This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 33
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
BREVAN BRINGHURST BAUGH,
Respondent.
No. 20220272
Heard December 13, 2023
Filed August 15, 2024
On Certiorari to the Utah Court of Appeals
First District, Cache County
The Honorable Angela Fonnesbeck
No. 181100862
Attorneys:
Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,
Salt Lake City, for petitioner
Emily Adams, Freya Johnson, Melissa Jo Townsend, Bountiful,
for respondent
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
JUDGE BEAN, and JUDGE HOWELL joined.
Having recused themselves, JUSTICE HAGEN and JUSTICE POHLMAN
do not participate herein; DISTRICT COURT JUDGE JOSEPH BEAN and
DISTRICT COURT JUDGE ANTHONY HOWELL sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 In 2018, Brevan Bringhurst Baugh was charged with two
counts of aggravated sexual abuse of a child. At trial, the
STATE v. BAUGH
Opinion of the Court
prosecution introduced evidence of three instances of alleged
abuse, 1 with the instances distinguished based on the location in
which they occurred. But the two counts charged were
distinguished based on date rather than location. And in the State’s
closing argument, it told the jurors they could use “any two” of the
three alleged instances of abuse to fulfill the elements of the
charged counts. The jury convicted Baugh on one count and
acquitted him on the other.
¶2 Baugh appealed. He argued there was a risk that the jury
did not unanimously agree on which instance of abuse supported
the count on which he was convicted. Baugh also contended that
his counsel rendered constitutionally ineffective assistance by
failing to request jury instructions that would have properly
instructed the jury on its constitutional duty to be unanimous as to
each element of each convicted count. The court of appeals agreed
with Baugh and vacated his sentence.
¶3 We granted the State’s certiorari petition. We affirm.
BACKGROUND
¶4 Between 2012 and 2014, Brevan Bringhurst Baugh lived at
his family home (Nibley Home) with his daughter Sasha 2 and her
mother. In April 2014, Baugh and Sasha’s mother commenced
divorce proceedings, and Baugh moved into a one-bedroom
apartment (Falls Apartment). Sasha and her siblings visited Baugh
while he was living at Falls Apartment. Several years later, Sasha
revealed to her therapist that Baugh had abused her, and her
therapist reported the allegations to the police.
¶5 During the investigation into the abuse, a detective asked
Sasha to call Baugh while the detective listened in. The detective’s
intent was to get Baugh to confess to the crimes. While on the call,
Baugh resisted admitting to the allegations and suggested that
Sasha was not remembering things correctly. He eventually
apologized to Sasha but remained adamant that the apology was
__________________________________________________________
1 We use “alleged abuse” here because, although Baugh was
convicted of one count of aggravated sexual abuse of a child and
acquitted of one count, we cannot know on which instance of
touching the jury based its conviction. Therefore, when referring to
the separate instances of touching, we use the term “alleged.”
2 A pseudonym.
2
Cite as: 2024 UT 33
Opinion of the Court
only for inadvertently exposing Sasha to pornography and for her
walking in on him while he was masturbating. When pressed,
Baugh acknowledged that if Sasha remembered abuse occurring,
he wouldn’t deny it. But he insisted that he had no recollection of
abusing Sasha, blaming his failure to remember on his marijuana
use at the time of the alleged acts.
¶6 After this confrontation call, the detective brought Baugh
in for questioning. Baugh restated that he and Sasha didn’t “have
the same recollection of the events.” But he did admit to exposing
Sasha to pornography and that she had once seen him
masturbating. The detective also asked whether Baugh had been
abusing Sasha “for years.” Baugh responded, “For years[?] Okay
no. No.” The detective then asked when was the last time he had
abused Sasha. Baugh responded that it was at Nibley Home.
¶7 On July 9, 2018, Baugh was charged with two counts of
aggravated sexual abuse of a child, a first-degree felony, in
violation of Utah Code subsection 76-5-404.1(4). The first count was
based on alleged conduct that occurred on or about 2012. The
second count was based on alleged conduct that occurred on or
about 2014.
