State v. Garcia-Lorenzo , 2022 UT App 101 ( 2022 )

2022 UT App 101THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MELECIO GARCIA-LORENZO,
Appellant.
Opinion
No. 20200369-CA
Filed August 18, 2022
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 181900321
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and William M. Hains,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER
concurred.
HARRIS, Judge:
¶1 A jury found Melecio Garcia-Lorenzo guilty of sexually
abusing his eight-year-old stepdaughter (Child). Garcia-Lorenzo
now appeals his convictions, asserting among other things that
his trial attorney provided ineffective assistance by failing to seek
a jury instruction that specifically directed the jurors that they
needed to unanimously agree upon which acts formed the basis
for each criminal charge. We find merit in Garcia-Lorenzo’s
arguments, and therefore reverse his convictions and remand for
a new trial.
State v. Garcia-Lorenzo
BACKGROUND 1
¶2 Garcia-Lorenzo lived with his wife (Mother), their two
biological children, and Child, who is Mother’s daughter from a
previous relationship. Two of Garcia-Lorenzo’s brothers also
lived in the family home. The brothers each had their own room,
Garcia-Lorenzo and Mother shared a room where their youngest
child also slept, and Child shared a room with her younger half-
sister. Mother typically kept the girls’ room locked because one of
the brothers had a girlfriend whom she did not particularly trust.
¶3 On the morning of December 31, 2017, Mother woke up
and began looking for Garcia-Lorenzo. The couple had planned
to go to the grocery store that morning to buy food and materials
needed for a New Year’s Eve dinner; they had family and friends
coming over to the house that evening to celebrate the new year.
After she did not find him in their bedroom, Mother went to
Child’s room to see if her daughters were awake. But when she
attempted to open Child’s bedroom door, she discovered that it
was locked, so she went back to her bedroom to get the key. When
Mother opened the locked door, she found Garcia-Lorenzo on the
bed with the two girls, lying close behind Child. Garcia-Lorenzo
and Child were covered by a blanket and, when Mother entered
the room, Garcia-Lorenzo “pushed the blanket between” himself
and Child, and Mother could see Child attempting to pull up her
pajama pants underneath the blanket. Mother went to the bed,
pulled the blankets off, and saw that Child’s pajama bottoms were
still halfway off, with one leg out.
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” Layton
City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d 587 (quotation
simplified).
20200369-CA 2 2022 UT App 101State v. Garcia-Lorenzo
¶4 Garcia-Lorenzo then “jumped out of bed and slammed the
door shut.” Mother demanded to know what was going on, and
Garcia-Lorenzo replied that he “didn’t do nothing” and
“wouldn’t do that.” He pulled his pants away from his waist and
invited Mother to feel his penis, asserting that he would have an
erection if he had been doing anything sexual to Child. Mother
declined, but “could tell” that he did not have an erection. She
then spoke with Child about what had happened. Child appeared
“scared and worried,” and told Mother that Garcia-Lorenzo had
put his “thing in [her] butt.”
¶5 At that point, Mother began trying to think “of a plan of
how to get out of there safely with all three of [her] kids.” Mother
did not work outside the home and was dependent on Garcia-
Lorenzo for money; she did not have family in Utah and was not
sure where they could go. According to her testimony at trial,
Mother did not show any affection toward Garcia-Lorenzo for the
rest of that day and evening, although she tried to keep up
appearances and act like nothing had happened in an effort to
keep from ruining the holiday celebration.
¶6 Some of the other people at the house that day remembered
things a bit differently. One of Garcia-Lorenzo’s brothers testified
that everyone was happy at the party, including Mother, who
expressed several times how much she loved Garcia-Lorenzo.
Another witness testified that Mother sat on Garcia-Lorenzo’s lap
and acted “normal” during the party. And one brother’s ex-
girlfriend testified that she heard “noises” coming from Mother
and Garcia-Lorenzo’s bedroom after the party that night. She
testified that the noises were mostly coming “from a woman,” and
that it sounded like “someone was moaning.” She was prepared
to testify that the moans sounded pleasurable rather than painful,
like the two were having sex, but the State objected, on foundation
grounds, to the admission of that lay opinion testimony, and the
court sustained the objection.
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¶7 Over the next few days, Mother continued to mull over the
situation. On January 4, she told Garcia-Lorenzo’s nephew’s
girlfriend about what had happened on New Year’s Eve morning;
in response, the nephew’s girlfriend told Mother about a nearby
women’s shelter and suggested she might consider going there.
Later that same day, Mother acted on this suggestion, and went
to the shelter with all three children.
¶8 After arriving at the shelter, Mother called the police and
told them what had happened on New Year’s Eve. Officers then
went to Garcia-Lorenzo’s house to arrest him. They found him at
the house, and he was cooperative with police as they took him
into custody.
¶9 After Mother moved into the shelter, a police detective
interviewed Child. No recording of this interview was played for
the jury at trial; instead, the detective who conducted the
interview testified about it, with the assistance of a transcript. As
recounted by the detective, Child stated during the interview that
Garcia-Lorenzo came into her bedroom, took his pants off, and
took her pants off. After that, Mother came in and “was very
mad.” The detective then told Child that he had spoken with
Mother, who had mentioned that somebody “possibly had put
something in [Child’s] butt.” Child responded by stating that
“Dad put his thing in my butt.” She told the detective that it hurt,
and when asked to clarify what “his thing” meant, Child “pointed
to her crotch area.” The detective asked Child if Garcia-Lorenzo
had touched any other body part, and Child said “no.” She later
stated, however, that Garcia-Lorenzo “had not actually put his
thing in her butt on that day,” presumably referring to the New
Year’s Eve day when Mother had walked into the room, but
instead had “put his thing in [her] butt” on a different occasion,
when the family lived in a different house.
¶10 A few days after the interview, Mother took Child to the
hospital for examination. Mother told the examiner that Garcia-
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Lorenzo had touched Child’s “front and back with his thing,” and
that Child had been having nightmares and some unusual
behavioral issues, as well as some “pink-tinged kind of discharge
in her underwear.” The examiner found no injuries requiring
treatment, later explaining at trial that it is “very uncommon” to
see injuries from child sexual abuse because the anal and genital
areas are “made to expand” and tend to heal quickly.
¶11 The State eventually charged Garcia-Lorenzo with one
count of sodomy on a child and one count of aggravated sexual
abuse of a child, both first-degree felonies. In the charging
document, the State alleged that the instance of sodomy had
occurred sometime between September 1, 2017 and December 31,
2017, and that the instance of aggravated sexual abuse occurred
“on or about” December 31, 2017. But the document did not
otherwise specify which touch corresponded with which count.
