This opinion is subject to revision before final

publication in the Pacific Reporter.

2017 UT 19

IN THE

SUPREME COURT OF THE STATE OF UTAH 

STATE OF UTAH,

Appellee,

v.

JOHN E. HUMMEL,

Appellant.

No. 20130281

Filed April 4, 2017

Sixth District, Panguitch 

The Honorable James R. Taylor

No. 121600018

Attorneys:

Sean D. Reyes, Att‘y Gen., Kris C. Leonard, Asst. Att‘y Gen., 

Salt Lake City for appellee

Gary W. Pendleton, St. George, for appellant 

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and 

JUSTICE HIMONAS joined.

JUSTICE JOHN A. PEARCE became a member of the Court on 

December 17, 2015, after oral argument in this matter, and 

accordingly did not participate. 

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 John Hummel was charged and tried on four counts of 

theft and one count of attempted theft under Utah Code section

76-6-404. All eight jurors found him guilty on all five counts.

There is no dispute in the record on this point. The jury was 
STATE v. HUMMEL

Opinion of the Court

2

polled and all indicated that the verdict as announced was the one 

they voted for.

¶2 Yet Hummel challenges his conviction under the 

Unanimous Verdict Clause of the Utah Constitution. UTAH CONST. 

art. I, § 10.1 He does so on the basis of an alleged lack of unanimity 

as to alternative factual theories advanced by the prosecution in 

support of some of the theft counts against him. Because of an 

alleged lack of record evidence to support some of the 

prosecution‘s theories, Hummel contends that we cannot be 

certain it was unanimous in its verdict. And he urges reversal on 

that basis. Alternatively, Hummel alleges two other sets of trial 

errors as grounds for reversal—in the prosecution purportedly 

changing theories partway through trial and in alleged 

―prosecutorial misconduct.‖

¶3 We affirm. First, we hold that unanimity is not required as 

to theories (or methods or modes) of a crime. Under the text and 

original meaning of the Unanimous Verdict Clause, unanimity is 

required only as to the jury‘s verdict—its determination of guilt, 

or in other words its determination that the prosecution has 

proven each element of each crime beyond a reasonable doubt. 

There is no doubt that the jury was unanimous at that level in this 

 

1 On October 25, 2016, this court requested supplemental 

briefing on the question whether ―the Utah Constitution 

require[s] sufficient evidence on both of two alternative theories 

(or methods or modes) of a crime that are submitted to a jury.‖ 

Suppl. Briefing Order 1, Oct. 25, 2016. In response the State 

asserted that the Due Process Clause of the Utah Constitution 

does not require unanimity as to alternative factual theories 

supporting conviction. State‘s Suppl. Br. passim, Nov. 9, 2016. In 

his reply to the State‘s supplemental brief, Hummel clarified that 

his appeal on this issue rests exclusively on the Unanimous 

Verdict Clause of the Utah Constitution, not the Due Process 

Clause. Reply to State‘s Suppl. Br. at 2–3, Nov. 18, 2016. Our 

analysis is accordingly focused on the Unanimous Verdict Clause;

we do not reach the due process issues alluded to by the State 

because Hummel has not advanced a due process claim.
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Opinion of the Court

3

case. And we affirm on that basis. We also reject Hummel‘s other 

arguments, concluding that his objection to the purported change 

in theories mid-trial was not preserved and that his charges of 

―prosecutorial misconduct‖ fail either on their merits or under 

plain error review.

I. BACKGROUND

¶4 Garfield County does not have a full-time public defender. 

Instead it retains a private attorney to handle all public defense 

cases for a flat annual fee. In 2008 and 2009 the county retained

John Hummel to do its public defense work. 

¶5 Hummel apparently concluded that he could make more 

money if he could convince his would-be public defense clients to 

retain him privately. So he met with a number of these clients

before his formal appointment as public defender. In those 

meetings Hummel tried to persuade these clients to retain him 

privately.

¶6 Jerry Callies was one of the defendants who met with 

Hummel under these circumstances. Callies met with Hummel 

after Callies had applied for court-appointed counsel. A bailiff 

directed Callies to meet with Hummel to discuss Callies‘ 

application. During the meeting Hummel told Callies that he did 

not qualify for appointed counsel. Hummel then suggested that

Callies retain him and pay him as his private lawyer. 

¶7 Hummel told the imprisoned Callies that if Callies would 

sign over his guns and pay $2,500, Hummel would get him out of 

prison that day. He also warned that if Callies did not hire 

Hummel, Callies would spend thirty more days in prison and 

might even face additional charges. Callies relented. He gave 

Hummel his firearms and signed a promissory note for $2,500 in 

exchange for representation. 

¶8 Callies also alleges that Hummel asked him to fill out a 

new application for appointment of counsel and to list an inflated 

income amount in order to guarantee that Hummel would not be 

appointed as counsel. At trial, there was conflicting evidence as to 

whether Hummel was in fact appointed as Callies‘ counsel (a 

minute entry suggested that Hummel was appointed, while a 
STATE v. HUMMEL

Opinion of the Court

4

recommendation by the county attorney that Callies be denied 

counsel cuts the other way). 

¶9 John Burke was a second would-be public defense client 

who met with Hummel. Hummel met with Burke after Burke had 

been charged with various drug and weapons charges. After 

filling out an application for court-appointed counsel, Burke gave 

the application to Hummel, believing that Hummel was in charge 

of the paperwork. During the meeting, Hummel mentioned that 

Burke, who had been in court before, must ―know how courts are 

about public defenders.‖ Hummel also indicated that he would be 

able to ―better represent [Burke]‖ if Burke paid Hummel $5,000. 

After this conversation, Burke‘s father agreed to a $2,500 charge to 

his credit card. Hummel suggested he would work out a plan for 

payment of the remaining $2,500. 

¶10 Scotty Harville and Joe Sandberg also met with Hummel. A 

judge had told them both that they qualified for counsel. Yet 

Hummel told them that ―it would look better‖ in court if they 

hired private counsel rather than rely on the work of a public 

defender. He also said they had a ―better chance‖ of getting out of 

jail and avoiding further jail time if they retained him privately. 

Hummel convinced both Harville and Sandberg to sign 

promissory notes, which, Hummel claimed, would ―make it seem 

as though‖ they ―had retained him as private counsel.‖ Hummel 

indicated that he would never try to collect on the promissory

notes. He also suggested that Harville sign over to Hummel the 

weapons seized upon Harville‘s arrest to avoid facing further 

charges related to the weapons. 

¶11 John Spencer was the last of the would-be public defense 

clients at issue in this case. Spencer met with Hummel after 

completing his application for court-appointed counsel. Hummel

asked Spencer for collateral in return for Hummel‘s services. And 

Spencer agreed—at Hummel‘s urging—to sign over multiple 

firearms to Hummel as collateral. As with Callies, a minute entry 

suggested that Hummel had in fact been appointed to represent 

Spencer.

¶12 Hummel admitted that he removed the applications for

court-appointed counsel prepared by four of these clients—Burke, 
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Opinion of the Court

5

Harville, Sandberg, and Spencer—from the desk of the court 

clerk. When questioned by the clerk about his actions, Hummel 

stated that he had destroyed the applications ―because the men 

would not qualify for the public defender.‖ 

¶13 Hummel acquired the following property as a result of this 

scheme: at least $2,500 cash, $15,000 worth of written or oral 

promises, and eight firearms. 

¶14 One of Hummel‘s clients eventually filed a complaint with 

the County Attorney‘s Office. An investigation ensued. Hummel 

was subsequently charged with theft under Utah Code section 76-

6-404. 

¶15 The case eventually proceeded to trial. At trial the 

prosecution advanced distinct theories of Hummel‘s theft under 

the various counts against him—different ways in which Hummel 

was alleged to have ―obtain[ed] or exercise[d] unauthorized 

control over the property of another with a purpose to deprive 

him thereof‖ under Utah Code section 76-6-404. The prosecution‘s 

distinct theories were reflected in the jury instructions. On four of 

the counts the prosecution asserted that Hummel had committed 

theft (or attempted theft) by ―engaging in a deception, or by 

engaging in an extortion.‖2 On the fifth count, the one involving 

Spencer, the prosecution claimed only that Hummel had obtained 

the property ―by deception.‖

¶16 The jury instructions further described ways that the jury 

could find that Hummel had committed theft by ―deception‖ or

―extortion‖—they listed means by which the elements of the 

crime of theft could be satisfied. In the instructions the jury was 

 

2 The count involving Sandberg was for attempted theft, given 

that Hummel did not actually acquire Sandberg‘s property. On 

the attempted theft charge the jury instruction spoke of 

―attempt[ing] to obtain or exercise‖ rather than ―obtain[ing] or 

exercis[ing].‖
STATE v. HUMMEL

Opinion of the Court

6

presented with four ways that Hummel could have extorted his 

victims3 and three ways that he could have deceived them.4

¶17 The jurors were not required to reach unanimity on any 

particular theory. But they were instructed that unanimity was 

required as to the determination that a theft had occurred. The 

relevant jury instruction on unanimity read as follows: ―It is not 

necessary that all of you agree upon a particular alternative, only 

that all of you do agree that a theft under one of the alternatives 

did occur.‖ Jury Instruction No. 13. 

¶18 The jury convicted Hummel on all five counts, and he now 

appeals. He raises four arguments. First, Hummel contends that

the jury should have been required to unanimously agree on theft 

by deception or extortion for the counts where both theories were 

presented. Second, he asserts that the evidence was insufficient to 

support a guilty verdict on all counts. Third, Hummel claims that 

the prosecution ran afoul of article 1, section 12 of the Utah 

Constitution by changing the theories of theft presented to the 

 

3 The listed means of extortion were as follows:

(1) ―threaten[ing] to subject the alleged victim to physical 

confinement or restraint,‖ (2) ―threaten[ing] to . . . take action as 

an official against the alleged victim,‖ (3) ―threaten[ing] to . . . 

withhold official action related to the victim,‖ or (4) ―threaten[ing]

to . . . cause such action or withholding of action.‖ 

4 The listed means of deception were as follows: (1) ―creat[ing] 

or confirm[ing] by words or conduct an impression of law or fact 

that [was] false,‖ which Hummel did not believe to be true, and 

that was likely to affect the judgment of another in the transaction, 

(2) ―fail[ing] to correct a false impression of law or fact that 

[Hummel] previously created or confirmed by words or conduct 

that [was] likely to affect the judgment of another and that 

[Hummel] does not now believe to be true,‖ or (3) ―prevent[ing] 

another from acquiring information likely to affect his judgment 

in the transaction.‖ For the count that offered only a theory of 

theft by deception, only the latter two sub-theories were presented 

to the jury.
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Opinion of the Court

7

jury, in a manner preventing Hummel from knowing what crimes 

he was accused of and from mounting an appropriate defense. 

Fourth, he claims that prosecutorial misconduct tainted the 

verdict and violated his right to due process. We reject each of 

these arguments and affirm. 

