2022 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BREVAN BRINGHURST BAUGH,

Appellant.

Opinion

No. 20200178-CA

Filed January 13, 2022

First District Court, Logan Department

The Honorable Angela Fonnesbeck

No. 181100862

Emily Adams, Freyja Johnson, and Cherise M. 

Bacalski, Attorneys for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN

concurred.

MORTENSEN, Judge:

¶1 During its closing argument at Brevan Bringhurst Baugh’s 

trial for two counts of aggravated sexual abuse of a child, the 

State referenced testimony of three instances of alleged abuse. 

But the State then told the jury that “those two counts can be 

fulfilled with . . . any two of those experiences” and that “any 

two of those incidents . . . described . . . can be the elements of 

both of these counts.” The jury rendered a split verdict, and 

Baugh now appeals, contending that defense counsel provided

ineffective assistance for failing to ensure the jury received 

proper instruction regarding unanimity. We agree; accordingly, 
State v. Baugh

20200178-CA 2 2022 UT App 3

we vacate Baugh’s conviction and remand for further 

proceedings consistent with this opinion.

BACKGROUND

¶2 While Baugh lived at the family house from 2012 to April 

2014, his daughter Sasha1 saw a pornographic image of a “hand 

job” Baugh had left “up on the computer.” On another occasion, 

she “walked in on [him] masturbating.” In April 2014, when 

Baugh separated from his wife, Sasha’s mother, Sasha and her 

siblings spent their time with Baugh at his apartment.

¶3 Several years later, while Sasha was visiting Baugh, he 

made a comment to Sasha about her clothing choices, stating 

that even though the clothing choices were inconsistent with 

standards by which they aspired to live, he was otherwise “fine”

with them. The comment upset Sasha, and memories of the past 

started “coming back.” Unsettled by the incident, Sasha reported 

her discomfort to her mother, who then suggested Sasha see a 

therapist. During an ensuing therapy session, Sasha disclosed 

that, years before, Baugh had, on various occasions, forced her to 

touch his penis and give him “hand jobs.”

¶4 The detective who responded to the therapist’s report of 

abuse invited Sasha to conduct a recorded confrontation call “to 

get . . . some type of evidence . . . from” Baugh. But when Sasha 

initially confronted Baugh about the abuse, he denied it and 

asked if she was “misremembering things.” When Sasha 

reminded him that he had taken her aside and apologized, 

Baugh insisted the apology was for her inadvertent exposure to 

pornography, and he stated, “[M]y concern here is that you’re 

putting that together with something . . . about me that didn’t 

happen.”

 

1. A pseudonym.
State v. Baugh

20200178-CA 3 2022 UT App 3

¶5 As Sasha pressed and insisted that the abuse occurred, 

Baugh responded, “Well, what I certainly can’t do is deny that 

and say that you’re absolutely wrong because you get to feel 

however—you—you get to remember it however you remember 

it, and I can’t deny that.” When Sasha pressed further and 

described the abuse in detail, Baugh responded, “[Sasha], that’s 

terrible. And I am very sorry for that. . . . I have no recollection 

of that. I am terribly sorry.” And when pressed again and again, 

Baugh responded, “I am not denying it. . . . And—if you say I 

did it, then—then I’m sure I did. I’m sure I did.” Baugh then 

denied that any abuse occurred at the family house. But Baugh’s

memory of the time period he was living in the apartment was 

fuzzier; he insisted that he “was messed up a lot,” “was doing a 

lot to forget,” and was taking “a lot of medicines to specifically 

try and make [himself] numb” and to make himself “forget the 

trauma” of his separation from Sasha’s mother. “I guess what 

I’m saying,” he continued, “is, if you say it happened, it 

happened . . . and I’m not going to deny it.” He then said,

I would never physically take your hand and put it 

down my pants. If I did that at the [apartment], I 

can, hmm, totally accept that and say, oh, that’s 

awful. . . . And I’ve got—and I’ve got to own that, 

even if I did it while on a whole bunch of 

medications or high on pot or whatever and don’t 

remember it, but I’ve got to own it.

¶6 Shortly after the confrontation call, Baugh was arrested,

and the investigating detective followed up with an 

interrogation. During the interrogation, Baugh conceded that he 

did not deny the accusation of abuse in the apartment but 

attributed his failure to deny to being “out of it” during the time 

he lived at the apartment. Baugh also conceded that Sasha had 

been exposed to pornography but he consistently and repeatedly 

denied the abuse allegations. The interrogation concluded with 

the following exchange:
State v. Baugh

20200178-CA 4 2022 UT App 3

Detective: “Have you had your daughter giving 

you hand jobs for years?”