¶12 The case proceeded to a first jury trial, which ended in a
mistrial after a concern about one of the jurors arose on the
morning of the trial’s second day. Before the mistrial was
declared, however, the State had already put on most of its case,
including calling as witnesses both Child and Mother. Notably,
however, the State did not call—and did not even list as a
potential witness—any expert to testify regarding techniques for
interviewing child witnesses. During the first trial, Garcia-
Lorenzo’s defense counsel cross-examined Child and was able to
elicit some favorable evidence by asking leading questions. For
instance, during cross-examination, Child testified that she had
previously told Garcia-Lorenzo that Mother had told her what to
say, and that if she didn’t say what Mother wanted her to, she
would get into trouble.
¶13 The case was later rescheduled for a second trial. At that
trial, which took place in May 2019, the State again called Child,
Mother, and several other of the same witnesses it had called at
the first trial, but this time the State also called an expert to testify
20200369-CA 5 2022 UT App 101State v. Garcia-Lorenzo
about techniques that should be used when conducting forensic
interviews of child witnesses. This witness testified that a proper
forensic interview with a child should be “unbiased or open-
ended” and should allow “children to talk about things that have
happened in their own words.” And after the expert stated that a
forensic interviewer should be “non-leading, non-suggestive,
[and] very open-ended,” the prosecutor began to ask a follow-up
question about “leading questions,” but Garcia-Lorenzo’s
attorney objected, arguing at a sidebar conference that the State
was attempting to “discredit [his] cross-examination,” and
pointing out that, in conducting his cross-examination, he “wasn’t
doing a forensic interview” and that therefore the expert’s
testimony “doesn’t help the fact finder in any way.” Despite the
objection, the court allowed to State to continue its examination,
and the expert concluded by testifying that “the best question
types” are “non-leading” and that “open-ended questions
typically yield more accurate results [and] more accurate details.”
¶14 During her testimony at the second trial, Child testified
that, on New Year’s Eve, Mother “came in the room and then saw
[Garcia-Lorenzo] in the bed with [her].” The State asked what
Garcia-Lorenzo was doing in her bed, and Child responded, “He
was taking off my clothes.” After Child testified that Garcia-
Lorenzo had pulled off her underwear and her pants, the State
asked whether Garcia-Lorenzo had touched any particular part of
her body, and Child answered that he had touched “the back
part” with “his thing.” Using an anatomical drawing, Child
indicated that Garcia-Lorenzo touched her that morning with his
penis “on” both her vagina and her anus. She also testified that
Garcia-Lorenzo had “put his thing in her butt” on New Year’s
Eve. The State also inquired as to whether Garcia-Lorenzo had
ever “put his thing in your bottom part” on another occasion
”before at a different house,” and Child responded that he had,
but she did not remember when. At this point, defense counsel
objected and asked the State to stop asking leading questions on
direct. The court responded, “So, there’s some leading going on.
20200369-CA 6 2022 UT App 101State v. Garcia-Lorenzo
And I do appreciate that it’s a child witness. But let’s see if you
can do it without that.”
¶15 In cross-examining Child, defense counsel—as he had
done in the first trial—asked many leading questions. Eventually,
the State lodged an objection, explaining during a sidebar
conference that defense counsel was “doing so much leading,
which is bad with children, that [Child] doesn’t have a chance to
say she doesn’t remember everything she said.” Defense counsel
responded, “I get to lead. It’s cross examination.” The court
overruled the State’s objection. Later during cross-examination,
Child acknowledged that she had been telling the truth when,
during the first trial, she testified that Mother had told her what
to say and that “if [she] didn’t say what [Mother] had told [her] to
say, that [she] would get in trouble.”
¶16 After the evidence was presented, defense counsel made a
motion for a directed verdict regarding count 2, the aggravated
sexual abuse charge. Outside the presence of the jury, counsel
acknowledged that Child had testified that Garcia-Lorenzo had
“put his thing inside of her buttocks,” and that there was therefore
sufficient evidence to “go to the jury” on count 1, the sodomy
charge. But counsel asserted that Child had “never testified that
he did any other act that would give rise to aggravated sexual
abuse,” and that “the testimony has all been about one incident.”
In response, the State asserted that Child had testified not only
that Garcia-Lorenzo had “put his thing in [her] butt that
morning,” but also, “as part of that,” had asserted that Garcia-
Lorenzo had “touched her front private parts.” In addition, the
State referenced Child’s claim that “this happened previously,
that he put his thing in her butt at the house that they previously
lived in,” an event the State characterized as “a separate incident
of sodomy.” The court denied Garcia-Lorenzo’s motion.
¶17 Soon thereafter, the court read to the jury a stipulated set
of instructions. While the instructions informed the jury that its
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decision had to be unanimous, they did not tell the jury that it
needed to agree on the specific act that formed the basis for each
charge. In an earlier set of instructions given at the beginning of
trial, the court had read to the jury the charging document, which
alleged that sodomy occurred “on or about September 1, 2017
through December 31, 2017,” and that aggravated sexual abuse
occurred “on or about December 31, 2017.”
¶18 During its closing argument, the State began by discussing
the sodomy charge, and appeared to make some effort to tie that
count to the events that took place prior to New Year’s Eve in the
other house. But the State also implied that the same act that
occurred in the old house prior to New Year’s Eve—sodomy—
had occurred again in the new house on New Year’s Eve; in
particular, the State asked the jury to “find the defendant guilty”
on the sodomy count due to Child’s testimony “that after the date
in which her mother discovered what was happening, she said
that this happened before. And she told you that this happened
before when they lived in the other house.” The prosecutor had
mentioned something similar in her opening statement as well,
relaying Child’s statement to Mother that Garcia-Lorenzo had
“put his thing in [her] butt,” and highlighting that Child had
“talked to [Mother] about the fact that this had happened before
in a home that they lived in previous[] to” New Year’s Eve.
¶19 With regard to the other count—the one for aggravated
sexual abuse—the State appeared to try to tie that count to Child’s
testimony that, on New Year’s Eve, during “that last event,”
Garcia-Lorenzo “did touch [Child’s] genitals and did touch her
buttocks.” But as noted, the State also argued that Garcia-Lorenzo
had also committed sodomy on New Year’s Eve.
¶20 When it was his turn to make closing argument, defense
counsel suggested that Child had accused Garcia-Lorenzo of
sexual abuse because Child felt pressure from Mother to make
accusations, arguing that “we all know if you keep pressing a
20200369-CA 8 2022 UT App 101State v. Garcia-Lorenzo
child, ‘Did he do this? Did this happen? Did this happen’ a child
will eventually . . . tell you what you want to hear just so that you
leave them alone.” In response to this argument from the defense,
the State—during rebuttal—argued as follows:
If you want to see a good example of pressuring a
child to say something, you can look to some things
that happened here in the courtroom . . . Where was
[Child] pressured? On cross-examination. Dozens
and dozens and dozens of leading questions.