II. UNANIMOUS VERDICT CLAUSE

¶19 In Utah there is a single crime of ―theft.‖ UTAH CODE § 76-6-

403. In enacting this theft provision the legislature combined a 

variety of ―separate offenses,‖ such as embezzlement, false 

pretense, extortion, and blackmail, into what now constitutes ―a 

single offense.” Id.5 The elements of that crime are simple and 

straightforward. A person commits theft if he ―obtains or 

exercises unauthorized control over the property of another with 

a purpose to deprive him thereof.‖ Id. § 76-4-404 (stating these 

elements in a section titled ―Theft-Elements‖). Our law lists 

 

5 See also State v. Taylor, 570 P.2d 697, 698 (Utah 1977) (―The Utah 

theft statute consolidates the offenses known under prior law as 

larceny, embezzlement, extortion, false pretenses, and receiving 

stolen property into a single offense entitled theft, and clearly 

evidences the legislative intent to eliminate the previously 

existing necessity of pleading and proving those separate and 

distinct offenses. All that is now required is to simply plead the 

general offense of theft and the accusation may be supported by 

evidence that it was committed in any manner specified in 

sections 404 through 410 of the Code . . . .‖ (footnotes omitted)); 

Paul N. Cox, Note, Utah’s New Penal Code: Theft, 1973 UTAH L. REV. 

718, 733 (1973) (observing that the Utah legislature consolidated 

extortion, larceny, false pretenses, and several other property 

offenses into one single crime of theft; and noting that ―[t]he 

complex technical distinctions among offenses against property 

and resulting procedural reversals of criminal convictions gave 

rise to a . . . movement to eliminate these distinctions through 

substantive consolidation‖).
STATE v. HUMMEL

Opinion of the Court

8

common means by which those elements may be fulfilled.6 It does 

so by setting forth ways that one may exercise unauthorized 

control over the property of another, as in different means by 

which one may engage in extortion or deception. See id. §§ 76-6-

405 to -406. But these provisions set forth only non-exhaustive 

examples. They describe illustrative ways that the single crime of 

theft may be committed.7 So the once separate offenses of theft by 

extortion and theft by deception are now just manners by which 

one commits the single offense of theft.

¶20 Sections 405 and 406 hammer this point home. In section 

405 we learn that ―a person commits theft‖ (another indication 

this is the single crime) ―if the person obtains or exercises control 

over property of another person: (i) by deception; and (ii) with a 

purpose to deprive the other person of property.‖ Id. § 76-6-405

(emphasis added). And this section then goes on to identify what 

does and doesn‘t count as deception. Section 406 is similar. It says 

that ―[a] person is guilty of theft if he obtains or exercises control 

over the property of another by extortion and with a purpose to 

deprive him thereof,‖ and also proceeds to identify prohibited 

means of extortion. Id. § 76-6-406 (emphasis added). 

¶21 Theft by deception and theft by extortion are not and 

cannot logically be separate offenses. If they were, Hummel could 

 

6 ―An accusation of theft may be supported by evidence that it 

was committed in any manner specified in Sections 76-6-404 

through 76-6-410.‖ UTAH CODE § 76-6-403 (emphasis added).

7 A defendant could hardly escape a theft charge by admitting 

he ―obtain[ed] or exercise[d] unauthorized control over the 

property of another with a purpose to deprive him thereof‖ but 

insisting that he didn‘t do so in any of the specific manners set 

forth in sections 405 through 410. (A pickpocket, for example, is 

still guilty of theft even if pickpocketing is not expressly set forth 

as a manner of committing theft.) Thus, section 404 sets the 

general elements of the crime of theft and sections 405 through 

410. identify exemplary (non-exclusive) ways of fulfilling those 

elements.
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Opinion of the Court

9

be charged in separate counts and be convicted on both. That 

cannot be. When Hummel took money or property from a client, 

he may have both deceived and extorted the client. But he only 

committed one act of theft (just like the murderer who both 

poisons and suffocates the same victim has committed only one 

murder). This is why Hummel‘s counts are defined by victim, and 

not theory or manner of committing theft.

¶22 Nothing in the record on appeal suggests that the jury was 

less than unanimous in its decision to convict Hummel of theft.

Nor is there any basis for finding a lack of unanimity as to the 

elements of theft in section 76-6-403. 

¶23 Yet the jury was not given a special verdict form. It was

asked to return only a general verdict. So we cannot tell from the 

record which of the prosecution‘s various theories the jury may 

have relied on, or whether it was unanimous as to which theory it 

accepted. And this uncertainty is the focus of Hummel‘s 

unanimity argument on appeal. He asserts that unanimity was 

required as to which of the prosecution‘s various theories of theft 

was accepted by the jury. And he also claims that evidence of at 

least some of those theories was lacking—a point he advances as a 

distinct (if related) basis for reversal. 

¶24 We affirm. First, we conclude that our precedent does not

support the requirement of unanimity or sufficiency of the

evidence for alternative, exemplary means of committing a crime. 

With that conclusion in mind, we take a fresh look at our law of 

unanimity in light of the text and historical understanding of the 

Unanimous Verdict Clause. Because there is no textual, historical, 

or logical basis for a requirement of unanimity or sufficiency of 

the evidence as to alternative means of committing a crime, we 

conclude that the Utah Constitution imposes no such 

requirement. And we accordingly hold that there is no basis for 

reversal on the record before us on this appeal.

A. Utah Supreme Court Precedent on Unanimity

¶25 The Unanimous Verdict Clause requires that ―[i]n criminal 

cases the verdict shall be unanimous.‖ UTAH CONST. art. I, § 10. At 

its most basic level, this provision requires the full concurrence of 

all empaneled jurors on their judgment as to the criminal charges 
STATE v. HUMMEL

Opinion of the Court

10

submitted for their consideration. That is the jury‘s function—to 

render a verdict on the defendant‘s guilt on the charges presented 

for their deliberation. And a non-unanimous verdict has long 

been viewed as an invalid one. If there are holdouts on the 

appropriate verdict, the result is a mistrial. See, e.g., State v. Moore,

126 P. 322, 323 (Utah 1912) (noting that a trial ―resulted in a 

mistrial for the reason that the jury was unable to agree upon a 

verdict‖).

¶26 The implications of this constitutional requirement do not 

stop there. The article I, section 10 requirement of unanimity ―is 

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

of a crime.‘‖ State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951 

(plurality opinion) (emphasis added). 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. 

So a generic ―guilty‖ verdict that does not differentiate among 

various charges would fall short. See also infra ¶ 54 (citing an 1859 

Maryland case in which the court refused to accept a verdict of 

―guilty‖ of murder in a circumstance in which the jury was 

required to also determine the precise degree of murder

involved). 

¶27 For similar reasons, a verdict would not be ―valid if some 

jurors found a defendant guilty of robbery while others found 

him guilty of theft, even though all jurors agree that he was guilty 

of some crime.‖ Saunders, 1999 UT 59, ¶ 60. There is no such thing 

as an omnibus ―crime‖ in Utah. Our crimes are set out distinctly 

in our law, with different elements and distinct punishments for 

each offense. So a verdict of ―guilty of some crime‖ would not tell 

us whether the jury was unanimous in finding guilt on any 

individual crime. And the verdict would fall short on that basis. 

¶28 The same goes for the notion that a verdict would not ―be 

valid if some jurors found a defendant guilty of 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 found him guilty of 

the elements of the crime of robbery.‖ Id. These are distinct 

counts or separate instances of the crime of robbery, which would 
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Opinion of the Court

11

have to be charged as such.8 So we have also concluded that 

―[j]ury unanimity means unanimity as to a specific crime.‖ Id.

¶29 We have also said that ― ̳a jury must be unanimous on all 

elements of a criminal charge for [a] conviction to stand.‘‖ State v.

Johnson, 821 P.2d 1150, 1159 (Utah 1991). If there is a holdout on 

the jury on one of the essential elements of one of the crimes 

charged, there is necessarily a lack of unanimity on the question of 

the defendant‘s guilt. So if the verdict indicates a lack of 

unanimity on one of the essential elements of a charged crime, 

there will also be a basis for a reversal under the Unanimous 

Verdict Clause.

¶30 All of the above is well-established in our law. But 

Hummel asks us to take our statements in Saunders and Johnson a 

substantial step further. He asks us to view our cases as 

establishing a requirement that each ―theory‖ presented to the 

jury be supported by sufficient evidence. The scope of the term 

theory is not entirely clear from the briefing. But it appears to 

encompass all methods, modes, or manners by which a defendant 

is accused of committing a crime.9 We find no basis for this 

 

8 See, e.g., State v. Thompson, 87 P. 709, 710 (Utah 1906) (―Every 

information or indictment, to be adequate, must allege a day and 

year on which the offense was committed. It is inadequate to 

charge an offense committed at some indefinite time between two 

specified days.‖); State v. Hoben, 102 P. 1000, 1006 (Utah 1909)

(―The record here shows two separate and distinct offenses, and 

two separate and distinct transactions. Two separate and distinct 

offenses were testified to by the prosecutrix and proven by the 

state. One was committed on the 1st day of April, 1906, when the 

prosecutrix became pregnant, and the other along about the 1st of 

November, 1905. It was with respect to the offense of April, 1906, 

and to the transactions out of which it arose, that the defendant 

was given his constitutional privilege of a preliminary hearing.‖).

9 Hummel‘s arguments are not even limited to the distinct 

theories of theft set forth in the exemplary provisions of the Utah 

Code—to theft by extortion or theft by deception. In assessing the 

sufficiency of the evidence to support the prosecution‘s theory of 

(continued...)
STATE v. HUMMEL

Opinion of the Court

12

requirement in our precedent. We have never required 

unanimity—or sufficient evidence—on alternate manners or 

means of fulfilling an element of a crime. Instead, Johnson and the 

cases it relied on required sufficient evidence on alternate elements

of a crime as defined in our law. Our cases have used loose, broad 

language—referring to unanimity as to ―theories‖ or ―methods, 

modes, or manners‖ of committing a crime.10 But we have never 

required unanimity or sufficient evidence on anything other than 

an element—or alternative element—of a crime.

¶31 Johnson involved alternate elements of the crime of 

attempted aggravated murder. By statute, attempted aggravated 

murder requires proof that the defendant attempted to cause the 

death of another intentionally or knowingly and that one of 

several aggravating circumstances was established. UTAH CODE 

§ 76-5-202. In Johnson the prosecution alleged two aggravating 

circumstances—―(i) attempting to kill by administration of oxalic 

acid, which was either (a) a  ̳poison‘ or  ̳a lethal substance‘ or (b)  ̳a 

substance administered in lethal amount, dosage or quantity‘; or 

(ii) attempting to kill  ̳for the purpose of pecuniary or other 

personal gain.‘‖ Johnson, 821 P.2d at 1158 (quoting UTAH CODE 

§ 76-5-202(1)(n) & (f) (1990)). Because ―the State failed to prove 

either that oxalic acid is a poison or a lethal substance or that 

Johnson administered or attempted to administer a quantity of the 

acid that would have been lethal,‖ the Johnson court found a 

unanimity problem with the verdict. Id. It reversed the aggravated 

attempted murder conviction without considering the sufficiency 

of the evidence on the other statutory aggravator—attempting to 

 

theft, Hummel also analyzes sub-theories. He asks not whether 

there was sufficient evidence to support a theory of theft by 

extortion, but whether there was sufficient evidence to support 

the separate means by which the prosecution argued that theft by 

extortion was committed. That exacerbates the line-drawing 

problem introduced by Hummel‘s position.

10 See Johnson, 821 P.2d at 1159 overruled in part on other grounds 

by State v. Crank, 142 P.2d 178 (Utah 1943); State v. Tillman, 750 

P.2d 546, 563 (Utah 1987) (plurality opinion); State v. Russell, 733 

P.2d 162, 165 (Utah 1987).
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Opinion of the Court

13

kill for pecuniary or other personal gain. And it based that 

decision on the Unanimous Verdict Clause.

