Can a defendant lose appellate review of an Allen charge by failing to object after the verdict? State v. Hall Explained

Background and facts

Michael Hall was convicted of two counts of aggravated sexual abuse of a child following a seven-day jury trial in the Second District Court. The child victim, Molly, testified to two discrete incidents of genital touching — one that occurred in a TV room and one that occurred in a bedroom. During deliberations, the jury sent a note asking whether a failure to reach unanimity on one count would result in a not-guilty verdict. Without consulting counsel, the trial court responded in writing and directed the jury to continue deliberating. The jury later returned a split verdict, convicting Hall on Counts 2 and 3 and acquitting him on all remaining counts. When the court disclosed the note exchange to the parties after the verdict was announced, defense counsel stated, “None from the defense.”

Key legal issues

Hall raised two issues on appeal. First, he argued that the jury instructions violated the Unanimous Verdict Clause of the Utah Constitution because Counts 2 and 3 were indistinguishable. Second, he argued that the trial court’s supplemental Allen charge — delivered without notifying counsel — was coercive and required reversal. The State conceded in its brief that the Allen charge was “unbalanced” but urged affirmance on procedural grounds.

Court’s analysis and holding

On the unanimity issue, the court applied the correctness standard and found no error. The State had made a clear prosecutorial election linking Count 2 to the TV room incident and Count 3 to the bedroom incident. The jury instructions reinforced that election in four separate instructions, and the prosecutor referenced those instructions during closing argument. The court held that both prosecutorial election and specific unanimity instructions independently satisfied the Unanimous Verdict Clause under State v. Chadwick, 2024 UT 34, and State v. Baugh, 2024 UT 33.

On the Allen charge issue, the court held the claim was unpreserved. Defense counsel had the opportunity to object when the trial court disclosed the note exchange before the verdict was read, but instead affirmatively waived any objection. Hall failed to invoke any preservation exception — ineffective assistance of counsel, exceptional circumstances, futility, or plain error — in his opening brief. Raising the exceptional circumstances argument for the first time in the reply brief constituted waiver. The court declined to reach the merits.

Judge Mortensen’s concurrence emphasized that trial courts should always consult counsel before responding to jury notes, particularly on verdict-urging instructions. Citing State v. Maestas and State v. Johnson, he noted that consulting counsel protects verdicts, respects defendants’ rights, and takes only minutes.

Practice implications

This opinion contains two critical lessons for Utah appellate practitioners. First, where multiple similar counts arise from the same course of conduct, prosecutorial election combined with location-specific unanimity instructions is a reliable method for satisfying the Unanimous Verdict Clause. Defense counsel should scrutinize whether the State’s election is genuine and whether instructions adequately distinguish each count. Second, when a trial court discloses ex parte communications with a deliberating jury only after a verdict is returned, practitioners must immediately identify every available preservation exception and assert all of them in the opening brief. Waiting until the reply brief — or affirmatively disclaiming plain error review, as Hall did — will forfeit review entirely, even where the opposing party concedes the instruction was legally defective.