Defense counsel objected to this argument, taking issue (at a
sidebar) with the State “implying that” asking leading questions
on cross-examination was “improper.” The court asked the State
if it was “planning on going any further with that” and, when the
prosecutor replied in the negative, the court overruled the
objection. Soon thereafter, however, the prosecutor returned to
the argument that she had told the court she would not make,
stating that “on cross-exam [defense counsel] said to [Child], ‘But
you never told that to anybody before, right? Right?’ So [Child]
says ‘Yeah’ and went along with the leading.” And later, she
argued that “what happened here was [Child] succumbed to that
pressure” on cross-examination. Defense counsel did not renew
his objection following these additional comments.
¶21 Following deliberation, the jury convicted Garcia-Lorenzo
on both counts. Later, Garcia-Lorenzo filed a motion for a new
trial, asserting that the State—by calling the forensic interview
expert to discuss techniques for interviewing children and by
suggesting during closing argument that defense counsel’s
leading questions to Child had been improper—had committed
prosecutorial misconduct. The court denied the motion, offering
its view that, after defense counsel objected to the prosecutor’s
statement about “leading questions,” the State ceased that line of
argument,” and concluding that the jury was therefore not
“improperly influenced” by the State’s tactics.
20200369-CA 9 2022 UT App 101State v. Garcia-Lorenzo
ISSUES AND STANDARDS OF REVIEW
¶22 Garcia-Lorenzo now appeals, arguing that multiple trial
errors—both individually and cumulatively—warrant reversal.
First, Garcia-Lorenzo contends that defense counsel rendered
constitutionally ineffective assistance by failing to seek specific
jury unanimity instructions. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as a
matter of law.” State v. Beckering, 2015 UT App 53, ¶ 18, 346 P.3d
672 (quotation simplified).
¶23 Second, Garcia-Lorenzo asserts that the trial court failed to
appropriately remedy prosecutorial misconduct related to
statements made during the State’s closing argument. We review
“a trial court’s handling of claimed prosecutorial misconduct for
an abuse of discretion.” State v. Clark, 2014 UT App 56, ¶ 10, 322
P.3d 761 (quotation simplified).
¶24 Finally, Garcia-Lorenzo challenges the trial court’s
decision to exclude lay testimony, from Garcia-Lorenzo’s
brother’s ex-girlfriend, that it sounded like Garcia-Lorenzo and
Mother were engaging in sexual activity after the New Year’s Eve
party. We review a trial court’s evidentiary rulings for abuse of
discretion. State v. Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032.
ANALYSIS
I. Ineffective Assistance of Counsel
¶25 Garcia-Lorenzo’s first contention is that his attorney
rendered constitutionally ineffective assistance. To establish that
his attorney was ineffective, Garcia-Lorenzo must show both
(1) that his attorney’s performance was deficient, in that it “fell
below an objective standard of reasonableness,” and (2) that this
20200369-CA 10 2022 UT App 101State v. Garcia-Lorenzo
deficient performance “prejudiced the defense” such that “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord
State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24, 469 P.3d 871. “A defendant must satisfy both parts of this
test in order to successfully establish ineffective assistance.” State
v. Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150.
¶26 The first part of the test requires Garcia-Lorenzo to show
that his attorney’s performance “fell below an objective standard
of reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified).
In evaluating the reasonableness of counsel’s actions, courts will
often look to whether the actions counsel took could have been
motivated by trial strategy. See id. ¶ 35 (“[T]he performance
inquiry will often include an analysis of whether there could have
been a sound strategic reason for counsel’s actions.”). And while
“the ultimate question is not whether there was a possible
strategic reason for counsel’s conduct, but instead whether that
conduct was objectively reasonable,” id., “[i]f it appears counsel’s
actions could have been intended to further a reasonable strategy,
a defendant has necessarily failed to show unreasonable
performance,” Ray, 2020 UT 12, ¶ 34.
¶27 If Garcia-Lorenzo establishes that his attorney rendered
deficient performance, he must next show that he was prejudiced
by that performance. “Prejudice exists when there is a reasonable
probability that the case would have had a different outcome had
trial counsel not performed deficiently.” Whytock, 2020 UT App
107, ¶ 28. “[A] reasonable probability is a probability sufficient to
undermine confidence in the outcome” of the proceeding.
Strickland, 466 U.S. at 694. And in assessing whether this standard
is met, we “consider the totality of the evidence before the judge
or jury and then ask if the defendant has met the burden of
showing that the decision reached would reasonably likely have
20200369-CA 11 2022 UT App 101State v. Garcia-Lorenzo
been different absent the errors.” State v. Garcia, 2017 UT 53, ¶ 28,
424 P.3d 171 (quotation simplified).
¶28 In this case, Garcia-Lorenzo asserts that his trial attorney
rendered ineffective assistance by failing to lodge two particular
objections to the instructions the court gave the jury. 2 First, he
asserts that counsel failed to object to the absence of an instruction
that told the jury it must unanimously agree on the specific act
that formed the basis for each charge. Second, and relatedly, he
notes that Child’s testimony that he “touched her anus with his
penis” could potentially have satisfied the elements of both
sodomy and aggravated sexual abuse, and he therefore asserts
that counsel should have “request[ed] an instruction
distinguishing the two separate charges” as well as one that “told
the jury that the two convictions had to be for different acts.”
¶29 Although Garcia-Lorenzo frames these as separate issues,
they are quite closely related. They arise out of a concern that the
State charged him with only two crimes, but put on evidence of
four physical acts that could potentially have amounted to
criminal behavior: (1) Child’s allegations, made during the police
interview (as described by the detective) and during her
testimony at trial, that Garcia-Lorenzo had “put his thing in [her]
butt” prior to New Year’s Eve, in the old house; (2) Child’s
allegations, made during her trial testimony and recounted by
Mother’s trial testimony, that he had “put his thing in her butt”
on New Year’s Eve; (3) Child’s trial testimony that Garcia-Lorenzo
had touched her “on” her buttocks or anus with his penis on New
Year’s Eve; and (4) Child’s trial testimony that Garcia-Lorenzo
had touched her “on” her vagina with his penis on New Year’s
Eve. Garcia-Lorenzo points out that, under these circumstances,
2. In the alternative, Garcia-Lorenzo asserts that the trial court
committed plain error by not including additional instructions.