¶8 At trial, Sasha testified that Baugh made her touch his
penis three times between 2012 and 2014. Sasha stated that during
each of these alleged incidents, Baugh put Sasha’s hand on his
penis and moved it up and down until “white stuff came out.”
Sasha testified that the first two alleged incidents occurred while
Baugh and Sasha were lying on Baugh’s bed in Nibley Home. The
final alleged incident occurred when Sasha was twelve and Baugh
had moved out of Nibley Home and into Falls Apartment.
¶9 Baugh countered Sasha’s testimony by testifying that none
of the alleged acts occurred. He insisted that, until Sasha’s
confrontation call, he had no suspicion of the accusations. While
Baugh did admit to accidentally exposing Sasha to pornography
and further admitted that she had walked in on him while he was
masturbating, he remained adamant that he never touched Sasha
and he never had Sasha touch him. He also insisted that the
comments he made during the phone call and subsequent
interrogations were not confessions to having abused Sasha. Baugh
testified that his answer to the final question the detective asked
him during the interrogation was describing the last time he
exposed Sasha to pornography. And when questioned about the
other statements he made on the confrontation call, he stated that
3
STATE v. BAUGH
Opinion of the Court
he did not outright deny the allegations because he wanted to
validate Sasha’s feelings.
¶10 During closing argument, the prosecution stated that the
two counts charged could be “fulfilled with . . . any two of those
incidents that [Sasha] described, those can be the elements of both
of these counts.” Defense counsel did not object to this statement
nor request more specific unanimity instructions.
¶11 The jury was then instructed. Regarding both counts of
sexual abuse of a child, the jury was told that it must find:
(1) the Defendant, Brevan Baugh, (2) occupied a
position of special trust in relation to Sasha, and
(3) intentionally, knowingly, [or] recklessly touched
the anus, buttocks, genitalia or breast of Sasha or
otherwise took indecent liberties with her or caused
her to take indecent liberties with him, (4) with the
intent to arouse or gratify the sexual desire of any
person regardless of the sex of any participant, and
(5) at the time of the offenses Sasha was under the age
of fourteen.
The jury was also given a general unanimity instruction: “Because
this is a criminal case, every single juror must agree with the verdict
before the Defendant can be found guilty or not.”
¶12 Ultimately, the jury acquitted Baugh of Count One and
convicted him of Count Two. Baugh appealed the conviction. He
argued that his counsel provided ineffective assistance in failing to
request more specific unanimity instructions.
¶13 Article I, section 10 of the Utah Constitution contains the
Unanimous Verdict Clause, which reads, “In criminal cases the
verdict shall be unanimous.” To render a valid verdict under that
clause, the jury must be unanimous on all elements of the charged
crime. 3 Jury instructions must adequately convey this unanimity
requirement to the jury. 4
__________________________________________________________
3 State v. Hummel, 2017 UT 19, ¶ 29,
393 P.3d 314.
4 See Meeks v. Peng,
2024 UT 5, ¶¶ 35, 39,
545 P.3d 226 (explaining
that jury instructions must “fairly instruct the jury on the law
applicable to the case,” and must “accurately convey the law”
(cleaned up)).
4
Cite as: 2024 UT 33
Opinion of the Court
¶14 In reviewing Baugh’s appeal, the court of appeals applied
these principles and reasoned that, much like in its recent decision
in State v. Alires, 5 Baugh’s counsel’s performed deficiently by
failing to request jury instructions that instructed the jury to be
unanimous on which specific act supported which specific charge. 6
It further reasoned that these ambiguous instructions could have
led some jurors to convict Baugh based on one alleged instance of
abuse and others to convict on another alleged instance, in violation
of the unanimity requirement. 7 Because of that risk, the court of
appeals held that Baugh was prejudiced by defense counsel’s
deficient performance and vacated his conviction. 8 We granted the
State’s petition for certiorari.