[Baugh]: “For years. Okay. No.”

Detective: “And when was the last time?”

[Baugh]: “It would be at the [apartment] here is 

what you’re telling me. I’m telling you at the 

[family house].”

The State charged Baugh with two counts of aggravated sexual 

abuse of a child: one count for abuse that allegedly occurred in 

2012 and one count for abuse that allegedly occurred in 2014.

¶7 At trial, Baugh testified that when he told the detective 

that “the last time something sexual happened between” him 

and Sasha was at the family house, he was not referring to any 

abuse but was referring only to the pornography exposure. Even 

though he maintained that no abuse had ever occurred, Baugh 

also explained that he had not disputed Sasha’s claim of abuse at 

the apartment because he “wanted to . . . meet her where she’s at 

and accept her” and provide “support,” and because he wanted 

Sasha “to feel validated” and help her “deal with whatever 

issues she’s going through.” Baugh expressed his reasoning that 

“she’s entitled to feel however she wants to feel, even if she is 

getting things mixed up.” Baugh, however, maintained his 

position—“I didn’t do what she’s accusing me of.”

¶8 Sasha on the other hand testified about three specific 

instances of abuse. She testified that Baugh had made her touch 

and rub his penis on two occasions at the family house—once in 

his bed and once in her bed—and on one occasion at the 

apartment. But nowhere in her testimony did Sasha explain 

specifically when the alleged abuse occurred.

¶9 During closing argument the State said,
State v. Baugh

20200178-CA 5 2022 UT App 3

Now, we haven’t charged everything that we could 

have. We charged two counts. And those two 

counts can be fulfilled with—with any two of those 

experiences, any two of those incidents that she 

described, those can be the elements of both of 

these counts.

Neither the court nor defense counsel took issue with this 

statement. However, the jury instructions informed the jury that 

“[o]pen discussion” could help it “reach a unanimous agreement 

on a verdict.” The instructions also directed the jury that it 

should “[t]ry to reach a unanimous agreement, but only if [it 

could] do so honestly and in good conscience” and that “every 

single juror must agree with the verdict before the defendant can 

be found ‘guilty’ or ‘not guilty.’” And although the instructions 

distinguished the counts based on the date of the alleged 

abuse—2012 for count one, and 2014 for count two—the verdict 

forms required the jury to indicate only whether it unanimously 

agreed that Baugh was “guilty” or “not guilty” for each count 

and not whether it agreed on which instance of alleged abuse 

constituted the crime for which the jury agreed to convict. The 

parties have not identified, and we have not found, anywhere in 

the record where defense counsel requested either specific 

unanimity instructions pertinent to each count or a special 

verdict form requiring the jury to specify which act was linked 

with each conviction.

¶10 The jury then retired to deliberate, but nearly seven hours

into those deliberations—a few minutes after 10:00 p.m.—it 

indicated that it had arrived at an impasse. The court responded 

by orally instructing the jury through the bailiff “to go back and 

keep trying”—recounting the incident for the record only after 
State v. Baugh

20200178-CA 6 2022 UT App 3

the fact.2 And at 11:43 p.m. the jury issued a split verdict, 

acquitting Baugh on one count of aggravated sexual abuse of a 

child in 2012 and convicting him on one count of aggravated 

sexual abuse of a child in 2014. Baugh appeals.

 

2. Through one issue raised on appeal—that we need not 

resolve—Baugh sought relief based on the court’s failure to 

make a contemporaneous record of how the jury was instructed 

when it reported its impasse. In light of this, we note the 

significance of any supplemental instructions and emphasize 

how important it is for the court to record all the instructions the 

jury receives rather than try to recreate the record after the fact. 

Furthermore, we express our concern with the practice of trial 

courts instructing juries without involvement of counsel. Cf.

