Can Utah courts commit plain error on jury instructions when counsel agrees to them? State v. Navarrete Explained

In State v. Navarrete, the Utah Court of Appeals addressed whether a trial court commits plain error when it provides jury instructions that counsel agreed to, even if additional instructions might have been warranted based on the evidence presented.

Background and Facts

Miguel Navarrete was charged with three counts of aggravated sexual abuse of his eight-year-old stepdaughter, Bella. The charges were based on three separate incidents Bella described in a forensic interview. At trial, one count was dismissed and the jury acquitted on another, but convicted Navarrete on the “broom incident” count. During cross-examination, Bella testified that this incident involved touching both upstairs in the living room and downstairs in her brother’s bedroom—potentially two separate acts within a single charge.

Key Legal Issues

Navarrete raised two challenges on appeal: first, that the trial court committed plain error in its jury unanimity instruction by failing to require unanimity on which specific act supported the conviction; and second, that the court should have directed a verdict because Bella’s testimony was inherently improbable.

Court’s Analysis and Holding

The court rejected both challenges. Regarding the jury instruction, the court found no obvious error warranting plain error review. The trial court had given Instruction 30, which properly required unanimity on the specific way the offense was committed (touching genitals, buttocks, or both). While an additional instruction requiring unanimity on which specific act occurred might have been appropriate given evidence of multiple touchings, the court noted that defense counsel had agreed to the instructions without objection. The court applied principles similar to invited error, finding it unfair to hold the trial court responsible for errors the parties asked it to make.

On the sufficiency challenge, the court found that Navarrete failed to preserve his claim that Bella’s testimony was inherently improbable under State v. Robbins. His directed verdict motion only argued general insufficiency based on conflicting testimony, without specifically requesting that Bella’s testimony be disregarded as inherently improbable. The court affirmed that sufficient evidence supported the conviction when viewed in the light most favorable to the State.

Practice Implications

This case demonstrates the critical importance of preservation of error in jury instruction challenges. When evidence suggests multiple acts within a single charge, practitioners should specifically request appropriate jury unanimity instructions during instruction conferences. The court’s analysis shows that agreeing to instructions without objection can foreclose later challenges, even under plain error review. For inherently improbable testimony challenges, practitioners must specifically raise the Robbins standard at trial—general insufficiency arguments are inadequate to preserve such claims for appeal.