STANDARD OF REVIEW
¶15 The State challenges the court of appeals’ determination
that Baugh’s counsel provided constitutionally ineffective
assistance by failing to request more specific unanimity
instructions. “[W]e review the court of appeals’ decision for
correctness.” 9
ANALYSIS
¶16 An ineffective assistance of counsel claim has two
elements. “First, the defendant must show that counsel’s
performance was deficient.” 10 “Second, the defendant must show
that the deficient performance prejudiced the defense.” 11 “[F]ailure
to establish either prong is fatal to an ineffective assistance of
counsel claim.” 12
¶17 The State argues that neither prong of this test is satisfied.
First, the State contends that Baugh’s counsel’s performance was
reasonable because Unanimous Verdict Clause caselaw regarding
__________________________________________________________
5 2019 UT App 206,
455 P.3d 636.
6 State v. Baugh,
2022 UT App 3, ¶¶ 15–19,
504 P.3d 171.
7 Id. ¶ 21.
8 Id. ¶¶ 26–27.
9 State v. McNeil,
2016 UT 3, ¶ 14,
365 P.3d 699.
10 Strickland v. Washington,
466 U.S. 668, 687 (1984).
11
Id.
12 State v. Centeno,
2023 UT 22, ¶ 64,
537 P.3d 232 (cleaned up).
5
STATE v. BAUGH
Opinion of the Court
how a jury must be instructed on unanimity is ambiguous. Second,
the State argues that the court of appeals erred in its prejudice
analysis by failing to analyze whether there was a reasonable
probability that a jury would have convicted Baugh absent
counsel’s deficient performance. The appellate court’s error, the
State contends, is significant because Baugh did not carry his
burden of showing that any alleged deficient performance
prejudiced him.
¶18 We disagree with the State on both points.
I. BAUGH’S COUNSEL PERFORMED DEFICIENTLY BY FAILING TO
REQUEST A MORE DETAILED UNANIMITY INSTRUCTION
¶19 To constitute deficient performance, counsel’s
representation must fall “below an objective standard of
reasonableness.” 13 Reasonableness is determined by “prevailing
professional norms.” 14 Whether “counsel’s actions can be
considered strategic plays an important role in our analysis” of
whether counsel’s performance was deficient, but lack of strategic
advantage is not conclusive in determining whether counsel’s
performance was unreasonable. 15 “A reviewing court must always
base its deficiency determination on the ultimate question of
whether counsel’s act or omission fell below an objective standard
of reasonableness.” 16
¶20 The State challenges the court of appeals’ deficient
performance analysis, claiming that the court of appeals
misapprehended Unanimous Verdict Clause caselaw. In its
analysis, the court of appeals relied on Alires to determine that
Baugh’s counsel’s performance was deficient. 17 The court reasoned
that, in Alires, it had correctly understood Unanimous Verdict
Clause caselaw. In that case, the court dictated that “[w]here
neither the charges nor the elements instructions link each count to
a particular act, instructing the jury that it must agree as to which
criminal acts occurred is critical to ensuring unanimity on each
__________________________________________________________
13 Strickland v. Washington, 466 U.S. 668, 688 (1984).
14
Id.
15 State v. Ray,
2020 UT 12, ¶¶ 34, 36,
469 P.3d 871 (cleaned up).
16 Id. ¶ 36.
17 State v. Baugh,
2022 UT App 3, ¶¶ 15–19,
504 P.3d 171 (citing
State v. Alires,
2019 UT App 206,
455 P.3d 636).
6
Cite as: 2024 UT 33
Opinion of the Court
element of each crime.” 18 And because neither the charges, the jury
instructions, nor the State’s presentation of evidence in Baugh’s
case linked specific conduct to each count, the court of appeals held
that Baugh’s counsel’s failure to request more specific unanimity
instructions constituted deficient performance. 19
¶21 But the State argues that the caselaw regarding the kind of
jury instructions necessary to ensure unanimity was not clear when
Alires was decided. The court of appeals had, according to the State,
incorrectly treated State v. Saunders 20—a plurality opinion—as
established precedent and had extended its narrow holding past
what this court intended. Without Saunders as established
precedent, the State argues that the court of appeals’ reasoning falls
apart because any remaining binding precedent was either not
dispositive or inapplicable.