¶32 The problem in Johnson was rooted in the jury‘s entry of 

only a general verdict. ―No special verdicts were given that would 

indicate upon which aggravating circumstance the jury based the 

conviction.‖ Id. at 1159. And because the court ―has stated that a 

jury must be unanimous on all elements of a criminal charge for the 

conviction to stand,‖ the Johnson court held that reversal was 

required ―if the State‘s case was premised on more than one 

factual or legal theory of the elements of the crime and any one of 

those theories is flawed or lacks the requisite evidentiary 

foundation.‖ Id. (emphasis added). But the Johnson court‘s 

subsequent analysis of sufficient evidence was only on the 

alternative elements of the crime, not anything below that level, 

such as theories or modes. So its broader language must be read 

in light of what it said elsewhere, and what it actually did—

merely require sufficient evidence on both alternative elements, 

nothing more.

¶33 The Johnson opinion cannot sustain the broad reading 

Hummel gives it. Johnson in no way requires sufficient evidence 

on every method or means of fulfilling each individual element of 

each crime in question. It imposes that requirement only for ―all 

elements of a criminal charge.‖ Id. 

¶34 Johnson‘s predecessors are along the same lines. The 

plurality in State v. Tillman required unanimity on—and sufficient 

evidence to support a verdict on—the alternative elements of the 

crime of first-degree murder. 750 P.2d 546, 562–68 (Utah 1987) 

(plurality of the court requiring unanimity as to which of two 

aggravating circumstances was established—specifically, whether 

defendant intentionally caused the victim‘s death while engaged 

in the commission of (a) burglary or attempted burglary, or (b) 

arson or attempted arson). Our other cases are similar.11

 

11 The other two cases on point are State v. Russell, 733 P.2d 162

(Utah 1987), and State v. Johnson, 287 P. 909 (Utah 1930) overruled 

in part on other grounds by State v. Crank, 142 P.2d 178 (Utah 1943). 

(continued...)
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Opinion of the Court

14

 

Russell raised the question whether unanimity was required as to 

which of three alternative mental states for second-degree murder 

was proven beyond a reasonable doubt—―intentionally or 

knowingly‖ causing death; intending to cause ―serious bodily 

injury‖ and causing death by an act clearly ―dangerous to human 

life‖; and causing death in circumstances evidencing ―depraved 

indifference to human life.‖ Russell, 733 P.2d at 164. The court was 

splintered. The lead opinion (of Justice Howe, joined by Justice 

Hall) concluded that unanimity was not required at this level, 

asserting that ―[t]he decisions are virtually unanimous that a 

defendant is not entitled to a unanimous verdict on the precise 

manner in which the crime was committed.‖ Id. at 165. Justice 

Stewart concurred in the result and wrote separately. He 

indicated his view ―that it would have been preferable for the trial 

judge to give an instruction on unanimity as to the defendant‘s 

mens rea,‖ but concluded that ―the fundamental principle of jury 

unanimity was [not] violated in this case.‖ Id. at 169. Justice 

Durham also concurred in the result and authored an opinion. She 

indicated that she would require unanimity except where ―(1) a 

single crime has been charged, even though it may be committed 

in alternative ways or by alternative but related acts, (2) those acts 

are not substantially distinct from each other in terms of either 

their legal, factual, or conceptual content, and (3) the State has 

presented substantial evidence supporting each alternative mode 

of commission of the crime.‖ Id. at 176. Yet she voted to affirm 

because she found these conditions to be met. Id. at 178 

(concluding that the three alternative mens rea elements arise 

under ―a single offense,‖ that the three alternative elements were 

―significantly distinct from one another in terms of their legal or 

factual content,‖ and there was sufficient ―evidence on each of the 

three alternatives‖). Justice Zimmerman concurred only in the 

result, without opinion. Id. at 178.

Thus, Russell also stopped short of resolving the question in this 

case. Like Tillman, Russell involved not distinct ―theories‖ in the 

sense of merely different manners of fulfilling an element of a 

crime, but different alternative elements of a crime. And there was 

no majority view on the standard for assessing the constitutional 

requirement of unanimity as to such alternative elements.

(continued...)
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Opinion of the Court

15

¶35 Thus, the sufficiency of evidence requirement pushed by 

Hummel is by no means clearly established. Our past cases have 

invoked this principle only in the context of alternative elements of 

 

Lastly, in the earlier Johnson case the court reversed an 

involuntary manslaughter conviction where there was insufficient 

evidence to support one of the alternative elements for satisfying 

the unlawful act requirement of the statute. 287 P. at 911–12; see 

also State v. Rasmussen, 68 P.2d 176, 182 (Utah 1937) (plurality 

opinion) (identifying the unlawful acts requirement of the 

manslaughter statute as involving ―several elements . . . any one 

of which properly pleaded and proved would support a [guilty] 

verdict‖); State v. Roedl, 155 P.2d 741, 747 (Utah 1945) (discussing 

Rasmussen and reiterating that an ―unlawful act[]‖ was one of the 

―necessary elements to be proved beyond a reasonable doubt in 

proving the crime of involuntary manslaughter and the finding of 

a verdict of guilty by the jury‖).

In 1928, our law defined involuntary manslaughter as ―the 

unlawful killing of a human being without malice . . . in the 

commission of an unlawful act not amounting to a felony, or in 

the commission of a lawful act which might produce death, in an 

unlawful manner or without due caution and circumspection.‖ 

UTAH CODE § 103–28–5 (1928). Like the aggravating circumstance 

element of aggravated murder, the element requiring a killing ―in 

the commission of an unlawful act‖ is subject to the requirement 

of unanimity, but that element may be proved by reference to any 

number of statutory violations. The information in Johnson

asserted several alternative unlawful acts not amounting to a 

felony, including driving while intoxicated and a variety of traffic 

infractions. Johnson, 287 P. at 910. The defendant contended that 

there was insufficient evidence to support a finding that he was 

driving while intoxicated and the court agreed. Id. at 911–12. 

Because the jury had rendered only ―a general verdict of guilty  ̳as 

charged in the information,‘‖ the court could not determine 

whether there had been unanimity on the unlawful act element. 

Id. at 912. Accordingly, the court reversed the conviction. Id.

Contrary to Hummel‘s assertion, the earlier Johnson case only 

strengthens our conclusion that unanimity is required only as to 

elements of an offense.
STATE v. HUMMEL

Opinion of the Court

16

a crime. We have never extended this principle to proof of

alternative means of fulfilling an element of a crime. 

B. The Unanimous Verdict Clause

¶36 Our precedents in this field are entitled to a measure of 

respect. ―Stare decisis  ̳is a cornerstone of Anglo-American 

jurisprudence.‘‖ Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 

553 (citation omitted). It ―is crucial to the predictability of the law 

and the fairness of adjudication.‖ Id. (citation omitted).

¶37 Yet the presumption of preserving our past holdings is a 

rebuttable one. The ―presumption against overruling precedent is 

not equally strong in all cases.‖ Id. at ¶ 22. We have identified 

circumstances in which we may properly repudiate the standards 

in our prior decisions, as where the standard we have adopted has 

become unworkable over time, in a manner that sustains no

significant interest of reliance on our decisions. See id. (observing 

that ―how firmly precedent has become established . . . 

encompasses a variety of considerations, including . . . how well it 

has worked in practice, . . . and the extent to which people‘s 

reliance on the precedent would create injustice or hardship if it 

were overturned‖).

¶38 In all events, the principle of stare decisis is focused on 

holdings of our prior decisions. Our law has long recognized a 

significant distinction between holding and dicta. See Spring 

Canyon Coal Co. v. Indus. Comm'n of Utah, 277 P. 206, 210 (Utah 

1929) (―Dictum is not embraced within the rule of stare decisis.‖).

Thus, we retain even greater flexibility on points of law reflected 

only in the broad dicta of our prior decisions. See Eldridge, 2015 

UT 21, ¶ 32 (suggesting a relaxed standard for repudiation of 

dicta, noting that ―we would follow even . . . dicta if we had no 

good reason to do otherwise‖).

¶39 That is where we stand on the question in this case. We 

have never squarely decided whether the Unanimous Verdict 

Clause requires unanimity on different means of fulfilling the 

elements of a crime, much less whether any such requirement 

should also sustain a requirement of sufficient evidence on each 

such means presented to the jury. This is an important issue. 

Absent a square holding resolving it, we return to first 
Cite as: 2017 UT 19

Opinion of the Court

17

principles—to the text and original meaning of the constitution.

And we affirm.

¶40 First, there is nothing in the language or history of the 

Unanimous Verdict Clause to support the requirement of 

unanimity on, or sufficient evidence of, alternative means of 

fulfilling the elements of a crime. The constitution requires 

unanimity only as to the ―verdict,‖ and that guarantee has long 

been understood to be limited to the matters submitted to the jury 

for decision (as to the defendant‘s guilt). So we interpret the Utah 

Constitution in line with this understanding, and affirm on the 

ground that there is no relevant unanimity problem on the record 

before us on this appeal.

¶41 Second, there is no logical connection between the 

constitutional guarantee of a unanimous verdict and the judicially 

imposed requirement of sufficient evidence to support alternative

theories advanced by the prosecution. If anything the existence of 

sufficient evidence to sustain alternative theories would heighten

the risk of a lack of unanimity. See infra ¶¶ 77–79. And if we were 

serious about requiring unanimity as to alternative means of 

fulfilling an element of a crime, we would not examine the 

sufficiency of the evidence; we would require a special verdict 

form. Our longstanding refusal to do so underscores the fact that 

the sufficiency of the evidence requirement is not a component of 

the constitutional guarantee of unanimity. This suggests that it 

would be improper to extend Johnson for this reason as well. We 

may have reason to respect the Johnson decision as a matter of

stare decisis; but there is no basis for extending it further.

¶42 Finally, there is tension between the principle advanced by 

Hummel and longstanding caselaw on harmless error. The 

operative principle in these parallel cases goes to the appellant‘s 

burden of persuasion on appeal. That burden has long been 

understood to encompass an obligation to prove not only error but 

prejudice. The converse principle is known as the doctrine of 

harmless error. It holds that we reverse a judgment on appeal 

only if an error is shown to have likely made a difference in the 

lower court. And it yields the benefit of the doubt on that question 

to the appellee—or in other words to the outcome in the lower 

court. Hummel‘s reading of the Unanimous Verdict Clause is in 
STATE v. HUMMEL

Opinion of the Court

18

substantial tension with this doctrine. Allowing an appellant to 

overturn a verdict based only on a showing of insufficient 

evidence to support an alternative means of establishing an 

element of a crime is problematic. It effectively suspends the 

requirement that an appellant establish not just error, but 

prejudicial error. And it does so by yielding the benefit of the 

doubt to the appellant—by holding that because we can‘t be sure 

there was unanimity where there is a lack of evidence on 

alternative means of proving an element of a crime, we should 

reverse and remand for a new trial.

1. Text and Original Meaning

¶43 In adopting the Unanimous Verdict Clause, the framers of 

our Utah Constitution indicated their intent to memorialize a 

―well[-]understood, definite, common-law‖ principle. 1 UTAH 

CONVENTION DEBATES 494 (1895). We therefore interpret this 

provision in a matter in line with this historical understanding. 