But because we resolve Garcia-Lorenzo’s ineffective assistance
claim in his favor, we need not consider his plain error claim.
20200369-CA 12 2022 UT App 101State v. Garcia-Lorenzo
various problems can arise, such as a conviction despite a lack of
jury unanimity (for instance, if four jurors think he committed
sodomy at the old house, and four think he committed sodomy
on New Year’s Eve, but there is no unanimity with regard to either
act) or multiple convictions for the same act (for instance, if the
jurors think he put his penis in Child’s anus on New Year’s Eve,
but do not believe he committed the other acts, and nevertheless
convict him of both sodomy and aggravated sexual abuse).
¶30 We begin our analysis with an overview of the legal
principles that govern Garcia-Lorenzo’s challenge, and we
conclude that, under current governing law, Garcia-Lorenzo has
demonstrated that his attorney performed deficiently. We then
address—and decline—the State’s request that we at least
partially overrule one of our cases in this area. And finally, we
address whether the attorney’s deficient performance prejudiced
Garcia-Lorenzo.
A
¶31 Our state constitution provides that “[i]n criminal cases the
verdict shall be unanimous.” Utah Const. art. I, § 10. “At its most
basic level, this provision requires the full concurrence of all
empaneled jurors on their judgment as to the criminal charges
submitted for their consideration.” State v. Hummel, 2017 UT 19,
¶ 25, 393 P.3d 314. Additionally, it is “well-established” that our
constitutional unanimity requirement “‘is not met if a jury
unanimously finds only that a defendant is guilty of a crime.’” See
id. ¶¶ 26, 30 (emphasis omitted) (quoting State v. Saunders, 1999
UT 59, ¶ 60, 992 P.2d 951). Our constitution “requires unanimity
as to each count of each distinct crime charged by the prosecution
and submitted to the jury for decision.” Id. ¶ 26 (emphasis
omitted). Indeed, “a generic ‘guilty’ verdict that does not
differentiate among various charges would fall short,” as would
“a verdict of ‘guilty of some crime.’” Id. ¶¶ 26–27. For example,
20200369-CA 13 2022 UT App 101State v. Garcia-Lorenzo
a verdict would not “be valid if some jurors found a
defendant guilty of 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 found him guilty of the elements of the
crime of robbery.”
Id. ¶ 28 (quoting Saunders, 1999 UT 59, ¶ 60). “These are distinct
counts or separate instances of the crime of robbery, which would
have to be charged as such.” Id.¶32 In December 2019—some seven months after the second
trial in this case—we issued our opinion in State v. Alires, 2019 UT
App 206, 455 P.3d 636. In that case, the defendant was charged
with “six identically-worded counts” of aggravated sexual abuse,
the counts were not distinguished by act or by alleged victim, the
complaining witnesses described more than six acts that could
have qualified as abuse, and the jury convicted the defendant on
only two counts. See id. ¶¶ 22–23. In that situation, “the jurors
could have completely disagreed on which acts occurred or which
acts were illegal,” even if they all agreed that abuse had occurred
at some point. Id. ¶ 23. Although the court gave the jury a general
instruction that its verdict needed to be unanimous, id. ¶ 23 n.5, it
did not “instruct the jury that it must be unanimous as to the
specific act underlying each count of conviction,” id. ¶ 12. To the
contrary, the prosecutor told the jury, during closing argument,
that “any one of [the] touchings qualifies for each of the counts”
and that “[i]t can be any combination.” Id. ¶ 11. On these facts,
this court rendered two notable holdings.
¶33 First, we held that the jury should have been given a
specific—and not just a general—unanimity instruction, stating
that “the jury should have been instructed to agree on a specific
criminal act for each charge in order to convict.” Id. ¶ 22. The court
further noted that, “[w]here neither the charges nor the elements
20200369-CA 14 2022 UT App 101State v. Garcia-Lorenzo
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.” Id. ¶ 23.
¶34 Second, we determined that, under the state of the law at
the time of trial, “it should have been readily apparent” to the
defendant’s attorney that applicable law “required the court to
instruct the jury that it must agree on the specific criminal act for
each charge in order to convict.” Id. ¶¶ 24–25; see also id. ¶ 19
(stating that the constitutional jury unanimity requirement is
“well-established in our law” and that “this requirement was
applied in the closely analogous Saunders case in 1999”). Thus, the
court held that the defendant’s attorney had rendered deficient
performance by failing to ask the court for a specific unanimity
instruction. See id. ¶ 17 (“Under the circumstances of this case, it
was objectively unreasonable for trial counsel to propose
instructions that did not require the jury to be unanimous as to
the specific acts supporting each count of conviction.”).
¶35 Garcia-Lorenzo asserts that Alires controls here and
compels the conclusion that his attorney performed deficiently by
failing to request a more specific instruction regarding jury
unanimity. We agree.
¶36 As it did in Alires, the State in this case put on evidence of
more potentially criminal touches (four) than there were charges
against Garcia-Lorenzo (two). By doing so, the State set up a
situation in which it was possible for jurors to “have completely
disagreed on which acts occurred or which acts were illegal,”
even if they all agreed that abuse had occurred at some point. See
id. ¶ 23; see also State v. Baugh, 2022 UT App 3, ¶ 21, 504 P.3d 171,
(stating, in a similar case, that it was “therefore entirely possible
that some (but not all) of the jurors convicted on count two based
on the belief that the alleged abuse occurred at the family house,
while some other (but not all) jurors convicted based on the belief
that the abuse occurred at the apartment”), cert. granted, July 11,
20200369-CA 15 2022 UT App 101State v. Garcia-Lorenzo
2022 (No. 20220272). And as in Alires, the court gave the jury a
general unanimity instruction, but did not “instruct the jury that
it must be unanimous as to the specific act underlying each count
of conviction.” See Alires, 2019 UT App 206, ¶ 12. Under the
circumstances presented here, the jury should have been
instructed that it needed to unanimously agree on the specific act
underlying each count of conviction. Id.; accord Baugh, 2022 UT
App 3, ¶¶ 17–19.
¶37 And the chronology of this case is very similar to the
chronology in Alires. In that case, the trial, by definition, took
place prior to the issuance of our Alires opinion. See generally
Alires, 2019 UT App 206. Assessing the state of the case law prior
to Alires, we held in that case that trial counsel acted unreasonably
by not requesting a specific unanimity instruction. See id. ¶¶ 17,
25 (“Had trial counsel properly investigated the governing law, it
would have been apparent that Saunders required the court to
instruct the jury that it must agree on the specific criminal act for
each charge in order to convict.”). Likewise, the trial in this case
occurred in May 2019, before our opinion in Alires was issued, and
under the same legal landscape that governed counsel’s actions in
the Alires trial. Thus, Alires controls here, and dictates the
conclusion that Garcia-Lorenzo’s attorney performed deficiently
by not requesting a specific jury unanimity instruction.