¶22 We now begin our analysis with our own review of the
relevant caselaw on the Unanimous Verdict Clause in article I,
section 10 of the Utah Constitution.
¶23 The Unanimous Verdict Clause requires that “the [jury’s]
verdict shall be unanimous” in all criminal cases. 21 It is not enough
that the jury find the defendant “guilty of some crime.” 22 For
example, a verdict would not be unanimous “if some jurors found
a defendant guilty of a robbery committed on December 25, 1990,
in Salt Lake City, but other jurors found him guilty of a robbery
committed January 15, 1991, in Denver, Colorado, even though all
jurors” agreed that he was guilty of robbery. 23 The jury must be
unanimous “as to a specific crime and as to each element of the
crime” to comply with the Unanimous Verdict Clause. 24 Neither
party disputes this premise.
¶24 Although our caselaw is clear that the jury must be
unanimous as to each element of each count of a crime, it is less
__________________________________________________________
18 Id. ¶¶ 14 n.3, 18 (quoting Alires,
2019 UT App 206, ¶ 23).
19
Id. ¶¶ 16–19.
20
1999 UT 59,
992 P.2d 951.
21 UTAH CONST. art. I, § 10.
22 Hummel,
2017 UT 19, ¶ 27,
393 P.3d 314 (cleaned up).
23 Id. ¶ 28 (cleaned up).
24 Saunders,
1999 UT 59, ¶ 60 (plurality opinion).
7
STATE v. BAUGH
Opinion of the Court
clear how that unanimity requirement must be conveyed to the jury
in multiple-act cases like Baugh’s, where a defendant is charged
with multiple counts of a crime with identical elements. 25
¶25 In Saunders, the defendant was charged with one count of
sexual abuse of a child. 26 The prosecution presented evidence of
several acts, any one of which could satisfy the touching element of
the charge.27 The unanimity instruction given to the jury stated that
there was “no requirement that the jurors be unanimous about
precisely which act occurred or when or where the act or acts
occurred.” 28 On appeal, we held that it was plain error for the trial
court to give these instructions, as they could have led the jurors to
believe that it was acceptable to render a non-unanimous verdict.29
But Saunders did not establish clear precedent on multiple-act cases
because the relevant portion of the opinion was a plurality. 30
¶26 Our next case on the issue, State v. Evans, provided no
more clarity regarding the form jury instructions should take to
ensure a unanimous verdict.31 In that case, the defendant
challenged jury instructions that presented two alternative theories
for finding aggravating factors, without mentioning unanimity. 32
__________________________________________________________
25 We note that we establish in State v. Chadwick—which is
published simultaneously with this case—how unanimity must be
conveyed to the jury in multiple-act cases in which charges are not
connected to specific conduct in the jury instructions. 2024 UT 34,
__ P.3d __.
26 Saunders,
1999 UT 59, ¶ 4. Saunders was charged with
multiple offenses, but the solitary sexual abuse charge is the only
one relevant to our analysis.
27 Id. ¶ 5.
28 Id. ¶ 65.
29 Id. ¶¶ 65, 68 (plurality opinion); id. ¶ 70 (Howe, C.J.,
concurring in part and dissenting in part); id. ¶ 79 (Zimmerman, J.,
concurring in part and dissenting in part).
30 See id. ¶¶ 67, 68 (Russon, J., concurring in the result); id. ¶ 70
(Howe, C.J., concurring in part and dissenting in part); id. ¶ 79
(Zimmerman, J., concurring in part and dissenting in part).
31
2001 UT 22,
20 P.3d 888.
32
Id. ¶¶ 15–16.
8
Cite as: 2024 UT 33
Opinion of the Court
In holding that it was not plain error for the court to give these jury
instructions, we stated that the instructions created the risk of only
slight confusion as to the unanimity required by the jury.33 The
State argues that Evans establishes that the lack of a specific
unanimity instruction only ever creates a risk of “slight confusion”
for a jury. But that reads too much into this court’s opinion.