State v. Johnson, 2016 UT App 223, ¶ 22 n.4, 387 P.3d 1048 (“A 

court is not required to consult counsel before responding to a 

jury’s question by simply referring the jury back to instructions 

already approved by counsel. However, such a course of action 

is risky because the court’s response to a jury question may be 

construed as a new instruction.” (cleaned up)). We also advise

trial courts to refrain from orally communicating with a jury 

through a bailiff and off the record. In this case, had we needed 

to resolve the issue, we would not have had the information 

necessary to do so because, although the trial court attempted to 

reconstruct the record, the court’s summary shed no light on 

what the bailiff actually said to the jurors. Cf. State v. Martinez, 

2021 UT App 11, ¶ 58, 480 P.3d 1103 (Christiansen Forster, J., 

concurring) (“[T]he district court’s failure to record the inchambers discussion with counsel or to memorialize what 

interaction occurred with [the] jury and how [a jury instruction]

was presented to an apparently deadlocked jury did a disservice 

to [the defendant] and his appellate counsel by hampering their 

attempt to re-create that record two years post-trial.”).
State v. Baugh

20200178-CA 7 2022 UT App 3

ISSUE AND STANDARD OF REVIEW

¶11 Baugh contends that defense counsel rendered 

constitutionally “ineffective assistance in failing to ensure that 

the jury was properly instructed regarding unanimity.” In 

particular, Baugh asserts that “[t]he jury was not instructed that 

[it] must unanimously agree as to which of the three alleged 

incidences constituted each [of the two] charged crime[s]” and 

that this failure prejudiced his defense. (Emphasis omitted.) 

“When a claim of ineffective assistance of counsel is raised for 

the first time on appeal, there is no lower court ruling to review 

and we must decide whether the defendant was deprived of the 

effective assistance of counsel as a matter of law.” State v. 

Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).

ANALYSIS

¶12 To prevail on a claim that defense counsel rendered 

ineffective assistance in failing to ensure the jury received proper 

unanimity instruction, Baugh must make a two-part showing. 

See State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350. First, Baugh 

must show that “his counsel’s performance was deficient in that 

it fell below an objective standard of reasonableness,” id.

(cleaned up), that is, “whether, considering all the circumstances, 

counsel’s acts or omissions were objectively unreasonable,” id.

¶ 36. Second, Baugh must show that “the deficient performance 

prejudiced the defense,” id. ¶ 28 (cleaned up), in such a way as 

“to undermine confidence in the outcome of the proceeding”—

i.e., “that the outcome of [the] case would have been different 

absent counsel’s error,” id. ¶ 43 (cleaned up). Here, Baugh has 

carried his burden.

I. Deficient Performance

¶13 Regarding deficient performance, Baugh contends that 

defense counsel’s assistance “fell below an objective level of 
State v. Baugh

20200178-CA 8 2022 UT App 3

reasonableness” when he “did not ensure that the jury was 

instructed that [it] must unanimously agree on which of the 

three alleged instances [of abuse] constituted the criminal act for 

each charge on which [it] convicted [him].” We conclude that 

under the circumstances of this case, it constituted deficient 

performance for counsel to fail to request that the jury receive

proper unanimity instruction through either specific unanimity 

instructions for each count or a special verdict form requiring the 

jury to specify which alleged act was linked with each 

conviction.

¶14 The Sixth Amendment to the United States Constitution;

Article 1, Section 10 of the Utah Constitution; and rule 21(b) of 

the Utah Rules of Criminal Procedure each require “that in 

criminal trials, a jury reach a unanimous verdict.” State v. 

Mendoza, 2021 UT App 79, ¶ 9, 496 P.3d 275; see also Ramos v. 

Louisiana, 140 S. Ct. 1390, 1397 (2020) (discussing the 

applicability of the Sixth Amendment’s unanimity requirement

to criminal trials). Moreover, the “requirement of unanimity is 

not met if a jury unanimously finds only that a defendant is 

guilty of a crime”—instead, the jury must reach “unanimity as to 

each count of each distinct crime charged.” State v. Hummel, 2017 

UT 19, ¶ 26, 393 P.3d 314 (cleaned up). In other words, the jury 

must “agree on a specific criminal act for each charge in order to 

convict.” State v. Alires, 2019 UT App 206, ¶ 22, 455 P.3d 636.3

 