And we reject the requirement of unanimity as to alternative 

means of fulfilling an element of a crime. We affirm here because 

the jury was unanimous on its verdict—on all matters submitted to 

it for decision.

a. Historical principles of unanimity

¶44 The requirement of a unanimous jury has common law 

origins. At common law, ―the truth of every accusation‖—of any 

criminal charge in an ―indictment‖ or ―information‖—had to ―be 

confirmed by the unanimous suffrage of twelve of [the 

defendant‘s] equals and neighbors.‖ 4 WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND 343 (1769). This was an 

essential feature of the common law right to a jury trial at the time 

of the founding of our state Constitution. ―A trial by jury [wa]s 

generally understood to mean . . . a trial by a jury of twelve men, 

impartially selected, who must unanimously concur in the guilt of 

the accused before a legal conviction c[ould] be had.‖ 2 JOSEPH 

STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED 

STATES 559 n.2 (5th ed. 1891) (emphasis added).

¶45 Yet the requirement of unanimity went no further than 

that. Unanimity was required ―on the point or issue submitted to 

the[] jury.‖ ARCHIBALD BROWN, A NEW LAW DICTIONARY AND 
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Opinion of the Court

19

INSTITUTE OF THE WHOLE LAW 377 (1874). And the point or issue 

submitted to the jury was purely a matter of guilt. Jurors were 

asked only to render a decision on the criminal charges 

presented—to enter a verdict of ―guilty‖ or ―not guilty‖ on each 

charge submitted for their deliberation. So ―jurors [we]re not 

obliged to agree in the reason for finding a verdict as it is found; 

and if a reason be given by one or more of them, upon a question 

being asked by the judge, for finding it as it is found, this [wa]s 

not to be considered or recorded as part of the verdict.‖ 7 

MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW 8 (5th ed.

1798).

¶46 The Unanimous Verdict Clause articulates this same 

principle. It does so by requiring that ―the verdict shall be 

unanimous‖ in criminal cases. UTAH CONST. art. I, § 10 (emphasis 

added). By law and longstanding practice, the jury‘s verdict is 

simply its determination of guilt or innocence. See, e.g., State v. 

Creechley, 75 P. 384, 384 (Utah 1904) (―A verdict upon a plea of not 

guilty shall be either  ̳Guilty‘ or  ̳Not guilty.‘‖ (citation omitted)).

¶47 A verdict consists of the jury‘s decision on the matters 

submitted to it for decision.12 In criminal cases the jury generally 

is charged only with determining the defendant‘s guilt on the 

 

12 See WILLIAM C. COCHRAN, THE STUDENTS‘ LAW LEXICON: A

DICTIONARY OF LEGAL WORDS AND PHRASES 266 (1888) (defining 

verdict as ―the decision of a jury reported to the court, on the 

matters submitted to them on the trial of a cause‖); HENRY 

CAMPBELL BLACK, DICTIONARY OF LAW 1216 (1891) (defining verdict 

as the ―formal and unanimous decision or finding of a jury, 

impaneled and sworn for the trial of a cause, upon the matters or 

questions duly submitted to them upon the trial‖); J. KENDRICK 

KINNEY, A LAW DICTIONARY AND GLOSSARY 683 (1893) (defining 

verdict as ―the finding of a jury as to the truth of matters of fact 

submitted to them for trial‖).
STATE v. HUMMEL

Opinion of the Court

20

counts presented at trial.13 Other matters, such as sentencing, 

generally are submitted to the trial judge for decision. 

¶48 As a general rule, juries are asked to drill no deeper than a 

judgment of conviction or acquittal. This is the essence of a 

general verdict. Such a verdict involves only a ―find[ing] for the 

plaintiff or defendant‖ in a civil case, or ―a verdict of guilty or not 

guilty‖ in a criminal case. 2 STEWART RAPALJE & ROBERT L.

LAWRENCE, A DICTIONARY OF AMERICAN AND ENGLISH LAW 1326 

(1888).14

¶49 In the standard case submitted on a general verdict, the 

constitutional requirement of unanimity calls for a 

straightforward assessment. All jurors must agree on whether the 

defendant has been proven guilty beyond a reasonable doubt. 

Any holdouts will require a mistrial.

¶50 Special verdicts, of course, have long been permitted.

15 But

they are not required.16 And the constitutional requirement of 

 

13 See, e.g., State v. Creechley, 75 P. 384, 384 (Utah 1904) (―A 

verdict upon a plea of not guilty shall be either  ̳Guilty‘ or  ̳Not 

guilty,‘ which imports a conviction or acquittal of the offense 

charged in the information or indictment. Upon a plea of a former 

conviction or acquittal of the same offense, it shall be either 'For 

the state' or  ̳For the defendant.‘‖ (quoting UTAH REV. ST. 1898, 

§ 4891)).

14 See also Callahan v. Simons, 228 P. 892, 894 (Utah 1924) (noting 

that in a general verdict, ―as contradistinguished from a special 

verdict,‖ ―the jury merely . . . found the issues in favor of the 

defendant and stated the amount that was allowed him on his 

counterclaim‖); State v. Tillman, 750 P.2d 546, 563 (Utah 1987) 

(observing that ―the jury was given a general verdict form which 

it subsequently returned unanimously finding defendant guilty of 

first degree murder‖).

15 See, e.g., 1876 COMPILED UTAH LAWS 728, § 175 (declaring that 

a special verdict lays out the jury‘s findings of fact, not the 

evidence needed to prove those conclusions); UTAH REV. ST., § 

3292(2) (1898) (providing means of proving that a juror has ―been 

(continued...)
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Opinion of the Court

21

unanimity in the case of a special verdict is still directed to the 

question of guilt or innocence on the crimes charged and 

submitted for the jury‘s decision. A special verdict form may ask 

the jury to indicate its specific factual findings on certain issues, in 

addition to its conclusion as to the defendant‘s guilt.

17 But the 

constitutional requirement of unanimity extends only to the jury‘s 

determination that the prosecution proved each element of the 

crimes in question beyond a reasonable doubt. 

¶51 On either a general or special verdict the scope of the 

protections afforded by the Unanimous Verdict Clause is defined 

by the elements of the substantive criminal law. If a defendant is 

charged with first-degree murder, for example, the prosecution 

must prove beyond a reasonable doubt that the defendant 

―cause[d] the death of another‖ either ―intentionally or 

knowingly.‖ UTAH CODE § 76-5-203(2)(a). On a general verdict the 

jury is charged only with deciding the defendant‘s guilt—a 

determination that then forms the basis for a judgment of 

 

induced to assent to any general or special verdict‖); Toltec Ranch 

Co. v. Cook, 67 P. 1123, 1123 (Utah 1902) (concluding that there was 

no ―irregularity . . . as to warrant a reversal‖ where jury found 

both general and special verdicts for each defendant, and the 

―court adopted the verdict and special findings of the jury‖).

16 ―At early common law, the jury determined whether it would 

bring in a general or special verdict. . . . With few exceptions, it is 

discretionary with the court whether to require a general or 

special verdict.‖ 6 AM. JUR. TRIALS 1043 (2016).

17 Cf. 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF 

ENGLAND 377 (1768) (noting that in a special verdict, the jury 

―state[s] the naked facts, as they find them to be proved, and pray 

the advice of the court thereon‖); Special verdict, Black‘s Law 

Dictionary (10th ed. 2014) (―A verdict in which the jury makes 

findings only on factual issues submitted to them by the judge, 

who then decides the legal effect of the verdict.‖).
STATE v. HUMMEL

Opinion of the Court

22

conviction or acquittal entered by the court.18 On a special verdict, 

the jury must be unanimous in its findings on these elements. In 

neither case, however, would the Unanimous Verdict Clause

require unanimity on the manner, mode, or factual or legal theory 

on which its verdict is based. 

¶52 In a case in which the prosecution presented alternative 

evidence of the mechanism of the cause of death, for example, the 

jury would not be required to achieve unanimity as to which 

mechanism it agreed upon beyond a reasonable doubt.19 So if the 

 

18 See, e.g., State v. Logan, 712 P.2d 262, 264 (Utah 1985) 

(distinguishing the verdict handed down by the jury from the 

judgment entered by the trial judge).

19 See United States v. Furlong, 18 U.S. 184, 201 (1820) (unanimity 

not required on whether the crime of piracy was ―committed . . .

in a haven . . . or bay,‖ on one hand, or ―on the high seas,‖ on the 

other; general verdict deemed sufficient); GEORGE BEMIS, REPORT 

OF THE CASE OF JOHN W. WEBSTER 471 (1850) (quoting Chief Justice 

Lemuel Shaw in the Webster case on whether unanimity was

required as to ―several modes of death‖: ―The indictment is but 

the charge or accusation made by the grand jury, with as much 

certainty and precision as the evidence before them will warrant. 

They may well be satisfied that the homicide was committed, and 

yet the evidence before them leave it somewhat doubtful as to the 

mode of death . . . . Take the instance of a murder at sea. The man 

is struck down, —lies some time on the deck insensible, and in 

that condition is thrown overboard. The evidence proves the 

certainty of a homicide by the blow, or by the drowning, but 

leaves it uncertain by which. That would be a fit case for several 

counts . . . . [I]t would certainly be unreasonable that the 

defendant should escape conviction because of difference of 

opinion among the jurors as to whether his victim was killed by 

the blow or by drowning, when all were convinced that the killed 

was effected by the felonious act of the defendant.‖); People v. 

Sullivan, 65 N.E. 989, 989–90 (N.Y. 1903) (―[I]t was not necessary 

that all the jurors should agree in the determination that there was 

a deliberate and premeditated design to take the life of the 

(continued...)
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Opinion of the Court

23

jury heard evidence that the defendant both poisoned the victim 

and tried to suffocate him with a pillow, there would be no 

requirement for the jury to agree on which mechanism was the 

ultimate cause of death. That is because the precise mechanism of 

the cause of death is not an element of the crime of murder. All 

that matters under our substantive law is that the defendant 

caused death knowingly or intentionally.

¶53 This is not to say that a mere verdict of guilty or not guilty

will always suffice. That depends on the elements of the charged 

crimes as defined by the lawmaker, and on whether the verdict is 

clear on its face in establishing that all jurors agreed on each 

element of each crime. 

¶54 Where separate crimes are charged, for example, a verdict 

may be insufficient if it fails to disclose the jury‘s unanimity on all 

elements of each crime. In a case involving charges of both first-

 

deceased, or in the conclusion that the defendant was at the time 

engaged in the commission of a felony, or an attempt to commit 

one. It was sufficient that each juror was convinced beyond a 

reasonable doubt that the defendant had committed the crime of 

murder in the first degree as that offense is defined by the 

statute.‖); State v. Baker, 63 N.C. 276, 281 (1869) (observing that 

―[t]he killing is the substance, the mode is the form: and while it is

important, that the prisoner should be specifically informed of the 

charge against him, so that he may make his defence, yet he 

cannot complain that he is informed that, if he did not do it in one 

way, he did it in another—both ways being stated; and it is not to 

be tolerated, that the crime is to go unpunished, because the 

precise manner of committing it is in doubt. . . . [W]hen there are 

several counts, some [supported by the evidence] and some [not], 

and a general verdict, judgment may pass upon the good, 

rejecting the [unsupported] as surplusage. Where there are several 

counts, and evidence was offered with reference to one only, the 

verdict though general, will be presumed to have been given on 

that alone. Where there are several counts, charging the same 

crime to have been done in different ways, the jury are not bound 

to distinguish in which way it was done, but the verdict may be 

general.‖ (citations omitted)).
STATE v. HUMMEL

Opinion of the Court

24

degree murder and manslaughter, for example, it would not be 

enough for the jury to unanimously indicate its support for a 

judgment of guilt. The classic case is Ford v. State, 12 Md. 514, 548 

(Md. 1859). Ford involved a jury verdict in a case involving both 

manslaughter and first-degree murder charges. The jury foreman 

in Ford merely announced a verdict of ―guilty,‖ and eleven of 

twelve jurors stated only that they found the defendant ―guilty‖ 

rather than ―guilty of murder in the first degree.‖ Id. And the 

Maryland Supreme Court held that the verdict fell short on 

unanimity grounds, explaining that ―[t]he law says, that when a 

person shall be found guilty of the crime of murder, by a jury, the 

jury shall, in their verdict, find the degree.‖ Id. at 549. Because ―this 

had not been done‖ in Ford, the court reversed. Id.

b. The unanimous verdict in this case

¶55 This is the plain meaning of the Unanimous Verdict Clause 

of the Utah Constitution. The requirement of unanimity extends 

only to the jury‘s verdict. And a verdict—both historically and 

today—is defined by the matters submitted to the jury for 

decision. Such matters, in turn, are dictated by the substantive 

criminal law.