¶27 The Evans court stated that it was “unconvinced that the
slight confusion that may have arisen from the wording of the
instructions used [at trial] present[ed] a reasonable likelihood of a
more favorable result for defendant.” 34 Such language indicates a
case- and fact-specific holding, rather than a general
pronouncement, and we decline to extend this holding beyond that
case.
¶28 In State v. Alires, which had not been decided at the time of
Baugh’s trial, the court of appeals surveyed the state of the law
regarding jury unanimity instructions in multiple-act cases. 35 In
Alires, the defendant was charged with six counts of aggravated
sexual abuse of a child. 36 But, as in Evans, the jury instructions did
not connect each count to a separate instance of touching. 37 The jury
was given a general unanimity instruction informing it that all
jurors must be unanimous regarding the guilt of the defendant. 38
During deliberations, the jury asked twice for clarification “on how
the counts work,” and asked in particular how to “weigh each
count when they are all the same.” 39 The court referred the jury
back to its instructions. 40 The jury convicted Alires on two counts
and acquitted him on the rest. 41
__________________________________________________________
33 Id. ¶ 17.
34 Id.
35 2019 UT App 206.
36 Id. ¶ 1.
37 Id. ¶ 11.
38 Id. ¶ 23 n.5.
39 Id. ¶ 12.
40 Id.
41 Id.
9
STATE v. BAUGH
Opinion of the Court
¶29 The court of appeals reviewed the jury’s verdict to
determine whether counsel was ineffective for failing to request
more specific unanimity instructions. 42 It reasoned that the state of
the law “should have been readily apparent” based on our holding
in Saunders: “[w]here neither the charges nor the elements
instructions link each count to a particular act, instructing the jury
that it must agree as to which criminal acts occurred is critical to
ensuring unanimity on each element of each crime.” 43 This blanket
statement fails to recognize the reduced weight that Saunders must
be given as a plurality opinion. Because the relevant portion of
Saunders did not represent the opinion of the majority of the court,
the court of appeals could rely only on that case’s outcome as
binding precedent, not its reasoning. 44
¶30 Although the court of appeals may have overstated the
weight of the holding in Saunders, that case was still the most
relevant precedent at the time and thus an indicator to reasonable
counsel of the range of appropriate actions. Relevant case law is one
of several factors to consider in assessing the reasonableness of
counsel’s performance. And that counsel’s performance was
objectively unreasonable because not requesting specific unanimity
instructions effectively lowered the State’s burden of proof was
another factor. Taken together, these two factors still support the
court of appeals’ conclusion that Alires’s counsel performed
deficiently despite the court’s overstatement of Saunders as binding
precedent.
¶31 Having reviewed the state of the law regarding the
standard for instructing a jury on unanimity, we turn to Baugh’s
case. Despite the unsettled law in this area, it is clear in Baugh’s
case that the jury was not adequately instructed.
¶32 Baugh was charged with sexual abuse of a child. Under
Utah Code subsection 76-5-404.1(2)(a), a person is guilty of sexual
abuse of a child if “the actor: . . . [1] touches, whether over or under
__________________________________________________________
42 Id. ¶ 16.
43 Id. ¶¶ 23–24 (citing Saunders, 1999 UT 59, ¶ 65 (plurality
opinion)).
44 See State v. Mohi,
901 P.2d 991, 996 (Utah 1995) (explaining that
plurality opinions “do not constitute binding precedent); see also
State v. Giron,
943 P.2d 1114, 1121 (Utah 1997) (stating that a
plurality opinion’s analysis “is not binding”).
10
Cite as: 2024 UT 33
Opinion of the Court
the clothing, the buttocks or pubic area of a child; . . . the breast of
a female child; or . . . otherwise takes indecent liberties with a
child,” and “[2] the actor’s conduct is with intent to . . . cause
substantial emotional or bodily pain to any individual; or . . .
arouse or gratify the sexual desire of any individual.” Caselaw is
clear that the jury must be unanimous as to each element of each
count of that crime. 45 In practice, this means that the jury must
agree on which incident of touching satisfies each count. If the jury
does not agree on which act relates to each count, then its verdict
violates the Unanimous Verdict Clause.