3. The State contests the applicability of State v. Alires, 2019 UT 

App 206, 455 P.3d 636, to this case. Specifically, the State argues 

that Alires does not apply because it was not published until a 

few days after the trial occurred. But the Alires court thoroughly 

identified the established law that should have indicated the 

need for defense counsel in that case to request appropriate 

unanimity instructions. Id. ¶¶ 17–25. The Alires court noted that

“[t]he right to a unanimous verdict in criminal cases is 

(continued...)
State v. Baugh

20200178-CA 9 2022 UT App 3

¶15 In Alires, counsel rendered deficient performance by 

“propos[ing] instructions that did not require the jury to be 

unanimous as to the specific acts supporting each count of 

conviction.” Id. ¶ 17. In that case, the defendant had been 

charged with six counts of aggravated sexual abuse of a child 

against two different children, but the jury heard testimony of at 

least eight instances of such abuse—six against the first child and 

two against the second. Id. ¶ 22. In relation to the six allegations 

involving the first child, the State argued that “the jury could 

convict . . . on four counts based on any of the six alleged 

touches . . . in ‘any combination.’” Id. And in relation to the two 

allegations concerning the second child, “the State did not 

identify which alleged touch . . . related to which count.” Id.

 

(...continued)

guaranteed by Article 1, Section 10 of the Utah Constitution (the 

Unanimous Verdict Clause).” Id. ¶ 18. The court then went on to 

cite State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951 (“The Article 

I, section 10 requirement that a jury be unanimous is not met if a 

jury unanimously finds only that a defendant is guilty of a 

crime.”), and State v. Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314 

(“The Unanimous Verdict Clause requires unanimity as to each 

count of each distinct crime charged by the prosecution and 

submitted to the jury for decision.” (cleaned up)). And based on 

the established law, the Alires court concluded, “Where 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.” Alires, 2019 UT App 206, ¶ 23. 

Accordingly, if the law was well enough established at the time 

Alires was tried, such that the Alires court could determine that 

counsel there performed deficiently in failing to request a proper 

unanimity instruction, the law was also well enough established 

that defense counsel here should have recognized the need to 

request appropriate unanimity instructions.
State v. Baugh

20200178-CA 10 2022 UT App 3

“Once the State failed to elect which act supported each charge, 

the jury should have been instructed to agree on a specific 

criminal act for each charge in order to convict,” id., but counsel 

did not request such an instruction, and “[a]s a result, the jury 

was never instructed that it must unanimously agree that [the 

defendant] committed the same unlawful act to convict on any 

given count,” id. ¶ 23. Accordingly, in that case, “[i]t was 

objectively unreasonable for . . . counsel to propose jury 

instructions that did not require unanimity as to the specific act 

that formed the basis of each count resulting in conviction.”4Id.

¶ 24.

¶16 Likewise, in this case, Baugh faced multiple charges for 

aggravated sexual abuse of a child, but the jury heard testimony 

of more instances of alleged abuse than the State charged. See

supra ¶¶ 6–8. And the instructions “did not require the jury to be 

 

4. Importantly, whether a failure to request a proper unanimity 

instruction results in prejudice will depend on the facts of each 

case. For example, in some circumstances the evidence will be 

such that although the instructions could allow for a mix-andmatch approach, it will be apparent that the jury would have

agreed on a certain act for each count if the need for such 

agreement had been explained to it. See, e.g., State v. Paule, 2021 

UT App 120, ¶¶ 44–45 (holding that unanimity was not a 

concern where the State presented evidence that could support 

multiple bases for an obstruction of justice charge but focused on 

only one of those bases in prosecuting the case). In short, where 

there are multiple criminal acts at issue, the lack of a unanimity 

instruction does not necessarily equal prejudice—the specific 

facts and circumstances of each case and the strength or 

weakness of the evidence will be paramount to determining if 

prejudice has been established. See, e.g., State v. Case, 2020 UT 

App 81, ¶ 26, 467 P.3d 893.
State v. Baugh

20200178-CA 11 2022 UT App 3

unanimous as to the specific acts supporting each count of 

conviction.” See Alires, 2019 UT App 206, ¶ 17.

¶17 As in Alires, nothing in this case conclusively linked the 

allegations to the counts listed in the instructions. While the 

instructions here did link each count with a certain timeframe—

2012 for count one and 2014 for count two—the instructions did 

not link each count with a particular act because nothing the jury 

heard at trial linked any particular act with an associated 

timeframe. Sasha was never asked to explain when the alleged 

abuse occurred, and although she indicated that two instances of 

abuse occurred at the family house and one instance of abuse 

occurred at the apartment, the association between an instance 

of abuse (alleged to have occurred in a specific place) and a 

particular count (alleged to have occurred during a particular 

time) was not established because Baugh lived at both the family 

house and the apartment in 2014. Notably, the jury did not 

convict Baugh on count one, the count associated with 2012,

when Baugh undisputedly lived only at the family house. And 

although the jury convicted Baugh on count two, because Baugh 

lived in both the family house and the apartment in 2014, we 

cannot know which one of the three instances of alleged abuse 

(one of two in the family house or the one in the apartment) was 

the one for which the jury convicted him.