¶38 The State attempts to distinguish Alires on two grounds,
neither of which we find persuasive. First, it asserts that Alires is
different because, in that case, the prosecutor affirmatively told
the jury that it could convict based on any of the various touches
in “any combination.” See id. ¶ 11. We agree that this statement by
the prosecutor in Alires was ill-advised and probably made the
problem worse. But the problem existed with or without the
comment by the prosecutor: the jury needed to be instructed,
either way, that it had to unanimously agree on the specific
criminal act underlying each count of conviction. And since Alires,
we have specifically so held, even in cases in which the prosecutor
20200369-CA 16 2022 UT App 101State v. Garcia-Lorenzo
made no affirmative comment. See, e.g., State v. Mottaghian, 2022
UT App 8, ¶¶ 54, 57, 504 P.3d 773 (concluding that “the jury
instructions were deficient” in a case where the State charged the
defendant with “only eight crimes but put on evidence of some
fifty-eight different touches” and where no specific unanimity
instruction was given; the State made no affirmative statement
that unanimity was unnecessary); State v. Whytock, 2020 UT App
107, ¶ 34, 469 P.3d 1150 (concluding that “a jury unanimity
problem existed” when the jury was presented with two potential
criminal acts and only one charge, and the jury was not provided
with a specific unanimity instruction; the State made no
affirmative statement that unanimity was unnecessary).
¶39 Second, the State asserts that, in closing argument, the
prosecutor made an “election” to instruct the jury which touch
went with each count, which it contends “obviated any need for”
a specific jury unanimity instruction. The State is correct that jury
unanimity problems can sometimes be alleviated if the State
carefully identifies for the jury, in closing argument or elsewhere,
“which act supported each charge.” See Alires, 2019 UT App 206,
¶ 22. But in cases like this one, where the asserted “cure” occurs
during closing argument, any such contention goes only to
prejudice, not to deficient performance; indeed, the jury had
already been instructed by the time closing argument rolled
around. Garcia-Lorenzo’s attorney had already performed
deficiently by failing to request a specific unanimity instruction,
and he could not—as a matter of chronology—have based his
decision not to seek a specific jury unanimity instruction on a
statement that the prosecutor had not yet made. We discuss later,
infra ¶¶ 51–53, whether the State really did sufficiently alleviate
the jury unanimity problem in its closing argument. But even if it
did, defense counsel still performed deficiently by not requesting
a specific unanimity instruction.
¶40 Thus, Alires is materially indistinguishable from this case
and—unless and until we disavow it, or our supreme court tells
20200369-CA 17 2022 UT App 101State v. Garcia-Lorenzo
us otherwise—it controls the outcome here. Under the rule set out
in Alires, the jury should have been given a specific unanimity
instruction, and Garcia-Lorenzo’s attorney performed deficiently
by not requesting one.
B
¶41 The State, however, asks us to partially overrule Alires. In
particular, the State does not ask us to disavow Alires’s first
holding—that “[w]here neither the charges nor the elements
instructions link each count to a particular act,” a general
unanimity instruction is not enough, and that “instructing the
jury that it must agree as to which criminal acts occurred is critical
to ensuring unanimity on each element of each crime.” See Alires,
2019 UT App 206, ¶ 23. But the State does ask us to overrule
Alires’s second holding—that the law was clear enough on that
point prior to Alires such that “it should have been readily
apparent” to reasonable attorneys that a specific unanimity
instruction was required. See id. ¶ 24. For the reasons discussed,
we decline the State’s invitation to partially overrule Alires.
¶42 The principle of stare decisis dictates that “the first decision
by a court on a particular question of law governs later decisions
by the same court.” See State v. Thurman, 846 P.2d 1256, 1269 (Utah
1993); see also Stare Decisis, Black’s Law Dictionary (11th ed. 2019)
(defining “stare decisis” as the principle that “a court must follow
earlier judicial decisions when the same points arise again in
litigation”). This doctrine “is a cornerstone of Anglo-American
jurisprudence because it is crucial to the predictability of the law
and the fairness of adjudication.” Eldridge v. Johndrow, 2015 UT 21,
¶ 21, 345 P.3d 553 (quotation simplified). And “because stare
decisis is so important to the predictability and fairness of a
common law system, we do not overrule our precedents lightly.”
Id. (quotation simplified); see also Thurman, 846 P.2d at 1269
(stating that “no judicial system could do society’s work if it eyed
20200369-CA 18 2022 UT App 101State v. Garcia-Lorenzo
each issue afresh in every case that raised it” (quotation
simplified)).
¶43 This is especially true for a court like ours, in which we
hear cases in rotating panels of three judges, and not every judge
participates in every case. It simply will not do to have one panel
of this court overruling precedent from another panel merely due
to disagreement over the outcome of the case. See State v. Legg,
2018 UT 12, ¶ 9, 417 P.3d 592 (stating that “one panel on the court
of appeals owes great deference to the precedent established by a
different panel on the court of appeals”); Thurman, 846 P.2d at
1269 (“It is one thing to admit that differences among judges on a
particular legal question can exist; it is quite another to sanction
variability in the rule of law depending solely on which of several
judges of an appellate court sit on a given case.”).
¶44 Certainly, courts do retain the power to overrule precedent
in appropriate cases; in particular, this court has the power to
overrule its own precedent, and we have done so on rare
occasions. See, e.g., In re B.T.B., 2018 UT App 157, ¶¶ 39–44, 436
P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827; State v. Legg, 2016 UT App
168, ¶¶ 26–42, 380 P.3d 360, aff’d, 2018 UT 12, 417 P.3d 592. But we
do not do so lightly, and we recognize that, in our system, it is our
supreme court—and not another panel of this court—that has the
primary role when it comes to reviewing the propriety of opinions
rendered by particular panels of this court. Cf. Utah Code Ann.
§ 78A-4-102(2) (LexisNexis 2018) (“The Court of Appeals may not
sit en banc.”).
