When must defense counsel request specific unanimity instructions in multiple-act cases? State v. Baugh Explained

The Utah Supreme Court’s recent decision in State v. Baugh provides critical guidance for criminal defense attorneys handling cases involving multiple alleged acts that could support charges with identical elements. The court affirmed the court of appeals’ finding that defense counsel rendered ineffective assistance by failing to request specific unanimity instructions.

Background and Facts

Baugh was charged with two counts of aggravated sexual abuse of a child based on alleged conduct occurring “on or about 2012” and “on or about 2014.” At trial, the victim testified about three separate instances of abuse: two at the family home and one at defendant’s apartment. Critically, the prosecution presented evidence distinguished by location but charged counts distinguished by date. In closing argument, the prosecutor told jurors they could use “any two” of the three alleged instances to fulfill the elements of the charged counts.

Key Legal Issues

The central issue was whether defense counsel’s failure to request specific unanimity instructions constituted ineffective assistance. Under Utah’s Unanimous Verdict Clause, the jury must be unanimous “as to a specific crime and as to each element of the crime.” The question was whether the general unanimity instruction given was sufficient when multiple acts could support identical charges.

Court’s Analysis and Holding

The court applied the two-prong Strickland test for ineffective assistance of counsel. First, it found deficient performance because the circumstances created an “unacceptable risk of a non-unanimous verdict” that reasonable counsel would have recognized. The evidence-to-charges mismatch (location-based evidence for date-based charges), combined with the prosecutor’s “any two” instruction and lack of prosecutorial election, made the risk clear. Second, the court found prejudice because there was a reasonable probability the outcome would have differed with proper instructions, given the ambiguous evidence and lack of overwhelming proof on any particular act.

Practice Implications

Defense attorneys must carefully analyze multiple-act cases where charges have identical elements. When the prosecution presents evidence of several acts that could satisfy the same charges, counsel should request specific unanimity instructions requiring the jury to agree on which particular acts support each count. The absence of such instructions can effectively lower the prosecution’s burden of proof and create constitutional violations. This decision reinforces that there is no strategic advantage to allowing jury confusion about unanimity requirements.