¶18 Further, like the prosecutor in Alires, the State apparently 

sought to use this ambiguity to its advantage by inviting the jury 

to convict on both counts based on the idea that “those two 

counts can be fulfilled with—with any two of those experiences” 

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

both of these counts.” As this court stated in Alires, “Where 

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.” Id. ¶ 23. The prosecutor’s 

comments directly contradicted the basic principles of 
State v. Baugh

20200178-CA 12 2022 UT App 3

unanimity, and defense counsel neglected to request that the 

jury was otherwise properly instructed.

¶19 “[T]he jury [had] to be unanimous as to the specific acts 

supporting each count of conviction.” See id. ¶ 17. And without a 

sufficient link to the actions in the instructions themselves, an 

instruction requiring as much was “critical to ensuring 

unanimity.” See id. ¶ 23. “By failing to require juror unanimity as 

to each underlying act, the instructions—coupled with the 

prosecutor’s closing argument—effectively lowered the State’s 

burden of proof.” See id. ¶ 25. And where defense “counsel bears 

a duty to assist the defendant in reaping the benefits of a jury 

trial and to hold the State to its full and complete burden of 

proof,” such a failure constitutes deficient performance. See State 

v. Mendoza, 2021 UT App 79, ¶ 17, 496 P.3d 275.

II. Prejudice

¶20 Regarding prejudice, Baugh contends that the ambiguity 

in the jury instructions, the dearth of consistent evidence, and 

the State’s invitation for the jury to apply any act to any charge 

all work together to establish a “reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different,” such that our confidence in the 

proceeding’s outcome should be undermined. (Cleaned up.) 

Baugh persuades us on this point, and we determine that 

“consider[ing] the totality of the evidence,” defense counsel’s 

deficient performance has undermined our confidence in the 

proceeding’s outcome. See State v. Alires, 2019 UT App 206, ¶ 27, 

455 P.3d 636 (cleaned up).

¶21 Although Sasha testified about two instances of abuse at 

the family house and one instance of abuse at the apartment, 

Baugh resided in the family house from 2012 until April 2014 

and also resided in the apartment in 2014. Thus, the jury had no 

way of inferring when two of the alleged acts of abuse occurred 

based on where the acts occurred. The jury instructions 
State v. Baugh

20200178-CA 13 2022 UT App 3

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

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

By attempting to link the counts with acts that occurred at a 

particular time but not at a particular location, the unanimity 

that would otherwise have been inherent in the conviction based 

on location was lost when the jury heard no evidence about 

when the alleged abuse occurred. The fact that the jury heard 

nothing specific about when each act occurred creates a 

reasonable probability that the jurors did not agree on which act 

of alleged abuse supported each count. As noted, the jury heard 

allegations that two acts of abuse occurred in the family house 

and one occurred in the apartment. But the jury did not convict 

Baugh on count one, the 2012 count, which occurred when 

Baugh lived only at the family house. And because Baugh lived 

in both the family house and the apartment in 2014, we cannot 

know if the jury agreed that the conviction for count two, the 

2014 count, was for one of the two alleged acts of abuse in the 

family house or the alleged act of abuse in the apartment. It is 

therefore entirely possible that some (but not all) of the jurors 

convicted on count two based on the belief that the alleged abuse 

occurred at the family house, while some other (but not all) 

jurors convicted based on the belief that the abuse occurred at 

the apartment. 

¶22 Further, although the alleged abuse that occurred in the 

apartment had to have occurred in 2014, the evidence of that 

abuse is not so overwhelming that we can conclude that the jury 

must have unanimously agreed on that act—as opposed to an 

alleged act of abuse at the family house—as the basis for its 

conviction on count two for abuse in 2014. See id. (“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.” (cleaned up)). Sasha reported the abuse years after it 

occurred, while Baugh maintained—through the confrontation 

call, the interrogation, and the trial—that no abuse happened in 

the family house and that he had no memory of any abuse at the 
State v. Baugh

20200178-CA 14 2022 UT App 3

apartment. And although the State asserts that Baugh “admitted 

to” the act of abuse in the apartment, it points to no language 

where Baugh expressly admitted the allegations and it instead 

insists that his non-denial is actually an admission. But at trial 

Baugh denied abusing Sasha and testified that he did not deny 

Sasha’s accusations because he wanted to validate his daughter’s 

feelings even though he maintained she was “getting things 

mixed up.” And while the jury was free to disregard his 

explanation, we cannot, on this cold record, conclude that there 

is no reasonable probability that the jury found his explanation 

credible.