¶45 Before we may overrule one of our precedents, we must
engage in the two-part exercise required by our supreme court in
such situations. First, we must assess the correctness of the
precedent, and specifically examine “the persuasiveness of the
authority and reasoning on which the precedent was originally
based.” See Eldridge, 2015 UT 21, ¶ 22. Second, we must assess the
practical effect of the precedent, including considerations such as
20200369-CA 19 2022 UT App 101State v. Garcia-Lorenzo
“the age of the precedent, how well it has worked in practice, its
consistency with other legal principles, and the extent to which
people’s reliance on the precedent would create injustice or
hardship if it were overturned.” See id. Our supreme court has
treated this as a two-part test, both parts of which must be
satisfied in order for us to overrule a precedent. See In re Discipline
of Bowen, 2021 UT 53, ¶ 84 n.20, 500 P.3d 788 (stating that, where
“one of the Eldridge factors is not met, we need not discuss the
other”). In this case, our conclusion that the State cannot satisfy
the second Eldridge element is dispositive, and we therefore need
not discuss the first.
¶46 We acknowledge the State’s point that Alires was decided
in December 2019, less than three years ago, and that it therefore
does not qualify as an especially ancient precedent. See Eldridge,
2015 UT 21, ¶ 34 (stating that “newer precedents are likely to be
less firmly established”). But unlike other cases in which we have
overruled precedent, see Legg, 2016 UT App 168, ¶ 41 (noting that
the cases being overruled had not “yet been cited or relied upon
in subsequent appellate court decisions”), there is already a
robust line of cases that have followed up on and interpreted
Alires. We have relied meaningfully on Alires at least eight times.
See State v. Alarid, 2022 UT App 84, ¶¶ 27–42, petition for cert. filed,
July 27, 2022 (No. 20220660); State v. Mottaghian, 2022 UT App 8,
¶¶ 54–72, 504 P.3d 773; State v. Baugh, 2022 UT App 3, ¶¶ 13–25,
504 P.3d 171, cert. granted, July 11, 2022 (No. 20220272); State v.
Paule, 2021 UT App 120, ¶¶ 37–48, 502 P.3d 1217, cert. granted, July
11, 2022 (No. 20220039); State v. Mendoza, 2021 UT App 79, ¶¶ 8–
21, 496 P.3d 275; State v. Gollaher, 2020 UT App 131, ¶¶ 30–39, 474
P.3d 1018; State v. Whytock, 2020 UT App 107, ¶¶ 29–34, 469 P.3d
1150; State v. Case, 2020 UT App 81, ¶ 23, 467 P.3d 893. And we do
not perceive that Alires is a poorly functioning precedent in
practice, or that it is inconsistent with other governing legal
principles. Indeed, the rapid development of a robust line of jury
unanimity case law indicates emerging reliance by bench and bar
20200369-CA 20 2022 UT App 101State v. Garcia-Lorenzo
on the principles set out in Alires, and counsels against our
overruling Alires now.
¶47 This conclusion is bolstered by our knowledge that our
supreme court—although it did not grant certiorari review in
Alires itself—has recently granted certiorari review in both Paule
and Baugh, two of our cases that have followed (and favorably
cited) Alires. In Baugh, the petition was specifically granted as to
the following issue: “Whether the Court of Appeals erred in
concluding [that] Petitioner’s counsel was ineffective in failing to
ensure [that] the jury was instructed that all of its members were
required to agree on a particular alleged incident of sexual contact
to justify any conviction for a count of aggravated sexual abuse of
a child.” Order, July 11, 2022 (No. 20220272). As noted above, in
our appellate system, it is our supreme court—rather than some
iteration of this court—that possesses primary responsibility for
reviewing the propriety of opinions rendered by panels of this
court. The fact that our supreme court has now apparently taken
this issue on makes us even more reluctant to step in and revisit
Alires at this point.
¶48 For these reasons, the State’s request that we partially
overrule Alires runs aground on the second step of the Eldridge
test. In our view, Alires has shown itself to be a workable
precedent that has lent itself well to a consistent, developing line
of cases upon which bench and bar have begun to rely. And our
supreme court will likely soon tell us if we were on the right track
in Alires. Under these circumstances, we deem it improvident to
revisit Alires at this point, and on that basis we decline the State’s
invitation to partially overrule it.
C
¶49 Finally, we must examine the question of whether
counsel’s deficient performance prejudiced Garcia-Lorenzo. An
attorney’s failure to seek a specific jury unanimity instruction is
20200369-CA 21 2022 UT App 101State v. Garcia-Lorenzo
not always prejudicial; indeed, we have rejected ineffective
assistance claims on prejudice grounds in two types of jury
unanimity cases. In some such cases, we have concluded that the
State made clear, in closing argument or elsewhere, which act
went with each count, and therefore a specific instruction on jury
unanimity would not have changed the outcome of the case. See,
e.g., State v. Paule, 2021 UT App 120, ¶ 48, 502 P.3d 1217 (holding
that prosecutors had taken steps “to obviate any jury unanimity
problem” when they “clearly identified for the jury which factual
circumstance formed the basis for [the] obstruction of justice
charge”), cert. granted, July 11, 2022 (No. 20220039); cf. State v.
Mendoza, 2021 UT App 79, ¶ 19, 496 P.3d 275 (stating that, had the
prosecutor “put[] all his eggs in one basket and argu[ed] that the
jury should unanimously determine that [the defendant]
committed any one particular action,” it might not have
concluded that prejudice existed).
¶50 In other such cases, we have concluded that, for various
case-specific reasons, the outcome of the case would not have
changed had the jury been given a specific jury unanimity
instruction. See, e.g., State v. Mottaghian, 2022 UT App 8, ¶ 66, 504
P.3d 773 (concluding that, “when the defendant does not dispute
that the relevant acts . . . occurred, and there is no meaningful and
relevant basis upon which to distinguish the various acts
underlying the charges, the absence of a jury unanimity
instruction ultimately does not prejudice the defendant because
the jury would have had no difficulty in unanimously agreeing
that any one of the relevant criminal acts supported the charges”);
accord State v. Case, 2020 UT App 81, ¶ 26, 467 P.3d 893; State v.
Percival, 2020 UT App 75, ¶¶ 29, 33–34, 464 P.3d 1184.
¶51 In this case, the State asserts that, for two reasons, the lack
of a specific unanimity instruction was not prejudicial here. First,
with regard to the sodomy count, the State contends that it took
steps to obviate any jury unanimity problem by asking the jury,
during closing argument, “to convict based on only one act” of
20200369-CA 22 2022 UT App 101State v. Garcia-Lorenzo
sodomy. Second, with regard to the aggravated sexual abuse
count, the State contends that, given the evidence in this case—
the bulk of which was centered around the event which occurred
on New Year’s Eve—“there is no reasonable likelihood that the
jurors would have been unable” to “agree as to which act
occurred.” Neither of these arguments is sufficiently supported
by the record.
