Must juries agree on which specific acts support each criminal count? State v. Baugh Explained

In State v. Baugh, the Utah Court of Appeals addressed a critical issue regarding jury unanimity requirements when multiple criminal acts could support the same charges. The case demonstrates the importance of ensuring juries unanimously agree on which specific acts form the basis for each conviction.

Background and Facts

Baugh was charged with two counts of aggravated sexual abuse of a child, with one count alleged to have occurred in 2012 and another in 2014. However, during trial, the victim testified about three specific instances of abuse: two at the family house and one at an apartment. Crucially, the victim never specified when each alleged incident occurred, and Baugh lived at both locations during the relevant time period in 2014.

Key Legal Issues

The central issue was whether defense counsel provided ineffective assistance by failing to request proper unanimity instructions. During closing arguments, the State explicitly told the jury that “those two counts can be fulfilled with any two of those experiences” and that “any two of those incidents can be the elements of both of these counts.” Neither the court nor defense counsel objected to this statement, and no specific unanimity instructions were requested.

Court’s Analysis and Holding

The court applied the two-part test for ineffective assistance of counsel claims. First, regarding deficient performance, the court emphasized that the Sixth Amendment, Article I, Section 10 of the Utah Constitution, and Utah Rules of Criminal Procedure require unanimous verdicts. Importantly, “the requirement of unanimity is not met if a jury unanimously finds only that a defendant is guilty of a crime”—instead, the jury must reach “unanimity as to each count of each distinct crime charged.”

The court found counsel’s performance deficient because nothing conclusively linked the allegations to specific counts. While the jury instructions linked each count to a timeframe, they did not link each count to particular acts since the victim never testified about when incidents occurred. The prosecutor’s comments directly contradicted basic principles of unanimity by inviting a “mix-and-match” approach.

Regarding prejudice, the court found the ambiguous instructions, inconsistent evidence, and State’s invitation to apply any act to any charge undermined confidence in the outcome. The jury deliberated nearly seven hours before reaching an impasse, then returned with a split verdict after additional instruction, suggesting the jury struggled with the evidence.

Practice Implications

This decision reinforces that when the State presents evidence of more criminal acts than charges filed, defense counsel must request specific unanimity instructions or special verdict forms requiring the jury to specify which acts support each conviction. The case serves as a warning about prosecutors’ attempts to lower their burden of proof through ambiguous charging strategies. Trial courts should also ensure all jury communications are properly recorded and avoid off-the-record interactions with deliberating juries.