¶33 The jury in Baugh’s case was given a general unanimity
instruction that read, “Because this is a criminal case, every single
juror must agree with the verdict before the defendant can be found
guilty or not guilty.” Trial counsel did not request a more specific
unanimity instruction.
¶34 The circumstances of Baugh’s case created an
unacceptable risk of a non-unanimous verdict, and a reasonable
attorney would have recognized that risk. Baugh was charged with
two counts of aggravated sexual abuse of a child for alleged acts
occurring in 2012 and 2014. During his trial, the State presented
evidence to the jury of three instances of touching. But the jury was
not told when these alleged instances occurred, only where the
alleged instances occurred. The State presented evidence of two
instances of touching that occurred at Nibley Home and one that
occurred at Falls Apartment.
¶35 The State’s presentation of evidence created tension
between the evidence and the counts, which were distinguished
only by date: one count for 2012 and one count for 2014. Because
Baugh lived in both Nibley Home and Falls Apartment in 2014, that
tension left room for ambiguity. And that ambiguity left room for
non-unanimity. The jurors could agree that touching occurred in
2014 but disagree as to whether the specific instance of touching
occurred at Nibley Home or Falls Apartment. And did the jury’s
verdict did not eliminate the problem. The jury acquitted Baugh on
the 2012 count but convicted him on the 2014 count, leaving open
the possibility that the jurors may have disagreed on which specific
instance of touching the State had proven.
__________________________________________________________
45 See supra ¶ 24.
11
STATE v. BAUGH
Opinion of the Court
¶36 The State also declined to connect specific instances of
touching with a count. 46 We have noted that “courts in Utah and
elsewhere have determined that a unanimity problem can be
remedied by prosecutorial election.”47 That is, the harm that can
flow from a lack of a specific unanimity instruction might, in some
cases, be mitigated if the prosecutor elects, in closing argument, to
spell out for the jury which alleged actions correspond to which
charged counts. The absence of prosecutorial election here further
indicates that reasonable counsel would have been concerned
about unanimity because there was nothing to mitigate the harm of
erroneous jury instructions.
¶37 The presence of a legal error “does not necessarily mean
that defense counsel’s failure to object to the error amounted to
deficient performance.” 48 And there is a “wide range of reasonable
professional assistance.” 49 But taking each of the above
opportunities for jury confusion together, no reasonable attorney
would have failed to request more specific unanimity instructions.
¶38 Baugh’s counsel was presented with three instances of
touching that were not specifically attached to the two counts
charged. And in the State’s closing argument, it told the jury that it
could fulfill the counts with any two of the alleged instances of
conduct. This statement suggested to the jury that it could
__________________________________________________________
46 In criminal cases in which the State has not specified which
acts it relied on to support each charged count, it may elect to do so
during trial. See Alires, 2019 UT App 206, ¶¶ 22–23. We call this
decision prosecutorial election. See State v. Paule,
2024 UT 2, ¶¶ 77–
78, __ P.3d __. For example, in this case, the two counts of sexual
abuse were not connected to specific acts when charged. They were
distinguished only by approximate date. The State, in its closing
argument, could have elected to attach one of the three alleged acts
to a specific count instead of telling the jury that it could choose
from any of the three alleged acts to satisfy the elements of either
count. That election might have mitigated the harm flowing from
Baugh’s counsel’s failure to ask for a specific unanimity instruction.
But the State declined to make an election, and Baugh, as we
describe below, was harmed by his counsel’s failure to act.
47 Paule,
2024 UT 2, ¶ 78.
48 State v. Bonds,
2023 UT 1, ¶ 43,
524 P.3d 581.
49 Strickland,
466 U.S. at 689.
12
Cite as: 2024 UT 33
Opinion of the Court
impermissibly mix-and-match the instances of touching when
reaching its verdict. The high risk for non-unanimity was clear.
