. In the State’s view, the court of appeals completed only a

portion of the Strickland prejudice analysis: whether the jury 

convicted Baugh because of counsel’s deficient performance.

¶44 While we acknowledge the court of appeals may not have 

signposted its inquiry as clearly as possible, we are satisfied that 

the court conducted the requisite analysis. And we agree that 

counsel’s deficient performance prejudiced Baugh.

¶45 The court of appeals began its analysis by correctly 

summarizing Strickland’s prejudice standard.57 The court then 

considered the totality of the evidence before the jury. Sasha

testified about three instances of abuse—two occurring at Nibley 

Home and one at Falls Apartment—but distinguished these 

instances only by the location.58 And “[t]he jury instructions 

distinguished the counts, not by location but based on the date of 

the alleged abuse—2012 for count one and 2014 for count two.”59

But in 2012, Baugh lived at both Nibley Home and Falls 

Apartment.60

¶46 So the jury received evidence of the alleged instances of 

touching based only on location but was expected to connect these 

instances of touching to counts distinguished only by date. And 

although only those instances taking place at Nibley Home could 

have been connected to the first count, any of the three alleged 

instances could have been connected to the 2014 count because 

Baugh lived at both Nibley Home and Falls Apartment in 2014. 

Given that the jury acquitted Baugh on the 2012 count and 

__________________________________________________________

55 Strickland, 466 U.S. at 693.

56 State v. Newton, 2020 UT 24, ¶ 31, 466 P.3d 135 (cleaned up).

57 State v. Baugh, 2022 UT App 3, ¶ 20, 504 P.3d 171.

58 Id.

59 Id.

60 Id. ¶ 21.
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Opinion of the Court

15

convicted him on the 2014 count, its verdict didn’t resolve the risk 

that some jurors convicted based on an act that took place at Nibley 

Home, while others convicted based on an act that occurred at Falls 

Apartment.

¶47 Next, the court of appeals considered Baugh’s 

“confessions” and his explanation of them at trial. During the 

investigation, Sasha called Baugh to confront him about the 

abuse.61 The State argues that Baugh admitted to the abuse during 

the call saying, “if you say I did it, then—then I’m sure I did,” and 

“I’m not going to deny it.” Later, during interrogation, the detective 

asked Baugh if he had been abusing Sasha for years, to which he 

replied, “For years[?] Okay. No.” The State paints that as another 

admission. And when asked when he last abused Sasha, Baugh

said it was “at the Nibley [Home].” A third admission, according 

to the State.

¶48 But, as the court of appeals noted, Baugh’s statements 

during the confrontation call and subsequent interrogations do not 

amount to an unequivocal confession.62 During the confrontation 

call, interrogation, and at trial, Baugh maintained that he had not 

abused Sasha. And he offered testimony at trial that his 

“admissions” were simply an attempt to validate his daughter’s 

feelings despite her “getting things mixed up.”

¶49 Finally, the court of appeals considered the State’s closing 

argument, where the prosecutor told the jurors that the “two counts 

can be fulfilled with . . . any two of those experiences” described at 

trial and that “any two of those incidents . . . can be the elements of 

both of these counts.”63

¶50 Reviewing the evidence as a whole, the court of appeals

concluded that its “confidence in the outcome ha[d] been 

undermined.”64 Because the jury was instructed on the counts 

based on the dates of the alleged instances but was only given 

evidence of the counts based on the location of those instances, the 

court reasoned, there was “a reasonable probability that the jurors 

__________________________________________________________

61 See id. ¶ 22.

62 Id. ¶¶ 22–24.

63 Id. ¶ 25.

64 Id. ¶ 26.
STATE v. BAUGH

Opinion of the Court

16

did not agree on which act of alleged abuse supported each 

count.”65

¶51 And, relevant to the State’s claim that the court of appeals 

did not consider whether the jury would have come to a different 

conclusion absent counsel’s errors, the appellate court explained 

that it was not confident that the jury would have come to the same 

conclusion if it had received more specific unanimity instructions.66

And it noted that the evidence presented was not overwhelmingly 

stronger for either of the two counts.67 Further, despite some 

evidence that Baugh had confessed, his explanation of his 

statements created the possibility that a reasonable jury could have 

found his “confession” unconvincing.68 Therefore, the court of 

appeals concluded, it could not “identify one charge on which [it 

could] say with confidence [the jury] would have convicted.”69 As 

such, the court found “a reasonable probability that but for defense 

counsel’s” failure to request more specific unanimity instructions, 

“the proceeding’s outcome would have differed.”70

¶52 The court of appeals applied the correct standard in its 

analysis of the prejudicial effect of counsel’s error, considered the 

totality of the evidence presented at trial, and correctly concluded 

that there was a reasonable probability of a different outcome had 

defense counsel requested more specific unanimity instructions.

CONCLUSION

¶53 In order to succeed on his claim of ineffective assistance of 

counsel, Baugh had to show that his counsel’s performance was 

deficient and that the deficient performance prejudiced him. The 

court of appeals correctly concluded that Baugh made those

showings. Because the risk of non-unanimity was significant, and,

given the state of the law regarding jury unanimity as to elements, 

Baugh’s counsel performed deficiently by failing to request more 

specific unanimity instructions. Further, there was a reasonable 

__________________________________________________________

65 Id. ¶ 21.

66 Id. ¶ 24.

67 Id. ¶ 22.

68 Id.

69 Id. ¶ 24.

70 Id. ¶ 26.
Cite as: 2024 UT 33

Opinion of the Court

17

probability that the jury would not have convicted Baugh had the 

error not occurred. Therefore, we hold that Baugh’s counsel was

ineffective and affirm the court of appeals’ vacation of Baugh’s 

conviction.