¶52 Our review of the State’s closing argument reveals that the
prosecutor fell short of sufficiently and clearly instructing the jury
regarding which act corresponded with the sodomy count. The
State points to the following remark—made by the prosecutor
near the beginning of her closing argument—as potentially
curative of any unanimity issue on that count:
So with [the sodomy] charge we are asking you to
find the defendant guilty because of [Child’s]
statement that after the date in which her mother
discovered what was happening, she said that this
happened before. And she told you that this
happened before when they lived in the other
house.
But this statement resolved nothing for the jury. As opposed to
clearly identifying which act “formed the basis for” the charge, see
Paule, 2021 UT App 120, ¶ 48, this statement made reference to
both asserted acts of sodomy. As Garcia-Lorenzo correctly asserts,
it is entirely possible (and perhaps even likely) that the jury
simply understood the prosecutor to be saying that, because the
sodomy allegedly happened on multiple occasions, it was more
likely to have also happened on New Year’s Eve. And this
interpretation makes the most sense given the language of the
charging document and given the way in which the evidence
came in at trial: the charging document left open the possibility
that the charged sodomy could have occurred on New Year’s Eve,
and the bulk of the sodomy evidence presented at trial was
20200369-CA 23 2022 UT App 101State v. Garcia-Lorenzo
unquestionably focused on the events of New Year’s Eve, when
Mother walked in on Garcia-Lorenzo and Child.
¶53 Thus, the State’s closing argument did not—or, at least, not
clearly enough—identify for the jury which factual circumstance
or act served as the underlying offense for the sodomy charge. We
are not persuaded that, on this record, the State’s closing
argument sufficiently obviated the problem created by the
absence of a specific jury unanimity instruction.
¶54 Next, this is not a case in which “there is no meaningful
and relevant basis upon which to distinguish the various acts
underlying” the aggravated sexual abuse charges. See Mottaghian,
2022 UT App 8, ¶ 66; see also Case, 2020 UT App 81, ¶ 26
(concluding that, because a defendant charged with seven counts
had stipulated that his laptop contained thirty-seven images of
child pornography, the fact that no specific unanimity instruction
was given was not prejudicial because “there is little doubt the
jury would have selected the seven most sexually graphic
depictions of child pornography among the thirty-seven that were
admitted into evidence”). As an initial matter, Garcia-Lorenzo—
unlike the defendant in Mottaghian—denies that he committed the
acts in question. See Mottaghian, 2022 UT App 8, ¶ 61. Here, the
possibility remained, due to the contested nature of the acts in
question, that the jury might determine that only some—but not
all—of the alleged acts had actually taken place.
¶55 And more importantly, in this case—unlike the situation in
Case, see 2020 UT App 81, ¶ 26 (determining that, given the
defendant’s stipulation that all thirty-seven of the images in
question “constituted child pornography,” once the jury
determined that he had possessed the images there was no basis
for distinguishing between them)—there existed a reasonable
basis in the evidence for jurors to disagree on whether all of the
alleged acts of aggravated sexual abuse occurred. Not only did
Child acknowledge, on cross-examination, that she had been
20200369-CA 24 2022 UT App 101State v. Garcia-Lorenzo
telling the truth when she told Garcia-Lorenzo that Mother had
told her what to say and that “if [she] didn’t say what [Mother]
had told [her] to say, that [she] would get in trouble,” but she gave
conflicting accounts about exactly what happened on New Year’s
Eve. In the police interview, the detective asked Child if Garcia-
Lorenzo had touched any body part other than her “butt,” and
Child said “no.” But at trial, using an anatomical drawing, Child
indicated that Garcia-Lorenzo touched her that morning with his
penis “on” both her vagina and her anus. The prosecutor, during
closing argument, did little to clear up the situation, asserting that
Garcia-Lorenzo “touched both of those places on [Child’s] body
on that last event,” without specifying which touch formed the
basis for the aggravated sexual abuse charge.
¶56 Furthermore, as Garcia-Lorenzo points out, one of the acts
alleged—the assertion that Garcia-Lorenzo touched Child’s anus
with his penis—could have qualified as either sodomy or
aggravated sexual abuse. The jury was instructed that “sodomy”
constituted “a sexual act . . . [i]nvolving the genitals of [Garcia-
Lorenzo] and the anus of [Child],” and that “aggravated sexual
abuse” constituted the act of “touch[ing] the anus, buttocks, or
genitals of” Child. And no instruction told the jury that the
two convictions had to be for different acts. See State v. Sanchez,
2015 UT App 27, ¶ 19, 344 P.3d 191; see also State v. Lopez, 2004
UT App 410, ¶ 8, 103 P.3d 153 (“Courts apply the merger
doctrine as one means of alleviating the concern of double
jeopardy that a defendant should not be punished twice for the
same crime.”).
¶57 For these reasons, we remain unpersuaded by the State’s
arguments. In our view, there is at least a reasonable probability,
on the record before us, that the absence of a specific jury
unanimity instruction made a difference in the outcome of the
case. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
Accordingly, Garcia-Lorenzo has demonstrated Strickland
prejudice and has therefore demonstrated that his attorney
20200369-CA 25 2022 UT App 101State v. Garcia-Lorenzo
rendered ineffective assistance by failing to seek a specific jury
unanimity instruction. On this basis alone, we reverse his
convictions and remand this case to the district court for a new
trial or such other proceedings as may now be appropriate.
II. Guidance on Other Issues
¶58 Because we have concluded that Garcia-Lorenzo is entitled
to a new trial due to ineffective assistance of counsel, we could
end our analysis here. But Garcia-Lorenzo has raised, and the
parties have briefed, other issues that may arise on remand, and
“in an effort to offer guidance that might be useful on remand,
where these issues are likely to arise again,” we elect to briefly
discuss two of Garcia-Lorenzo’s other arguments. See State v.
Valdez, 2021 UT App 13, ¶ 54, 482 P.3d 861, cert. granted, 469 P.3d
715 (Utah 2021); see also State v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867(reversing on other grounds and remanding for a new trial, but
nevertheless proceeding to comment on “other issues presented
on appeal that will likely arise during retrial”).
A
¶59 First, we discuss Garcia-Lorenzo’s contention that the trial
court failed to appropriately remedy asserted prosecutorial
misconduct related to statements made during the State’s closing
argument. Here, Garcia-Lorenzo contends that the prosecutor
committed misconduct by making statements that implied that
defense counsel had acted inappropriately by asking leading
questions while cross-examining Child.
¶60 We note at the outset that, when considering an appellant’s
assertion that he was harmed by prosecutorial misconduct, we
“review the decision[] of [the] lower court[],” and “[w]e do not
review the actions of counsel—at least not directly.” See State v.