¶39 Further, there were no circumstances in this case that
mitigated the risk of a non-unanimous verdict. The evidence for
each of the instances of touching was fairly equal in persuasive
force. 50 So the evidence was not overwhelmingly stronger for any
one instance such that any reasonable jury could have only
convicted on that count.
¶40 And there was no strategic advantage to not requesting
more specific unanimity instructions. Doing so would not have
directed the jury to any especially damaging evidence, and failing
to do so effectively lowered the State’s burden of proof for the
touching element. 51
¶41 Because the risk of a non-unanimous verdict would have
been clear to reasonable counsel, Baugh’s counsel’s failure to
request more specific unanimity instructions was objectively
unreasonable. Therefore, his counsel’s performance was deficient.
II. BAUGH’S COUNSEL’S DEFICIENT PERFORMANCE
PREJUDICED BAUGH
¶42 To prevail on an ineffective assistance of counsel claim, the
defendant must show that “counsel’s errors actually had an
adverse effect on the defense,” 52 and that there is a “reasonable
probability that, but for [those] . . . errors, the result of the
proceeding would have been different.” 53 “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” 54 It is insufficient “for the defendant to show that the
__________________________________________________________
50 See Baugh, 2022 UT App 3, ¶ 22.
51 See Alires,
2019 UT App 206, ¶ 25 (explaining that failing to
request more specific unanimity instructions in the face of a risk of
a non-unanimous verdict “effectively lower[s] the State’s burden of
proof”).
52 State v. Beverly,
2018 UT 60, ¶ 30,
435 P.3d 160 (cleaned up).
53 Strickland v. Washington,
466 U.S. 668, 694 (1984); see also State
v. Grunwald,
2020 UT 40, ¶ 22,
478 P.3d 1 (explaining Strickland’s
prejudice standard).
54 Strickland,
466 U.S. at 694; see also Grunwald,
2020 UT 40, ¶ 22
(quoting Strickland,
466 U.S. at 694).
13
STATE v. BAUGH
Opinion of the Court
errors had some conceivable effect on the outcome of the
proceeding.” 55 And “a verdict or conclusion only weakly
supported by the record is more likely to have been affected by
errors than one with overwhelming record support.” 56
¶43 The State argues that the court of appeals failed to consider
whether the jury would have convicted absent defense counsel’s
error. In the State’s view, the court of appeals completed only a
portion of the Strickland prejudice analysis: whether the jury
convicted Baugh because of counsel’s deficient performance.
¶44 While we acknowledge the court of appeals may not have
signposted its inquiry as clearly as possible, we are satisfied that
the court conducted the requisite analysis. And we agree that
counsel’s deficient performance prejudiced Baugh.
¶45 The court of appeals began its analysis by correctly
summarizing Strickland’s prejudice standard. 57 The court then
considered the totality of the evidence before the jury. Sasha
testified about three instances of abuse—two occurring at Nibley
Home and one at Falls Apartment—but distinguished these
instances only by the location.58 And “[t]he jury instructions
distinguished the counts, not by location but based on the date of
the alleged abuse—2012 for count one and 2014 for count two.” 59
But in 2012, Baugh lived at both Nibley Home and Falls
Apartment.60
¶46 So the jury received evidence of the alleged instances of
touching based only on location but was expected to connect these
instances of touching to counts distinguished only by date. And
although only those instances taking place at Nibley Home could
have been connected to the first count, any of the three alleged
instances could have been connected to the 2014 count because
Baugh lived at both Nibley Home and Falls Apartment in 2014.
Given that the jury acquitted Baugh on the 2012 count and
__________________________________________________________
55 Strickland, 466 U.S. at 693.
56 State v. Newton,
2020 UT 24, ¶ 31,
466 P.3d 135 (cleaned up).
57 State v. Baugh,
2022 UT App 3, ¶ 20,
504 P.3d 171.
58
Id.
59
Id.