¶56 As noted above, the substantive criminal law of theft in 

Utah sets forth a single crime with a discrete set of elements. Our 

legislature has expressly consolidated the common-law offenses 

―heretofore known as larceny, larceny by trick, larceny by bailees, 

embezzlement, false pretense, extortion, blackmail, [and] 

receiving stolen property‖ into a ―single offense‖ denominated as 

―theft.‖ UTAH CODE § 76-6-403. Under Utah Code section 76-6-404, 

―[a] person commits theft if he obtains or exercises unauthorized 

control over the property of another with a purpose to deprive 

him thereof.‖ Those are the elements of the crime of theft. And 

these are accordingly the matters committed to the jury in 

entering its verdict.

¶57 No other matters—whether denominated ―theories‖ or 

―methods, modes, or manners‖ of committing a crime, supra ¶ 16

n.6—must be found by the jury to sustain a verdict on a count 

charging theft. And accordingly no unanimity is required under 

the Utah Constitution on anything except the prosecution‘s charge 
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Opinion of the Court

25

that Hummel exercised unauthorized control over his various 

clients‘ property (on the dates in the five counts against him) with 

the purpose to deprive them of such control.

¶58 Hummel identifies multiple ―theories‖ behind the charges 

of theft against him—extortion by threatening to subject someone 

to criminal confinement, extortion by threatening to take or 

withhold official action, extortion by threatening to cause a public 

official to take or withhold official action, deception by a false 

impression of law or fact, and deception by preventing another 

from acquiring information likely to affect his judgment. But those 

―theories‖ do not represent distinct criminal offenses with 

different elements in our substantive criminal law. Instead they 

are definitional examples—and non-exhaustive ones—of the 

various means by which someone may commit the single offense 

of theft. 

¶59 The operative statutory provisions bear this out. Utah Code 

section 76-6-405 spells out how someone may commit theft 

through deception. But it does not establish a separate crime of 

theft by deception. It says only that ―[a] person commits theft if the 

person obtains or exercises control over property of another 

person (i) by deception; and (ii) with a purpose to deprive the 

other person of property.‖ UTAH CODE § 76-6-405(2)(a) (emphasis 

added). Section 76-6-406 is along the same lines. It says that ―[a] 

person is guilty of theft if he obtains or exercises control over the 

property of another by extortion and with a purpose to deprive 

him thereof,‖ and then proceeds to define ―extortion‖ for 

purposes of the crime of theft. UTAH CODE § 76-6-406(1) (emphasis 

added). 

¶60 Importantly, neither of these provisions purports to define 

a separate crime. Both define the crime of theft.

20 For that reason 

 

20 ―A person commits theft if the person obtains or exercises 

control over property of another person: (i) by deception.‖ UTAH 

CODE § 76-6-405(1) (emphasis added). ―A person is guilty of theft if 

he obtains or exercises control over the property of another by 

extortion . . . .‖ Id. § 76-6-406(1) (emphasis added).
STATE v. HUMMEL

Opinion of the Court

26

they do not alter the elements of theft, or add in any way to what 

the jury must find to enter a verdict on a charge of theft.

¶61 We see no basis for this court to second-guess the 

legislature‘s determination of the requisite elements of the crime 

of theft. Hummel appears to argue that the different ―theories‖ on 

which the jury might find guilt are legally distinct because each 

contains alternative actus reus elements by which a person could 

be found to have committed theft. But our substantive criminal 

law does not bear that out. The statutory examples of means by 

which a person can meet the elements of the single crime of theft 

are not ―alternative actus reus elements‖ of theft. They are simply 

exemplary means of satisfying the criminal elements defined by the 

legislature—that the defendant ―obtain[ed] or exercise[d] 

unauthorized control over the property of another with a purpose 

to deprive him thereof.‖ UTAH CODE § 76-6-404.

¶62 The relevant parallel here would be to the above-noted 

example of a murder case with evidence of two alternative means 

by which it was committed—by poison and by suffocation. There 

is no distinct crime of murder by poison or murder by suffocation. 

And for that reason it cannot be said that these distinct theories or 

means of committing the murder are legally distinct, or more 

importantly, that they are legal elements that must be found 

unanimously by the jury to have a valid conviction under the 

Unanimous Verdict Clause. 

¶63 The only defensible way to distinguish what is legally 

distinct from what is not is to defer to the substantive criminal 

law. Doing so here would require unanimity only as to the 

elements of the charge of theft on each of the counts against Mr. 

Hummel. Nothing in the record suggests that there were any 

holdouts among the jurors at that level. And that leads to an 

affirmance under the plain meaning of the Unanimous Verdict 

Clause set forth herein.21

 

21 The district court in this case followed this line of reasoning 

precisely. In issuing the jury instructions for Hummel‘s trial, the 

trial court rejected defense counsel‘s proposal for an alternative 

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Opinion of the Court

27

¶64 Hummel‘s construction of the Unanimous Verdict Clause

would set us on a slippery slope without a logical endpoint. If 

unanimity is required as to anything we could call a distinct 

―theory‖ of a crime, our juries would be required to agree on 

every minute detail presented by the evidence—on whether a 

murder was caused by suffocation or poisoning, or whether a 

shoplifter placed a stolen item in his pocket or backpack. If we 

divorced the requirement of unanimity from the elements set 

forth in the substantive criminal law, we would open the door to 

the argument that any and every detail presented by the evidence 

implicates a distinct ―theory‖ of the crime charged.22

 

instruction that would have required unanimity as to the means 

or manner in which the theft was committed. And it did so, 

correctly, on the basis of the determination that ―the unanimity 

rule‖ turns on ―whether [the charged crime] is a single crime that 

can be committed in different ways.‖ Transcript of Trial, 132 (Feb. 

1, 2013). Because the theft charges at issue here fit that mold, the 

district court properly held that there was no requirement of 

unanimity at the granular level of the ―way[]‖ in which the crime 

was committed. 

In explaining his conclusion, the trial judge raised a murder 

hypothetical, in which there is some question of how the murder 

was caused. And he rightly noted that under our cases ―it doesn‘t 

really matter‖ whether they agreed on the means of causing death 

―if they think that he caused the death.‖ Id. That conclusion is 

precisely in line with our decision today. We affirm on that basis, 

while noting that Hummel‘s contrary approach would open a 

hornet‘s nest of problems in future cases, as in the murder 

hypothetical raised above.

22 See State v. Russell, 733 P.2d 162, 167–68 (Utah 1987) (Howe, J., 

plurality) (expressing agreement with concerns raised in other 

courts about ―the difficulty that would be encountered with juries 

if‖ unanimity were required on sub-elemental aspects of a crime); 

State v. James, 698 P.2d 1161, 1165 (Alaska 1985) (―There are 

differences in conduct, intent or circumstances between the 

subsections of almost every criminal statute in our code. Rejection 

of the [limiting principles of the] Sullivan rule would therefore 

(continued...)
STATE v. HUMMEL

Opinion of the Court

28

¶65 We avoid these line-drawing problems by leaving the 

requirement of unanimity where it stands under the plain text of 

the Unanimous Verdict Clause. We therefore hold that the 

constitutional requirement of unanimity is limited to those 

matters identified as elements of a crime in the substantive 

criminal law. Mere examples of ways of fulfilling such elements, 

on the other hand, are not a necessary part of a verdict, and thus 

fall beyond the requirement of unanimity.23

2. The Requirement of Sufficient Evidence of Alternative Theories

¶66 The sufficiency of the evidence requirement is generally 

traced back to the influential decision in People v. Sullivan, 65 N.E. 

 

result in juror disagreement over semantics in many cases in 

which they unanimously agree that the defendant committed the 

wrongful deed. . . . By requiring semantic uniformity we 

encourage overcomplicated instructions and hung juries in cases 

in which the jurors actually agree upon the defendant‘s guilt.‖); 

Holland v. State, 280 N.W.2d 288, 293 (Wis. 1979) (―To require 

unanimity as to the manner of participation would be to frustrate 

the justice system, promote endless jury deliberations, encourage 

hung juries, and precipitate retrials in an effort to find agreement 

on a nonessential issue.‖).

23 In rejecting Hummel‘s approach we also avoid another linedrawing problem of constitutional magnitude—whether reversal 

on the basis of insufficient evidence of one of more theories of a 

crime bars retrial under the Double Jeopardy Clause. This is an 

important, complex question without a clear answer. Some courts 

have rejected double jeopardy arguments in analogous 

circumstances. See United States v. Garcia, 938 F.2d 12, 13 (2d Cir. 

1991); State v. Kalaola, 237 P.3d 1109, 1112 (Haw. 2010). But there is 

a contrary argument with some weight behind it: Hummel has 

once been subjected to the full range of jeopardy that attaches to a 

defendant at trial, and it is not at clear whether a retrial after 

reversal on the grounds proposed by Hummel would give the 

state ―another opportunity to supply evidence which it failed to 

muster in the first proceeding.‖ Burks v. United States, 437 U.S. 1, 

11 (1978). Our decision to affirm allows us to avoid this difficult 

question.
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Opinion of the Court

29

989, 989 (N.Y. 1903). Courts in Utah and elsewhere have cited 

Sullivan as support for a requirement of ―substantial evidence to 

support each of‖ two alternative theories of a crime.24 But this 

conclusion is rooted in a misunderstanding of Sullivan. And it 

bears no logical connection to the constitutional requirement of 

unanimity, and in fact undermines it. We reject it, at least as 

extended to alternative means of fulfilling an element of a crime.

a. Sullivan

¶67 People v. Sullivan involved two alternative grounds to 

support a charge of first-degree murder: (1) that the victim was 

killed with a ―deliberate and premeditated design to effect his 

death‖; and (2) ―that he was killed by the defendant while the 

latter was engaged in the perpetration of a felony, or an attempt to 

commit one.‖ 65 N.E. at 989. The jury returned a verdict of 

―guilty.‖ Sullivan challenged the verdict on appeal, asserting that

the jury had failed to identify the specific ground on which they 

had found guilt. The New York Court of Appeals affirmed. 

