When must defense counsel request unanimity instructions for forcible sexual abuse charges? State v. Macleod Explained

The Utah Court of Appeals in State v. Macleod addressed when defense counsel’s failure to request proper unanimity instructions constitutes ineffective assistance of counsel in cases involving multiple acts of forcible sexual abuse.

Background and Facts

Macleod was charged with rape, object rape, and two counts of forcible sexual abuse based on allegations that he sexually assaulted a woman at her home. The State presented evidence that Macleod touched the victim’s breasts and buttocks without consent at multiple locations: a grocery store, during a basketball game at her house, and in her bedroom. The jury convicted on all counts.

Key Legal Issues

The primary issue was whether trial counsel was ineffective for failing to request unanimity instructions that would ensure jurors agreed on which specific acts formed the basis for each forcible sexual abuse conviction. Under Utah’s constitution, criminal verdicts must be unanimous not just as to guilt, but as to the specific criminal acts that support each charge.

Court’s Analysis and Holding

The court held that counsel’s performance was deficient because the evidence supported multiple touching incidents that could satisfy each count, yet the jury received only generic unanimity instructions. The forcible sexual abuse statute creates separate offenses for each unlawful touch of enumerated body parts. Where evidence shows multiple possible acts, jury instructions must either link specific acts to each charge or require unanimous agreement on the same act for each count.

The court found prejudice because the prosecutor’s closing argument failed to clearly identify which touches corresponded to each count. Although the prosecutor stated the charges “occurred on the basketball court,” the argument also referenced touching “in the store,” creating ambiguity about which acts the jury should consider.

Practice Implications

This decision reinforces that practitioners must carefully analyze whether evidence supports multiple acts that could satisfy the same charge. In forcible sexual abuse cases, each touching incident constitutes a separate offense, making proper unanimity instructions critical. Defense counsel cannot rely on prosecutorial arguments to cure inadequate instructions unless those arguments clearly and unambiguously identify which acts correspond to each count. The court’s reversal of the forcible sexual abuse convictions while affirming the rape and object rape convictions demonstrates how unanimity issues can affect different charges differently within the same case.