60 Id. ¶ 21.
14
Cite as: 2024 UT 33
Opinion of the Court
convicted him on the 2014 count, its verdict didn’t resolve the risk
that some jurors convicted based on an act that took place at Nibley
Home, while others convicted based on an act that occurred at Falls
Apartment.
¶47 Next, the court of appeals considered Baugh’s
“confessions” and his explanation of them at trial. During the
investigation, Sasha called Baugh to confront him about the
abuse. 61 The State argues that Baugh admitted to the abuse during
the call saying, “if you say I did it, then—then I’m sure I did,” and
“I’m not going to deny it.” Later, during interrogation, the detective
asked Baugh if he had been abusing Sasha for years, to which he
replied, “For years[?] Okay. No.” The State paints that as another
admission. And when asked when he last abused Sasha, Baugh
said it was “at the Nibley [Home].” A third admission, according
to the State.
¶48 But, as the court of appeals noted, Baugh’s statements
during the confrontation call and subsequent interrogations do not
amount to an unequivocal confession. 62 During the confrontation
call, interrogation, and at trial, Baugh maintained that he had not
abused Sasha. And he offered testimony at trial that his
“admissions” were simply an attempt to validate his daughter’s
feelings despite her “getting things mixed up.”
¶49 Finally, the court of appeals considered the State’s closing
argument, where the prosecutor told the jurors that the “two counts
can be fulfilled with . . . any two of those experiences” described at
trial and that “any two of those incidents . . . can be the elements of
both of these counts.” 63
¶50 Reviewing the evidence as a whole, the court of appeals
concluded that its “confidence in the outcome ha[d] been
undermined.” 64 Because the jury was instructed on the counts
based on the dates of the alleged instances but was only given
evidence of the counts based on the location of those instances, the
court reasoned, there was “a reasonable probability that the jurors
__________________________________________________________
61 See id. ¶ 22.
62 Id. ¶¶ 22–24.
63 Id. ¶ 25.
64 Id. ¶ 26.
15
STATE v. BAUGH
Opinion of the Court
did not agree on which act of alleged abuse supported each
count.” 65
¶51 And, relevant to the State’s claim that the court of appeals
did not consider whether the jury would have come to a different
conclusion absent counsel’s errors, the appellate court explained
that it was not confident that the jury would have come to the same
conclusion if it had received more specific unanimity instructions. 66
And it noted that the evidence presented was not overwhelmingly
stronger for either of the two counts. 67 Further, despite some
evidence that Baugh had confessed, his explanation of his
statements created the possibility that a reasonable jury could have
found his “confession” unconvincing. 68 Therefore, the court of
appeals concluded, it could not “identify one charge on which [it
could] say with confidence [the jury] would have convicted.” 69 As
such, the court found “a reasonable probability that but for defense
counsel’s” failure to request more specific unanimity instructions,
“the proceeding’s outcome would have differed.” 70
¶52 The court of appeals applied the correct standard in its
analysis of the prejudicial effect of counsel’s error, considered the
totality of the evidence presented at trial, and correctly concluded
that there was a reasonable probability of a different outcome had
defense counsel requested more specific unanimity instructions.
CONCLUSION
¶53 In order to succeed on his claim of ineffective assistance of
counsel, Baugh had to show that his counsel’s performance was
deficient and that the deficient performance prejudiced him. The
court of appeals correctly concluded that Baugh made those
showings. Because the risk of non-unanimity was significant, and,
given the state of the law regarding jury unanimity as to elements,
Baugh’s counsel performed deficiently by failing to request more
specific unanimity instructions. Further, there was a reasonable
__________________________________________________________
65 Id. ¶ 21.
66 Id. ¶ 24.
67 Id. ¶ 22.
68 Id.
69 Id. ¶ 24.
70 Id. ¶ 26.
16
Cite as: 2024 UT 33
Opinion of the Court
probability that the jury would not have convicted Baugh had the
error not occurred. Therefore, we hold that Baugh’s counsel was
ineffective and affirm the court of appeals’ vacation of Baugh’s
conviction.
17