¶68 In so doing it emphasized that ―[t]here was but a single 

crime charged in the indictment against the defendant[]—that of 

murder in the first degree.‖ Id. And it noted that ―the only issue to 

be determined by the jury was whether the defendant had been 

guilty of that crime.‖ Id. Because guilt of that crime could be 

 

24 See State v. Tillman, 750 P.2d 546, 564 (Utah 1987) (plurality 

opinion of Hall, C.J.); see also State v. Arndt, 553 P.2d 1328, 1330 

(Wash. 1976) (citing Sullivan for the proposition that ―it is 

unnecessary to a guilty verdict that there be more than unanimity 

concerning guilt as to the single crime charged, . . . regardless of 

unanimity as to the means by which the crime is committed 

provided there is substantial evidence to support each of the means 

charged‖ (emphasis added)); Bloomquist v. State, 914 P.2d 812, 818–

19 (Wyo. 1996) (holding that defendant was not denied the 

constitutional right to a unanimous verdict when he was charged 

with committing a crime in two different ways, the jury returned 

a general verdict, and there was ―sufficient evidence support[ing] 

each alternative ground‖ for the conviction).
STATE v. HUMMEL

Opinion of the Court

30

established upon ―proof either that the defendant killed the 

deceased with a deliberate and premeditated design to effect his 

death, or while the defendant was engaged in the commission of a 

felony, or an attempt to commit a felony,‖ the Sullivan court 

concluded that it was not ―necessary that a jury . . . should concur 

in a single view of the transaction disclosed by the evidence.‖ Id.

¶69 In other words, Sullivan said ―it was not necessary that all 

the jurors should agree in the determination that there was a 

deliberate and premeditated design to take the life of the 

deceased, or in the conclusion that the defendant was at the time 

engaged in the commission of a felony, or an attempt to commit 

one.‖ Id. at 989–90. ―It was sufficient that each juror was 

convinced beyond a reasonable doubt that the defendant had 

committed the crime of murder in the first degree as that offense 

is defined by the statute.‖ Id. at 990.

¶70 This account of Sullivan is entirely consistent with the plain 

text of the Utah Unanimous Verdict Clause, as set forth above. 

Yet, as noted, Sullivan is frequently cited as the root of the 

requirement of sufficient evidence to support both of two 

alternative theories of a crime. One basis for this view of Sullivan

is the following statement in the Sullivan majority: ― ̳If the 

conclusion may be justified upon either of two interpretations of 

the evidence, the verdict cannot be impeached by showing that a 

part of the jury proceeded upon one interpretation and part upon 

the other.‘‖ Id. (quoting Murray v. N.Y. Life Ins. Co., 96 N.Y. 614, 

615 (N.Y. 1884)). 

¶71 That statement is not a basis for a requirement that each 

theory presented to the jury be supported by sufficient evidence. 

See Johnson, 821 P.2d at 1159 (speaking of a rule of reversal where 

―any one‖ of the prosecution‘s theories ―lacks the requisite 

evidentiary foundation‖). Instead, the Sullivan majority—and the 

Murray opinion on which it relies—articulates a much more 

lenient standard. The operative requirement of Sullivan is simply 

that ―the conclusion may be justified upon either of two interpretations 

of the evidence.‖ Sullivan, 65 N.E. at 989 (emphasis added). In 

context, the relevant ―conclusion‖ is the determination of guilt on 

the ―single crime charged in the indictment‖—and on ―the only 

issue to be determined by the jury,‖ which was ―whether the 
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Opinion of the Court

31

defendant had been guilty of that crime.‖ Id. With this in mind, 

the requirement that the verdict be justifiable ―upon either of two 

interpretations of the evidence‖ is just a classic statement of the 

general requirement of sufficient evidence to sustain a jury 

verdict.

¶72 Sullivan required sufficient evidence to support ―either of 

two‖ theories of the crime presented to the jury. Naturally. If the 

record is lacking in evidence of both a premeditated killing and a 

killing in the course of a felony, there can be no evidentiary basis 

for a jury to find the defendant guilty of the single crime of firstdegree murder. This version of the Sullivan rule is unimpeachable.

It is also the view that prevailed when Sullivan was handed 

down—and around the time of the framing of the Utah 

Constitution.25

¶73 Yet Sullivan was misconstrued over time to require 

sufficient evidence upon both of two theories of a crime. That 

conclusion is traceable to a separate sentence in the Sullivan

opinion—a stray statement that ―[i]f as to either claim the 

evidence was insufficient to justify the submission of the question 

to the jury, the conviction must be reversed, since it cannot be 

known on which ground the jury based its verdict.‖ 65 N.E. at 

989. Yet this statement seems to turn the more detailed analysis in 

the opinion on its head. It seems to require sufficient evidence on 

 

25 See, e.g., State v. Baker, 63 N.C. 276, 280 (N.C. 1869) (citing 

WHARTON‘S CRIM. LAW § 3047) (affirming conviction on homicide 

where the indictment contained four counts covering several 

distinct methods of commission, all of which were submitted to 

the jury, but only one of which was supported by the evidence);

Rhea v. State, 88 N.W. 789, 799 (Neb. 1902) (applying the Murray

rule where the defendant was charged with first degree murder, 

either by a premeditated act or in the course of a felony; observing 

that ―[t]he rule, as we understand the authorities,‖ was that the 

jury could return a general verdict when either of the alternatives 

was supported by the evidence (emphasis added)).
STATE v. HUMMEL

Opinion of the Court

32

both theories of a crime, or in other words reversal (not affirmance) 

if the evidence is insufficient ―as to either claim.‖

¶74 The purported rule of reversal if evidence is lacking on 

―either‖ theory of the crime is inconsistent with the thrust of the 

majority‘s analysis in Sullivan. And this point is a rank dictum: It 

was completely unnecessary to the court‘s holding (given that the 

majority found evidence supporting both theories of the crime26), 

and it appears to represent only an arguendo response to the 

dissent. 

¶75 In any event, over time this stray sentence has become the 

tail that has wagged the Sullivan dog. The opinion generally—and 

quite clearly—declined to require unanimity on which of two 

theories of the crime was accepted by the jury. And it 

unequivocally held that evidence of ―either‖ variant was sufficient 

to sustain the verdict. Yet in this court and others, Sullivan

eventually became known for a supposed rule of reversal if 

evidence was lacking on either theory of a crime, or in other 

words a requirement of sufficient evidence as to both theories of 

the crime.

b. The (il)logic of the requirement of sufficient evidence on 

alternative theories

¶76 For these reasons the notion of a requirement of sufficient 

evidence to sustain both of two theories of a crime is a product of 

a mistaken reading of precedent.27 And that begs a 

 

26 See People v. Sullivan, 65 N.E. 989, 991–92 (N.Y. 1903) (finding 

sufficient evidence for the jury to find the defendant guilty of first 

degree murder via premeditation and deliberation); id. at 992 

(concluding that ―the evidence was also sufficient to justify the 

jury in finding that the defendant and his associates were engaged 

in an attempt to commit a felony . . . when they took the life of the 

deceased‖).

27 Many courts in other jurisdictions agree with this conclusion. 

In the decisions cited below and others, the courts have declined 

to adopt the broad reading of the Sullivan dictum. See, e.g., Rice v. 

(continued...)
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Opinion of the Court

33

reconsideration of this principle. Not only is this principle 

indefensible as a matter of the plain language and original 

meaning of the constitution, but it also fails as a matter of basic 

logic. 

¶77 The sufficiency of the evidence on alternative means of 

committing a crime tells us nothing about the jury‘s unanimity on 

such means. If anything, the existence of evidence of both of two 

alternatives heightens the risk of a lack of unanimity.

¶78 Consider again the hypothetical murder case involving 

evidence of both poisoning and suffocation. Compare two 

alternative cases, one in which we have evidence of only one 

theory or means of committing the murder and one in which we 

have evidence of both. The jury returns a guilty verdict in both 

cases. In which case would we have a greater cause for doubting 

the jury‘s unanimity on the means by which the crime was 

committed? Surely the latter, in which there is sufficient evidence 

of both alternative means. In that case the likelihood of a split 

verdict—with some jurors finding murder by suffocation and 

others finding murder by poisoning—is obvious. 

¶79 Such a split is also possible in a case in which the record 

evidence supports only one theory (but the prosecution argues 

both, and/or the jury instructions identify both). Members of the 

jury, after all, could become confused. Or they could vote for a 

verdict on a theory unsustained by any evidence at all. But the 

lack of evidence on an alternative theory makes the possibility of a 

lack of unanimity less likely. And this tells us that the requirement 

of sufficient evidence on two alternative theories has little or 

nothing to do with the requirement of unanimity. 

 

State, 532 A.2d 1357, 1364 (Md. 1987) (citation omitted) (arguing 

that the Sullivan logic ―requires unanimity only in the verdict, not 

in the rationale upon which the verdict is based,‖ without 

including an additional requirement of sufficient evidence on all 

alternatives); see also People v. Smith, 906 N.E.2d 529, 537–38 (Ill. 

2009); State v. Elliott, 987 A.2d 513, 520–21 (Me. 2010); Davis v. 

State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010); State v. Johnson, 

627 N.W.2d 455, 459 (Wis. 2001).
STATE v. HUMMEL

Opinion of the Court

34

¶80 If we were to seriously require unanimity as to distinct 

theories or means of committing a crime, it would not be enough 

to require sufficient evidence of both alternatives. We would 

require a special verdict form requiring the jury to make express 

findings on which of two theories or means it found sustained by 

the evidence. Our law has never done that, however. And our 

refusal to do so further supports the conclusion that our law does 

not require unanimity at the level of theory of a crime or means of 

fulfilling an element.28

3. The Burden of Establishing Prejudicial Error

¶81 It is true, of course, that ―it is impossible to determine 

whether the jury agreed unanimously‖ on which of two 

alternative theories of a crime was accepted by a jury who issues a 

general verdict. State v. Johnson, 821 P.2d 1150, 1159 (Utah 1991).

But that will hold regardless of whether there is sufficient 

evidence to support both theories, and perhaps more so when that 

is the case. 

¶82 Uncertainty, moreover, is not a basis for reversal. 

Uncertainty counts against the appellant, who bears the burden of 

proof on appeal, and must overcome a presumption of regularity 

as to the record and decision in the trial court.29 Thus, a lack of 

 

28 We need not and do not overrule the Johnson line of cases. We 

simply adopt a limited reading of these cases and decline to 

extend them to a case involving alternative theories that are not 

alternative elements of a crime. 

29 See State v. Triptow, 770 P.2d 146, 149 (Utah 1989) (―A previous 

judgment of conviction . . . is entitled to a presumption of 

regularity . . . .‖); Broderick v. Apartment Mgmt. Consultants, L.L.C., 

2012 UT 17, ¶ 19, 279 P.3d 391 (―We recognize that appellants bear 

the burden of persuasion on appeal.‖). That presumption is 

further reinforced by the presumption of constitutionality. See 

State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448 (―Under the 

presumption of regularity,  ̳Utah courts place the initial burden on 

the appellant, not on the state, to produce some evidence that the 

prior conviction was improper, attaching a presumption of 

(continued...)
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Opinion of the Court

35

certainty in the record does not lead to a reversal and new trial; it 

leads to an affirmance on the ground that the appellant cannot 

carry his burden of proof.

¶83 Our cases identify a settled means of assessing the effect of 

a superfluous jury instruction. Such an instruction does not lead 

to automatic reversal. It simply opens the door for the appellant to 

carry the burden of showing that the unnecessary instruction 

affected the judgment below—that it was not harmless.

30 

¶84 Hummel‘s theory would have us turn this law on its 

head—by concluding that an unnecessary jury instruction leads to 

automatic reversal in a case in which there is no evidence to 

support it. That is not the law. 

