State v. Baugh
| Decision Date | 13 January 2022 |
| Docket Number | 20200178-CA |
| Citation | 504 P.3d 171 |
| Parties | STATE of Utah, Appellee, v. Brevan Bringhurst BAUGH, Appellant. |
| Court | Utah Court of Appeals |
Emily Adams, Freyja Johnson, and Cherise M. Bacalski, Attorneys for Appellant
Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee
Opinion
¶1 During its closing argument at Brevan Bringhurst Baugh's trial for two counts of aggravated sexual abuse of a child, the State referenced testimony of three instances of alleged abuse. But the State then told the jury that "those two counts can be fulfilled with ... any two of those experiences" and that "any two of those incidents ... described ... can be the elements of both of these counts." The jury rendered a split verdict, and Baugh now appeals, contending that defense counsel provided ineffective assistance for failing to ensure the jury received proper instruction regarding unanimity. We agree; accordingly, we vacate Baugh's conviction and remand for further proceedings consistent with this opinion.
¶2 While Baugh lived at the family house from 2012 to April 2014, his daughter Sasha1 saw a pornographic image of a "hand job" Baugh had left "up on the computer." On another occasion, she "walked in on [him] masturbating." In April 2014, when Baugh separated from his wife, Sasha's mother, Sasha and her siblings spent their time with Baugh at his apartment.
¶3 Several years later, while Sasha was visiting Baugh, he made a comment to Sasha about her clothing choices, stating that even though the clothing choices were inconsistent with standards by which they aspired to live, he was otherwise "fine" with them. The comment upset Sasha, and memories of the past started "coming back." Unsettled by the incident, Sasha reported her discomfort to her mother, who then suggested Sasha see a therapist. During an ensuing therapy session, Sasha disclosed that, years before, Baugh had, on various occasions, forced her to touch his penis and give him "hand jobs."
¶4 The detective who responded to the therapist's report of abuse invited Sasha to conduct a recorded confrontation call "to get ... some type of evidence ... from" Baugh. But when Sasha initially confronted Baugh about the abuse, he denied it and asked if she was "misremembering things." When Sasha reminded him that he had taken her aside and apologized, Baugh insisted the apology was for her inadvertent exposure to pornography, and he stated, "[M]y concern here is that you're putting that together with something ... about me that didn't happen."
¶6 Shortly after the confrontation call, Baugh was arrested, and the investigating detective followed up with an interrogation. During the interrogation, Baugh conceded that he did not deny the accusation of abuse in the apartment but attributed his failure to deny to being "out of it" during the time he lived at the apartment. Baugh also conceded that Sasha had been exposed to pornography but he consistently and repeatedly denied the abuse allegations. The interrogation concluded with the following exchange:
The State charged Baugh with two counts of aggravated sexual abuse of a child: one count for abuse that allegedly occurred in 2012 and one count for abuse that allegedly occurred in 2014.
¶7 At trial, Baugh testified that when he told the detective that "the last time something sexual happened between" him and Sasha was at the family house, he was not referring to any abuse but was referring only to the pornography exposure. Even though he maintained that no abuse had ever occurred, Baugh also explained that he had not disputed Sasha's claim of abuse at the apartment because he "wanted to ... meet her where she's at and accept her" and provide "support," and because he wanted Sasha "to feel validated" and help her "deal with whatever issues she's going through." Baugh expressed his reasoning that "she's entitled to feel however she wants to feel, even if she is getting things mixed up." Baugh, however, maintained his position—"I didn't do what she's accusing me of."
¶8 Sasha on the other hand testified about three specific instances of abuse. She testified that Baugh had made her touch and rub his penis on two occasions at the family house—once in his bed and once in her bed—and on one occasion at the apartment. But nowhere in her testimony did Sasha explain specifically when the alleged abuse occurred.
Neither the court nor defense counsel took issue with this statement. However, the jury instructions informed the jury that "[o]pen discussion" could help it "reach a unanimous agreement on a verdict." The instructions also directed the jury that it should "[t]ry to reach a unanimous agreement, but only if [it could] do so honestly and in good conscience" and that "every single juror must agree with the verdict before the defendant can be found ‘guilty’ or ‘not guilty.’ " And although the instructions distinguished the counts based on the date of the alleged abuse—2012 for count one, and 2014 for count two—the verdict forms required the jury to indicate only whether it unanimously agreed that Baugh was "guilty" or "not guilty" for each count and not whether it agreed on which instance of alleged abuse constituted the crime for which the jury agreed to convict. The parties have not identified, and we have not found, anywhere in the record where defense counsel requested either specific unanimity instructions pertinent to each count or a special verdict form requiring the jury to specify which act was linked with each conviction.
¶10 The jury then retired to deliberate, but nearly seven hours into those deliberations—a few minutes after 10:00 p.m.—it indicated that it had arrived at an impasse. The court responded by orally instructing the jury through the bailiff "to go back and keep trying"—recounting the incident for the record only after the fact.2 And at 11:43 p.m. the jury issued a split verdict, acquitting Baugh on one count of aggravated sexual abuse of a child in 2012 and convicting him on one count of aggravated sexual abuse of a child in 2014. Baugh appeals.
¶11 Baugh contends that defense counsel rendered constitutionally "ineffective assistance in failing to ensure that the jury was properly instructed regarding unanimity." In particular, Baugh asserts that "[t]he jury was not instructed that [it] must unanimously agree as to which of the three alleged incidences constituted each [of the two] charged crime[s]" and that this failure prejudiced his defense. (Emphasis omitted.) "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 (cleaned up).
¶12 To prevail on a claim that defense counsel rendered ineffective assistance in failing to ensure the jury received proper unanimity instruction, Baugh must make a two-part showing. See State v. Scott , 2020 UT 13, ¶ 28, 462 P.3d 350. First, Baugh must show that "his counsel's performance was deficient in that it fell below an objective standard of reasonableness," id. (cleaned up), that is, "whether, considering all the circumstances, counsel's acts or omissions were objectively unreasonable," id. ¶ 36. Second, Baugh must show that "the deficient performance prejudiced the defense," id. ¶ 28 (cleaned up), in such a way as "to undermine confidence in the outcome of the proceeding"—i.e., "that the outcome of [the] case would have been different absent counsel's error," id. ¶ 43 (cleaned up). Here, Baugh has carried his burden.
¶13 Regarding deficient performance, Baugh contends that defense counsel's assistance "fell below an objective level of reasonableness" when ...
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