When must Utah courts give specific jury unanimity instructions in child abuse cases? State v. James Explained

The Utah Court of Appeals recently addressed an important issue regarding jury unanimity instructions in child sexual abuse cases where prosecutors present evidence of multiple incidents but charge fewer counts than the number of alleged acts.

Background and Facts

James Louis James was charged with three counts of aggravated sexual abuse of his daughter Ashley, who disclosed the abuse when she was fifteen. The State charged Count 1 based on swimming pool incidents, Count 2 on Friday morning incidents before school, and Count 3 on shower and bathing incidents. For Count 3 specifically, Ashley testified about two distinct types of incidents: shower incidents where James would join her and hug her while washing her hair and back, and separate bath incidents where he would watch her bathe in minimal water and, according to her CJC interview, sometimes wash her when she couldn’t complete the task herself.

Key Legal Issues

The primary issue was whether defense counsel rendered ineffective assistance by failing to request a more specific jury unanimity instruction. The trial court gave a standard MUJI 2d CR431 instruction identifying which category of incidents corresponded to each count, but did not give a MUJI 2d CR432 instruction requiring jury unanimity on the specific act within each category. This created a potential problem where some jurors might convict based on shower incidents while others based their verdict on bath incidents.

Court’s Analysis and Holding

The Court of Appeals found that counsel’s performance was deficient regarding Count 3 but not Counts 1 and 2. For Counts 1 and 2, while multiple incidents occurred within each category, Ashley’s testimony was “entirely undifferentiated” – she made no effort to distinguish between individual incidents within each category. This meant jurors had “no meaningful and relevant basis upon which to distinguish the various acts,” making prejudice unlikely.

However, Count 3 was different because Ashley did differentiate between shower and bath incidents, describing different types of contact and providing inconsistent details about touching during bath incidents. The court found this created “a reasonable evidentiary basis for the jury to potentially conclude that the shower incidents Ashley described constituted sexual abuse but that the bath incidents did not, or vice versa.”

Practice Implications

This decision provides important guidance for Utah practitioners handling multi-incident abuse cases. When prosecutors present evidence of more criminal acts than charged counts, defense counsel should request MUJI 2d CR432 instructions to ensure jury unanimity on specific acts. The key distinction is whether the evidence allows jurors to meaningfully differentiate between incidents within each charged count. Where such differentiation is possible, the failure to request appropriate unanimity instructions may constitute ineffective assistance of counsel warranting reversal.