¶85 A jury verdict is a product of a substantial investment of 

public resources. It is entitled to ample deference on appeal. We 

cannot reverse it on the mere basis of uncertainty. Under our 

established case law, we may reverse on the basis of an 

unnecessary jury instruction only if the instruction is shown to be 

prejudicial (or in other words not harmless). And that forecloses 

Hummel‘s invitation for reversal whenever a theory is presented 

to the jury without any supporting evidence.

 

regularity, including a presumption of constitutionality, to the 

prior conviction.‘‖ (citation omitted)).

30 See State v. Fisher, 680 P.2d 35, 37 (Utah 1984) (finding only 

harmless error, and thus no need to ―reverse a conviction even if 

there were erroneous instructions on [one] variation‖ of a ―crime 

submitted to the jury‖ where ―the evidence overwhelmingly 

supports a conviction under one variation‖). See also State v. 

Young, 853 P.2d 327, 347 (Utah 1993) (―Even if defendant can show 

that the instructions given by the trial court were in a technical 

sense incorrect, he has not shown that the instructions prejudiced 

him. Only harmful and prejudicial errors constitute grounds for 

granting a new trial.‖); State v. Johnson, 774 P.2d 1141, 1146 (Utah 

1987) (―[D]efendant does not contend that had his proposed 

instruction been given, the outcome of the trial would have been 

different, and indeed, nothing appears to indicate that the result 

would have been otherwise had the instruction been given.‖).
STATE v. HUMMEL

Opinion of the Court

36

III. SUFFICIENCY OF THE EVIDENCE

¶86 Hummel also challenges the sufficiency of the evidence to

support the jury‘s verdict in this case. We assess this challenge in 

light of the above understanding of the Unanimous Verdict 

Clause. 

¶87 Thus, we consider only whether there is credible evidence 

to sustain the verdict—the determination of guilt on each of the 

elements of the crime charged in each count against Hummel. We 

do not require sufficient evidence on alternative theories or means 

of committing each count of theft. It is enough that there is 

sufficient evidence on even one theory or means of proving theft 

on each count in question. In reviewing the sufficiency of 

evidence, moreover, ―we ‘assume that the jury believed the 

evidence‘‖ and drew reasonable inferences supporting the verdict. 

State v. Boyd, 2001 UT 30, ¶16, 25 P.3d 985 (citation omitted). 

¶88 We affirm under these standards. We hold that the State 

presented believable evidence to support a determination of 

guilt—of proof beyond a reasonable doubt on each of the 

elements of theft—on each of the counts against Hummel. 

¶89 Hummel challenges the strength of the prosecution‘s 

evidence on the theory of theft by extortion. And he may be right 

to question the strength of the prosecution‘s case on this theory. 

But in Utah there is no separate crime called theft by extortion, 

and Hummel was not charged with such a crime. He was charged 

with theft. And the jury verdict on the counts of theft may be 

sustained with evidence of alternative theories of this crime—such 

as theft by deception—even if there is insufficient evidence of 

theft by extortion. See supra ¶ 87. 

¶90 We affirm on that basis. We conclude that there was ample 

evidence that Hummel engaged in theft—that he ―obtain[ed] or 

exercise[d] unauthorized control over the property of another 

with a purpose to deprive him thereof.‖ Id. § 76-4-404. 

Specifically, we hold that there was sufficient evidence to sustain 

a determination by the jury that Hummel obtained or exercised 

unauthorized control over the property of each of his clients by 

acts of deception.
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Opinion of the Court

37

¶91 For four of the five counts against Mr. Hummel, there was 

evidence that he committed theft by deception by preventing his 

clients ―from acquiring information likely to affect [their] 

judgment[s] in the transaction.‖ UTAH CODE § 76-6-401(5) (setting 

forth means of engaging in ―deception‖). The evidence indicated 

that Hummel removed four of his clients‘ applications for 

appointed counsel from the clerk‘s desk before the court could

rule on them. And the jury could reasonably have concluded that 

the court‘s disposition of these applications was ―information 

likely to affect [their] judgment[s]‖ on the question whether to

retain him privately. It was a fair inference, in fact, that that was 

Hummel‘s purpose in removing the applications. Alternative

inferences could also be drawn from the evidence. But this was a 

fair one, and that is all that is necessary to sustain the jury verdict.

¶92 There was one other count on which there was no 

indication that Hummel had removed his client‘s application from 

the clerk‘s desk. But on this count there was evidence that 

Hummel encouraged his client to file an application overstating

his annual income in order to ensure that he was denied counsel 

(after telling him that he did not qualify). As with the removal of 

applications, a jury could find that this prevented the client from 

discovering ―information likely to affect [his] judgment.‖ UTAH 

CODE § 76-6-401(5). And with this client there was also evidence 

that Hummel had in fact been formally appointed as a public 

defender, so the jury could have concluded that Hummel‘s 

assertion that the client did not qualify for a public defender was 

false and deceptive. 

¶93 We accordingly find sufficient evidence to sustain guilty 

verdict on all of the counts against Hummel. And we affirm on 

that basis.

IV. CONSTITUTIONAL RIGHT TO DEMAND THE NATURE 

AND CAUSE OF ACCUSATIONS

¶94 Hummel also challenges his convictions under article I, 

section 12 of the Utah Constitution. He says the prosecution 

initially alleged that Hummel talked his clients out of the public 

defender arrangement after it had been finalized, but shifted gears 

when it learned that no formal appointment had been made (as to 
STATE v. HUMMEL

Opinion of the Court

38

most of the clients at issue in this case). And he says that this

deprived him of his right to ―demand the nature and cause of the 

accusations against him‖ under the Utah Constitution. UTAH

CONST. art. 1, § 12. 

¶95 We reject this argument on preservation grounds. If 

Hummel had a gripe with the prosecution‘s change in the theory

of its case he had an obligation to object and ask for a continuance. 

See State v. Fulton, 742 P.2d 1208, 1215 (Utah 1987). Yet he failed to 

raise any objection or ask for a continuance. And that failure is 

fatal. Id. at 1215–16 (explaining that ―the failure of a defendant to 

seek a continuance negates any claim of surprise and amounts to a 

waiver of any claim of variance‖). 

V. ―PROSECUTORIAL MISCONDUCT‖ IN INTRODUCING 

FALSE OR MISLEADING EVIDENCE AT THE PRELIMINARY 

HEARING AND TRIAL

¶96 Lastly, Hummel alleges ―misconduct‖ on the part of the 

prosecution, asserting that his right to due process was infringed 

thereby. The alleged ―misconduct‖ falls into three categories: (a) 

presentation of allegedly false hearsay statements at the 

preliminary hearing; (b) presentation of misleading or false 

testimony at trial; and (c) statements made in closing argument,

which in Hummel‘s view were inaccurate and aimed at 

encouraging the jury to engage in speculation. 

¶97 Hummel lumps these items together and labels them all 

―prosecutorial misconduct.‖ In so doing, he glosses over his lack 

of preservation—his failure (on most of these points) to raise an 

objection at trial. And he seeks to sidestep the requirement of 

proof of obvious, prejudicial error—traditional ―plain error‖—on 

the arguments he failed to preserve.

¶98 Citing State v. Emmett, 839 P.2d 781 (Utah 1992), and State v. 

Ross, 2007 UT 89, 174 P.3d 628, Hummel says that acts of 

―prosecutorial misconduct‖ are reversible error so long as ―they 

are harmful‖ (or in other words prejudicial). Appellant’s Brief at 53.

He identifies two broad categories of prosecutorial misconduct: 

(a) introducing evidence a prosecutor ―knows or has reason to 

know is false,‖ a category he traces to State v. Doyle, 2010 UT App 

351, 245 P.3d 206; and (b) making statements in closing that ―call 
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Opinion of the Court

39

to the jurors‘ attention matters that they would not be justified in 

considering in reaching a verdict,‖ a category he ties to State v. 

Emmett, 839 P.2d 781 (Utah 1992). Id.

¶99 The State responds by asserting that Hummel failed to 

preserve an objection to most of these acts of ―misconduct.‖ It

asks us to affirm on the basis of ―inadequate briefing‖ on 

Hummel‘s part—his failure to present a more extensive argument 

under the law of plain error. 

¶100The State acknowledges Hummel‘s reliance on Ross in 

support of his preferred ―plain error standard for a misconduct 

claim.‖ But it chides him for ―presum[ing] the State maintains the 

burden of proof on appeal in that context without recognizing the 

unsettle[d] state of the law on the issue.‖ To illustrate the 

unsettled state of the law, the State cites State v. Clark, 2014 UT 

App 56, 332 P.3d 761, and State v. Cox, 2012 UT App 234, ¶ 15 n.2, 

286 P.3d 15 (Voros, J., concurring), which highlight the lack of 

clarity in our law as to ―the harmlessness standard and who bears 

the burden of proof for unpreserved claims of prosecutorial 

misconduct in the plain error context.‖ Clark, 2014 UT App 56, ¶ 

31 n.7. And the State urges us to reject Hummel‘s position on 

appeal ―as inadequately briefed‖ given his failure to address these 

nuances. Appellee’s Brief at 63.

¶101We recently noted the ―tension in our previous cases‖ on 

the standard that applies in a case involving an unpreserved 

challenge to a prosecutor‘s questions eliciting material that should 

have been withheld from the jury. See State v. Bond, 2015 UT 88, 

¶ 38 n.10, 361 P.3d 104. In the Bond case we considered a challenge 

to a prosecutor‘s ―leading questions of a witness who claims a 

privilege against self-incrimination‖—questions that had a 

tendency to inculpate the defendant while depriving him of his 

Confrontation Clause right of cross-examination. Id. ¶ 33. Yet we 

noted that the defense had failed to object to these questions. Id. 

¶ 30. ―Therefore,‖ we held that ―our disposition turn[ed] on 

whether the trial court plainly erred in allowing the prosecution 

to question [the witness] in this manner or whether [the 

defendant‘s] lawyers rendered ineffective assistance in failing to 

more for a mistrial based on the Confrontation Clause.‖ Id. 
STATE v. HUMMEL

Opinion of the Court

40

¶102Our Bond opinion acknowledged the above-noted line of 

cases suggesting a basis for direct review of alleged prosecutorial 

misconduct. See id. ¶ 38 (citing Ross, 2007 UT 89). But we also 

reiterated our commitment to the law of preservation—and to the 

set of well-established exceptions to the general rule requiring an 

objection at trial to preserve an argument for appeal (plain error, 

exceptional circumstances, and ineffective assistance of counsel). 

See id. ¶ 41 n.14 (establishing that ―we have already announced 

that our  ̳preservation rule applies to every claim, including 

constitutional questions, unless a defendant can demonstrate that 

exceptional circumstances exist or plain error occurred‘‖ (citation 

omitted)). And we ―h[e]ld that unpreserved federal constitutional 

claims are not subject to a heightened review standard but are to 

be reviewed under our plain error doctrine.‖ Id. ¶ 44.

¶103In so holding, we emphasized that this rule ―comports with 

the aims of preservation as expressed by the United States 

Supreme Court and this court.‖ Id. ¶ 45. We noted, for example, 

―that under plain error review, the  ̳burden should not be too easy 

for defendants‘ and the standard of review should  ̳encourage 

timely objections and reduce wasteful reversals by demanding 

strenuous exertion to get relief for unpreserved error.‘‖ Id. 

(quoting United States v. Dominguez, 542 U.S. 74, 82 (2004)). ―And 

because in our adversarial system the responsibility to detect 

errors lies with the parties and not the court,‖ we explained that 

―preservation rules encourage litigants to grant the district court 

the first opportunity to rule on an issue.‖ Id.