¶23 Moreover, we note the State has relied on Baugh’s alleged 

admission both below and on appeal; but importantly, the 

theory of this admission’s origin and significance has changed.

At trial, in support of its claim that Baugh had admitted to 

abuse, the State relied on the exchange at the end of the 

interrogation where Baugh responded to the detective’s question 

about whether he “had [his] daughter giving [him] hand jobs for 

years.” Specifically, the State argued that Baugh’s statement was 

an admission that he had abused Sasha at the family house. On 

appeal, however, the State acknowledges that this statement was 

ambiguous and shifts its focus to Baugh’s failure to deny the 

allegations during the confrontation call as the critical 

admission. 

¶24 But admission or not, the very fact that the State can 

espouse multiple theories regarding the existence of an 

admission demonstrates the potential variability in the way the 

jury could have viewed the evidence—that is, we cannot be 

confident as to how it viewed the evidence including any 

possible admission. Indeed, regarding the failure to deny the 

allegations during the confrontation call, we do not know 

whether the jury believed this was because the abuse actually 

occurred or because Baugh truly was validating Sasha. And 

regarding the interrogation question about whether Baugh had 
State v. Baugh

20200178-CA 15 2022 UT App 3

been abusing Sasha for years, we do not know whether the jury 

understood Baugh’s response to be an admission or whether it

accepted his explanation that any response he gave referred to 

her exposure to pornography. Accordingly, the jurors might 

have attributed different significance to different explanations, 

and given that any admission would also not establish that the 

jury unanimously agreed which act constituted the crime for 

which it convicted, we remain unable to identify one charge on 

which we can say with confidence it would have convicted.

¶25 Finally, we view the State’s invitation to the jury to take 

any allegation and apply it to any count as significantly 

undermining our confidence in the proceeding’s outcome. See id.

¶ 26. The State argued that the “two counts can be fulfilled with 

. . . any two of those experiences” that Sasha described and that 

“any two of those incidents . . . can be the elements of both of 

these counts.” The State openly invited the jury to engage in a 

free-for-all when applying the acts to the counts, and in so 

doing, rejected any theory that the acts that had been testified to 

were specially linked to particular counts based on the timing 

and location of the underlying criminal act. Cf. id. ¶ 30 

(expressing concern with the verdict in part because “[t]he State 

told the jury in closing argument that any of the alleged acts 

against a particular victim could support any of the charges 

relating to that victim”). Following this invitation (an invitation 

that loomed large in the absence of any specific unanimity 

instruction), the jury deliberated over a case with relatively 

simple facts for nearly seven hours before announcing that it had 

arrived at an impasse. The court instructed the jury to keep 

trying, and at 11:43 p.m., over an hour later, the jury returned 

with a split verdict. All this suggests that the jury might have 

struggled with the evidence.

¶26 Accordingly, considering all the circumstances, we see a 

reasonable probability that but for defense counsel’s deficient 

performance, the proceeding’s outcome would have differed—in 
State v. Baugh

20200178-CA 16 2022 UT App 3

other words, under these circumstances our confidence in the 

outcome has been undermined.

CONCLUSION

¶27 Because defense counsel performed deficiently when he

did not request that the jury receive proper unanimity 

instruction, and because this deficiency prejudiced Baugh’s 

defense in such a way that undermines our confidence in the 

proceeding’s outcome, we vacate Baugh’s conviction and 

remand for further proceedings.5

 

5. “Ordinarily, a defendant who prevails on an ineffective 

assistance of counsel claim is entitled to a new trial. But where 

the counts of conviction cannot be distinguished from the counts 

on which the defendant was acquitted, a retrial may be 

prohibited by the Double Jeopardy Clause. We express no 

opinion on the merits of the double-jeopardy issue, which will 

not be ripe unless and until the State seeks a retrial.” Alires, 2019 

UT App 206, ¶ 31 n.7 (cleaned up).