When does a trial counsel's failure to request a jury instruction constitute ineffective assistance? State v. Hassan Explained

Background and facts

Haydar Mohamed Hassan was convicted of aggravated sexual abuse of a child, rape of a child, and object rape for sexually abusing his stepdaughter Anisa over the course of several years. The abuse spanned multiple residences in the Salt Lake area and included both digital penetration and penile penetration. Anisa disclosed the abuse to her school counselor in 2016, and years later, after a family dispute, reported to Pittsburgh police, which led to Utah charges in 2021. At a two-day jury trial in May 2023, the jury convicted Hassan on three counts and acquitted him of aggravated kidnapping. Hassan appealed, raising four claims of ineffective assistance of counsel and challenging the trial court’s admission of bodycam footage of Anisa’s police interview at her high school.

Key legal issues

Hassan argued that trial counsel was deficient for: (1) failing to move for a directed verdict based on inherent improbability of Anisa’s testimony; (2) failing to move for a directed verdict on the rape of a child charge for insufficient age evidence; (3) failing to request a jury instruction barring use of the co-victim sister’s abuse as propensity evidence on the object rape charge; and (4) failing to request an instruction specifically prohibiting conviction based solely on the sister’s abuse. He also contended that the bodycam footage was irrelevant and that its admission violated rule 403 of the Utah Rules of Evidence.

Court’s analysis and holding

The Utah Court of Appeals affirmed on all issues. On the inherent improbability argument, the court found that apparent inconsistencies in Anisa’s testimony were attributable to language barriers and prosecutorial confusion in questioning, not true material contradictions. The court reiterated that corroborating evidence need not substantiate every detail — it need only provide a second source for at least some aspects of the witness’s account. On the age element for rape of a child, the court held that circumstantial evidence — including Anisa’s birthdate, her kindergarten start year, her agreement that the laundry room incident occurred during the 2011–2012 school year, and Hassan’s own testimony — was sufficient for the jury to infer she was under fourteen without speculation. On the propensity instruction, the court assumed without deciding that counsel was deficient for failing to seek a limiting instruction under rule 404(c) regarding the sister’s abuse as it related to the object rape charge, but found no prejudice given the strong independent corroboration of that charge. Instruction 42’s general directive — that the jury could not convict based on “some other acts at another time” — adequately covered the remaining concern. As to the bodycam footage, the court held it was relevant to Anisa’s demeanor after disclosure and to rebut Hassan’s fabrication defense, and that the footage was less emotionally charged than the trial testimony itself.

Practice implications

Practitioners should note that when raising ineffective assistance claims for failure to file a directed verdict motion, an appellate court will deny the claim if reasonable counsel could have predicted the motion would fail. Counsel must affirmatively brief why the motion had a realistic chance of success. Additionally, when rule 404(c) propensity evidence is admitted for some charges but not others, defense counsel should request charge-specific limiting instructions — failure to do so may be deficient performance, even if prejudice is difficult to establish. Finally, bodycam footage showing a victim’s non-verbal demeanor after disclosure is likely admissible to corroborate emotional state and rebut fabrication theories, particularly where the case already involves inherently emotional evidence.