¶104With this in mind, we proceeded in Bond to consider 

whether the trial court committed plain error ―in permitting the 

prosecutor to ask [the witness] leading questions.‖ Id. ¶ 48. We 

asked, in other words, not whether the prosecutor‘s questions 

were improper, but whether the impropriety ―should have been 

obvious to the trial court.‖ Id. 

¶105This same approach is appropriate here. On points on 

which Hummel raised no objection at trial, our review is for plain 
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Opinion of the Court

41

error.31 And our plain error analysis asks not whether the 

prosecutor made a misstep that could be characterized as 

misconduct, but whether the trial court made an ―obvious‖ error in 

its decision. See State v. Thornton, 2017 UT 9 ¶ 49, --P.3d-- (noting 

that generally appellate courts ―ask only whether the trial court 

committed a reversible error in resolving a question presented for 

its determination‖ rather than ―review[ing] the trial record in a 

search for an idealized paradigm of justice‖).

¶106Our Ross line of ―prosecutorial misconduct‖ cases is in 

some ―tension‖ with the above. See Bond, 2015 UT 88, ¶ 38 n.10. In 

Ross and elsewhere we have suggested that a prosecutor’s error 

may constitute a ― ̳standalone basis for direct review of the actions 

of prosecutors.‘‖ Id. ¶ 23 n.5 (quoting State v. Larrabee, 2013 UT 70, 

¶ 65, 321 P.3d 1136 (Lee, J., dissenting)). Yet in Bond we declined 

to ―endors[e]‖ that approach. Id. And we emphasized the need to 

focus our analysis on district court decisions in order to preserve the 

lines and policies protected by the law of preservation.

¶107We extend Bond a step further here. We do so by 

concluding that plain error review considers the plainness or 

obviousness of the district court‘s error (not the prosecutor‘s). 

That follows from the nature of our appellate jurisdiction: 

Appellate courts review the decisions of lower courts. We do not 

review the actions of counsel—at least not directly.

¶108That is not to say that the extent of a prosecutor‘s 

―misconduct‖ is irrelevant to our analysis. The propriety of a 

lower court decision may turn, in part, on the egregiousness of an 

attorney‘s misstep. If a prosecutor asks a question aimed at 

eliciting material that is both highly prejudicial and clearly 

inadmissible, that may suggest that the trial judge was plainly 

wrong in not intervening to block its admission sua sponte. The 

more plain or obvious the prosecutor‘s misstep, the greater the 

likelihood (other things being equal) that an appellate court 

would find plain error in a judge‘s failure to step in to stop it. That

 

31 Hummel makes no exceptional circumstances argument and 

does not allege ineffective assistance of counsel.
STATE v. HUMMEL

Opinion of the Court

42

kind of thinking may be behind our assertion that ―prosecutorial 

misconduct‖ can constitute plain error.32

¶109It goes too far, however, to suggest that every misstep of a 

prosecutor should be corrected by the trial judge—or in other 

words that it is always plain error by the judge not to step in 

when the prosecutor oversteps his bounds. At least occasionally, 

the defense may be aware of a prosecutor‘s misstep but choose 

not to highlight it through an objection. Our adversary system, 

moreover, relies generally on objections from parties to police the 

admissibility of evidence. We do not require or even expect our 

trial judges to exercise their own independent judgment on the 

question of admissibility.33

¶110The same goes for statements in closing argument. In 

closing counsel have ―considerable latitude‖ in the points they 

may raise. State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). And 

the law recognizes the prerogative of opposing counsel to 

swallow their tongue instead of making an objection that might 

have the risk of highlighting problematic evidence or even just 

 

32 See State v. Ross, 2007 UT 89, ¶ 53, 174 P.3d 628 (asking 

―whether the State’s remarks during closing arguments constitute 

prosecutorial misconduct‖ and ―[a]pplying our plain error 

standard of review‖ (emphasis added)); id. (concluding that ―it 

was not plain error for the trial court not to have intervened when 

the State stretched evidence‖ (emphasis added)).

33 See State v. King, 2006 UT 3, ¶ 14, 131 P.3d 202; Polster v. Griff’s 

of Am., Inc., 520 P.2d 745, 747 (1974) (citing the general rule that 

―the trial court has no duty to question each piece of evidence 

offered . . . . It should not assume the role of advocate and on its 

own motion, without request therefor, limit, comment upon, 

qualify, or strike evidence offered by the parties. These are the 

basic functions of trial counsel in our adversary system of justice 

and underlie the rationale of the contemporaneous objection 

rule‖).
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Opinion of the Court

43

annoying the jury.34 With this in mind, we cannot properly 

conclude that every misstep of counsel in closing amounts to plain 

error—subject only to proof of prejudice. We must ask first 

whether counsel‘s missteps were so egregious that it would be 

plain error for the district court to decline to intervene sua sponte.

¶111For these reasons we repudiate the statements in Ross and 

related cases in which we have identified ―prosecutorial 

misconduct‖ as a standalone basis for independent judicial 

review. We hold instead that the law of preservation controls here 

as in other circumstances. Thus, absent an objection at trial, we 

review the district court‘s actions under established exceptions to 

the law of preservation (here, plain error).

¶112A contrary holding would open the door to the use of the 

―prosecutorial misconduct‖ label as an end-run around the law of 

preservation (and the doctrine of plain error review). Most every 

problematic turn in the proceedings in a criminal trial could be 

reframed as a result of a prosecutorial misstep. An erroneous jury 

instruction, for example, could be blamed on the prosecutor who 

was involved in drafting it. The same goes for presenting 

inadmissible evidence or asking leading questions to a witness 

who has invoked the Fifth Amendment (as in Bond). Appellate 

review of these and other proceedings at trial must be subject to 

the law of preservation. The call of ―prosecutorial misconduct‖ 

cannot override our usual standards of review in this area.

 

34 State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55, as amended

(Mar. 13, 2015) (emphasizing that defense retains the discretion 

not to object to arguments made at closing unless a prosecutor‘s 

argument is ―so inflammatory that  ̳counsel‘s only defensible 

choice was to interrupt those comments with an objection‘‖ 

(citation omitted)); State v. Bedell, 2014 UT 1, ¶ 25, 322 P.3d 697 

(refusing to find that counsel was ineffective for failing to object to 

a prosecutor‘s closing argument when not doing so was ―a 

legitimate strategic decision‖). 
STATE v. HUMMEL

Opinion of the Court

44

¶113In this case, we therefore ask not whether the prosecutor 

made missteps but whether the trial judge committed reversible 

error. And we distinguish the grounds raised on appeal that were 

preserved from those that were not, assessing the latter under 

plain error review.

A. Misleading Hearsay Evidence at the Preliminary Hearing

¶114Hummel complains that the district court admitted 

misleading hearsay evidence at the preliminary hearing. The outof-court statements in question were from Hummel‘s clients, who 

stated they believed Hummel had been appointed as a public 

defender before they agreed to enter into a private retention 

agreement with him. These statements came in under Utah Rule 

of Evidence 1102(b)(8)(B). That rule allows hearsay in ―criminal 

preliminary examinations‖ if it is ―a statement of a declarant that 

is written, recorded, or transcribed verbatim which is: . . . (B) 

pursuant to a notification to the declarant that a false statement 

made therein is punishable.‖ Id. On appeal, Hummel argues that 

these statements were ―false,‖ and that ―[t]he prosecutor could 

have determined‖ their falsity ―by simply consulting the district 

court‘s files.‖ Appellant’s Brief at 50. And he challenges the 

admission of this evidence in the preliminary hearing on that 

basis.

¶115We affirm. Hummel failed to preserve an objection to the 

admission of these statements at the preliminary hearing. He 

objected only to the admission of a part of one of the statement—a 

part that was unconnected to the question of whether he had been 

appointed as counsel. And in his motion to quash the bindover 

decision he did not assert that the admission of false statements 

was a basis for overturning the bindover decision. So his 

argument fails for lack of preservation—and for lack of any 

argument for reversal on grounds of plain error.

B. Misleading Testimony at Trial

¶116 Hummel next complains of the admission at trial of 

testimony that Hummel had been appointed to represent one of 

his clients (Callies). He asserts that this testimony was 

misleading—and contradicted by other evidence. And he asks for 
Cite as: 2017 UT 19

Opinion of the Court

45

reversal on the basis of ―prosecutorial misconduct‖ in presenting 

this testimony.

¶117The question for our review is not whether to question the 

prosecutor‘s actions. It is whether the district court erred in 

admitting this evidence. And here we begin by noting a lack of 

preservation. Hummel never objected to the admission of the 

testimony in question. That is fatal to his argument on appeal. 

Hummel cannot establish plain error. His position, as above, is to 

question the evidence that was admitted by countering it with 

other evidence in the record. That is insufficient. 

¶118It is not error—much less plain error—for the court to 

admit evidence (without objection) that is contradicted by other 

evidence in the record. Such contradictions are commonplace. 

And they are a significant reason why cases go to trial. We affirm 

because we cannot fault the district court for admitting evidence 

that was not objected to just because other evidence in the record 

seems to cut the other way.

C. Statements in Closing Argument

¶119That leaves the question of the prosecution‘s allegedly 

misleading statements in closing argument. Hummel points to 

several statements the prosecutor made in closing that were 

allegedly inaccurate and encouraged the jury to engage in 

speculation. Again, however, there is a preservation problem. For 

all but one of the statements in question, Hummel raised no 

objection at trial. And none of those statements was so 

egregiously false or misleading that the judge had an obligation to 

intervene by raising an objection sua sponte.

35

 

35 Such a course is often a perilous one for a trial judge. A judge 

who interrupts a closing argument to question the basis for a 

lawyer‘s statement risks treading on the toes of opposing 

counsel—of highlighting a point that counsel may prefer to 

ignore, in the hopes that it may go unnoticed or at least 

minimized by the jury. So a judge who does so must be certain 

that the attorney‘s statement is both highly prejudicial and 

(continued...)
STATE v. HUMMEL

Opinion of the Court

46

¶120Hummel points to one statement in closing that he objected 

to at trial. But the trial judge sustained the objection. And 

Hummel makes no attempt to argue that the judge‘s response to 

the objection was inadequate—that a curative instruction was 

required, or a mistrial. That is also fatal under the law of 

preservation.36 If Hummel believed that the sustaining of his 

objection was insufficient, he had a duty to ask the judge to do 

more. Where the judge gave him everything he asked for 

(sustaining his objection), he is in no position to ask for more on 

appeal.

V. CONCLUSION

¶121Mr. Hummel raises important, unresolved questions of 

state constitutional law in this appeal. But he has failed to identify 

a basis for reversal of his convictions. We affirm.

 

obviously beyond the bounds of the ―considerable latitude‖ of 

counsel at closing to ―discuss fully from their viewpoints the 

evidence and the inferences and deductions arising therefrom.‖ 

State v. Tillman, 750 P.2d 546, 560 (Utah 1987). We are in no 

position to question the trial judge‘s decision here to sit silent in 

the absence of an objection.

36 See State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (―Utah courts 

require specific objections in order to bring all claimed errors to 

the trial court's attention to give the court an opportunity to 

correct the errors if appropriate.‖ (citation omitted)); State v. 

Briggs, 2006 UT App 448, ¶ 4, 147 P.3d 969 (concluding that a 

defendant failed to preserve an objection because he did not 

―request any specific relief‖ (citation omitted)).