Hummel, 2017 UT 19, ¶ 107, 393 P.3d 314. The particular decisions
of the trial court that Garcia-Lorenzo assails are its decisions to
20200369-CA 26 2022 UT App 101State v. Garcia-Lorenzo
overrule his objection to the prosecutor’s statements during
closing argument, and to deny his post-trial motion.
¶61 Given our conclusion regarding ineffective assistance of
counsel, we need not reach the question of whether the trial court,
under the circumstances, acted inappropriately in either of these
particulars, or whether the trial court’s actions—if error—were
sufficiently prejudicial to warrant a new trial. But in any event, we
are generally concerned with the State’s implication that asking
leading questions on cross-examination, even when the witness is
a child, is somehow inappropriate or constitutes improper
“pressuring” of a child witness. Asking leading questions on
cross-examination is a perfectly acceptable trial tool, generally
available to all parties, and this holds true even when the witness
in question is a child. See Utah R. Evid. 611(c)(1) (stating that
“[o]rdinarily, the court should allow leading questions . . . on
cross-examination”); see also Securities & Exch. Comm'n v.
Goldstone, 317 F.R.D. 147, 163 (D.N.M. 2016) (stating that the
corresponding federal rule of evidence “reflects the more general
principle that “leading questions are usually permissible on cross-
examination and impermissible on direct examination”
(quotation simplified)). Indeed, even the prosecution is
sometimes allowed, under the careful supervision of the trial
court, to put leading questions to child witnesses during direct
examination. See State v. Kallin, 877 P.2d 138, 144 (Utah 1994)
(holding, in that particular case, that asking leading questions of
a child witness was “not inappropriate” even during direct
examination by the prosecutor, and stating that “[l]eading
questions may be necessary to develop the testimony of a child,
especially one who is testifying about a sensitive and
embarrassing subject”); State v. Isom, 2015 UT App 160, ¶¶ 67–68,
354 P.3d 791 (similar holding). If a particular leading question is
objectionable on other grounds (e.g., argumentative), a specific
objection can be lodged. But it is improper for the State to
generally imply—through expert testimony on techniques for
forensic interviews of children, or otherwise—that defense
20200369-CA 27 2022 UT App 101State v. Garcia-Lorenzo
counsel acts inappropriately by asking leading questions of a
child witness during cross-examination.
¶62 And we are unpersuaded that defense counsel—simply by
arguing that Child had been pressured by Mother to make the
allegations she made—opened the door for the State to make that
implication. In this case, defense counsel had an evidentiary basis
to argue that Child had been pressured: after all, Child testified,
at both trials, that she had told Garcia-Lorenzo that Mother had
pressured her.
¶63 On remand, we encourage the State to refrain from
implying that defense counsel acts inappropriately by asking
leading questions during cross-examination, and we expect the
trial court to take appropriate action, upon objection, if the issue
arises again.
B
¶64 Finally, we elect to briefly discuss Garcia-Lorenzo’s
contention that the trial court erred when it prevented Garcia-
Lorenzo’s brother’s ex-girlfriend from offering her lay opinion
that the “moaning” she heard coming from Garcia-Lorenzo and
Mother’s room on New Year’s Eve after the party sounded as if
the two were engaging in sexual activity.
¶65 Under our evidentiary rules, a witness may offer a lay
opinion if that opinion is (a) “rationally based on the witness’s
perception”; (b) “helpful to . . . determining a fact in issue”; and
(c) “not based on scientific, technical, or other specialized
knowledge.” See Utah R. Evid. 701. The first two requirements are
clearly met here: the opinion is based on the witness’s
perception—she heard the sounds herself—and it is helpful to the
determination of a fact at issue—whether, and to what extent,
Mother was upset with Garcia-Lorenzo on New Year’s Eve.
20200369-CA 28 2022 UT App 101State v. Garcia-Lorenzo
¶66 And we think the third requirement is met here too. That
requirement is met where the testimony concerns knowledge
“within the ken of the average bystander.” See State v.
Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176; see also State v. Hulse,
2019 UT App 105, ¶ 32, 444 P.3d 1158. Utah appellate courts have
held that things like “whether a person is intoxicated” and how
fresh a wound is are within the ken of the average bystander. See
Hulse, 2019 UT App 105, ¶ 35 (freshness of wounds); State v.
Sellers, 2011 UT App 38, ¶ 26, 248 P.3d 70 (level of intoxication).
And other courts, interpreting the federal version of rule 701, have
allowed lay witnesses to offer opinions about the nature of sounds
they heard. See, e.g., United States v. Card, 86 F. Supp. 2d 1115, 1116
(D. Utah 2000) (allowing lay witnesses to offer an opinion “that a
perpetrator of [certain] robberies ‘talked like’ . . . an African-
American”); E.E.O.C. v. Caterpillar, No. 03 C 5637, 2004 WL
2092003, at *2 (N.D. Ill. Sept. 14, 2004) (allowing lay witnesses to
offer an opinion that coworkers had “whistled at them as if they
were dogs”). Certainly, not every person has experience
differentiating sober people from intoxicated people. But most
people do. And where most people have sufficient experience
with a subject, a lay opinion on that subject is by definition
“within the ken of the average bystander,” see Rothlisberger, 2006
UT 49, ¶ 34, and therefore not based on “scientific, technical, or
other specialized knowledge,” see Utah R. Evid. 701(c).
¶67 Similarly, not every person has experience sufficient to
distinguish between moans of sexual pleasure and other types of
moans. But most adults do. Accordingly, the trial court should
have allowed the lay witness in this case to testify about whether,
in her opinion, the moans sounded like sexual activity, subject,
of course, to cross-examination about the basis for the opinion.
Thus, if Garcia-Lorenzo, on remand, seeks to introduce this
testimony, the trial court should not exclude it solely on the basis
that it is, as a general matter, not the proper subject of lay opinion
testimony.
20200369-CA 29 2022 UT App 101State v. Garcia-Lorenzo
CONCLUSION
¶68 In this case, where Garcia-Lorenzo was charged with only
two counts—one for sodomy and one for aggravated sexual
abuse—but the State put on evidence of four potentially criminal
acts, jurors should have been provided with an instruction
specifically telling them that they needed to unanimously agree
as to the specific acts supporting each count of conviction. Under
Alires, trial counsel acted unreasonably by failing to seek such an
instruction, and the absence of that instruction was prejudicial.
We decline the State’s invitation to partially overrule or disavow
Alires. Accordingly, Garcia-Lorenzo has demonstrated that his
attorney rendered ineffective assistance. On that basis, we reverse
Garcia-Lorenzo’s convictions and remand the case for further
proceedings, including potentially a new trial.
20200369-CA 30 2022 UT App 101