District, Panguitch The Honorable James R. Taylor No.
D. Reyes, Att'y Gen., Kris C. Leonard, Asst. Att'y
Gen., Salt Lake City for appellee
W. Pendleton, St. George, for appellant.
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Durham, and
Justice Himonas joined.
Justice John A. Pearce became a member of the Court on
December 17, 2015, after oral argument in this matter, and
accordingly did not participate.
Associate Chief Justice.
John Hummel was charged and tried on four counts of theft and
one count of attempted theft under Utah Code section
76-6-404. All eight jurors found him guilty on all five
counts. There is no dispute in the record on this point. The
jury was polled and all indicated that the verdict as
announced was the one they voted for.
Yet Hummel challenges his conviction under the Unanimous
Verdict Clause of the Utah Constitution. Utah Const. art. I,
§ 10. He does so on the basis of an alleged lack
of unanimity as to alternative factual theories
advanced by the prosecution in support of some of the theft
counts against him. Because of an alleged lack of record
evidence to support some of the prosecution's theories,
Hummel contends that we cannot be certain it was unanimous in
its verdict. And he urges reversal on that basis.
Alternatively, Hummel alleges two other sets of trial errors
as grounds for reversal-in the prosecution purportedly
changing theories partway through trial and in alleged
We affirm. First, we hold that unanimity is not required as
to theories (or methods or modes) of a crime. Under the text
and original meaning of the Unanimous Verdict Clause,
unanimity is required only as to the jury's verdict-its
determination of guilt, or in other words its determination
that the prosecution has proven each element of each crime
beyond a reasonable doubt. There is no doubt that the jury
was unanimous at that level in this case. And we affirm on
that basis. We also reject Hummel's other arguments,
concluding that his objection to the purported change in
theories mid-trial was not preserved and that his charges of
"prosecutorial misconduct" fail either on their
merits or under plain error review.
Garfield County does not have a full-time public defender.
Instead it retains a private attorney to handle all public
defense cases for a flat annual fee. In 2008 and 2009 the
county retained John Hummel to do its public defense work.
Hummel apparently concluded that he could make more money if
he could convince his would-be public defense clients to
retain him privately. So he met with a number of these
clients before his formal appointment as public defender. In
those meetings Hummel tried to persuade these clients to
retain him privately.
Jerry Callies was one of the defendants who met with Hummel
under these circumstances. Callies met with Hummel after
Callies had applied for court-appointed counsel. A bailiff
directed Callies to meet with Hummel to discuss Callies'
application. During the meeting Hummel told Callies that he
did not qualify for appointed counsel. Hummel then suggested
that Callies retain him and pay him as his private lawyer.
Hummel told the imprisoned Callies that if Callies would sign
over his guns and pay $2, 500, Hummel would get him out of
prison that day. He also warned that if Callies did not hire
Hummel, Callies would spend thirty more days in prison and
might even face additional charges. Callies relented. He gave
Hummel his firearms and signed a promissory note for $2, 500
in exchange for representation.
Callies also alleges that Hummel asked him to fill out a new
application for appointment of counsel and to list an
inflated income amount in order to guarantee that Hummel
would not be appointed as counsel. At trial, there was
conflicting evidence as to whether Hummel was in fact
appointed as Callies' counsel (a minute entry suggested
that Hummel was appointed, while a recommendation by the
county attorney that Callies be denied counsel cuts the other
John Burke was a second would-be public defense client who
met with Hummel. Hummel met with Burke after Burke had been
charged with various drug and weapons charges. After filling
out an application for court-appointed counsel, Burke gave
the application to Hummel, believing that Hummel was in
charge of the paperwork. During the meeting, Hummel mentioned
that Burke, who had been in court before, must "know how
courts are about public defenders." Hummel also
indicated that he would be able to "better represent
[Burke]" if Burke paid Hummel $5, 000. After this
conversation, Burke's father agreed to a $2, 500 charge
to his credit card. Hummel suggested he would work out a plan
for payment of the remaining $2, 500.
Scotty Harville and Joe Sandberg also met with Hummel. A
judge had told them both that they qualified for counsel. Yet
Hummel told them that "it would look better" in
court if they hired private counsel rather than rely on the
work of a public defender. He also said they had a
"better chance" of getting out of jail and avoiding
further jail time if they retained him privately. Hummel
convinced both Harville and Sandberg to sign promissory
notes, which, Hummel claimed, would "make it seem as
though" they "had retained him as private
counsel." Hummel indicated that he would never try to
collect on the promissory notes. He also suggested that
Harville sign over to Hummel the weapons seized upon
Harville's arrest to avoid facing further charges related
to the weapons.
John Spencer was the last of the would-be public defense
clients at issue in this case. Spencer met with Hummel after
completing his application for court-appointed counsel.
Hummel asked Spencer for collateral in return for
Hummel's services. And Spencer agreed-at Hummel's
urging-to sign over multiple firearms to Hummel as
collateral. As with Callies, a minute entry suggested that
Hummel had in fact been appointed to represent Spencer.
Hummel admitted that he removed the applications for
court-appointed counsel prepared by four of these
clients-Burke, Harville, Sandberg, and Spencer-from the desk
of the court clerk. When questioned by the clerk about his
actions, Hummel stated that he had destroyed the applications
"because the men would not qualify for the public
Hummel acquired the following property as a result of this
scheme: at least $2, 500 cash, $15, 000 worth of written or
oral promises, and eight firearms.
One of Hummel's clients eventually filed a complaint with
the County Attorney's Office. An investigation ensued.
Hummel was subsequently charged with theft under Utah Code
The case eventually proceeded to trial. At trial the
prosecution advanced distinct theories of Hummel's theft
under the various counts against him-different ways in which
Hummel was alleged to have "obtain[ed] or exercise[d]
unauthorized control over the property of another with a
purpose to deprive him thereof" under Utah Code section
76-6-404. The prosecution's distinct theories were
reflected in the jury instructions. On four of the counts the
prosecution asserted that Hummel had committed theft (or
attempted theft) by "engaging in a deception,
or by engaging in an extortion." On the fifth
count, the one involving Spencer, the prosecution claimed
only that Hummel had obtained the property "by
The jury instructions further described ways that the jury
could find that Hummel had committed theft by
"deception" or "extortion"-they listed
means by which the elements of the crime of theft could be
satisfied. In the instructions the jury was presented with
four ways that Hummel could have extorted his
victims and three ways that he could have deceived
The jurors were not required to reach unanimity on any
particular theory. But they were instructed that unanimity
was required as to the determination that a theft had
occurred. The relevant jury instruction on unanimity read as
follows: "It is not necessary that all of you agree upon
a particular alternative, only that all of you do agree that
a theft under one of the alternatives did occur."
Jury Instruction No. 13.
The jury convicted Hummel on all five counts, and he now
appeals. He raises four arguments. First, Hummel contends
that the jury should have been required to unanimously agree
on theft by deception or extortion for the counts
where both theories were presented. Second, he asserts that
the evidence was insufficient to support a guilty verdict on
all counts. Third, Hummel claims that the prosecution ran
afoul of article 1, section 12 of the Utah Constitution by
changing the theories of theft presented to the jury, in a
manner preventing Hummel from knowing what crimes he was
accused of and from mounting an appropriate defense. Fourth,
he claims that prosecutorial misconduct tainted the verdict
and violated his right to due process. We reject each of
these arguments and affirm.
UNANIMOUS VERDICT CLAUSE
In Utah there is a single crime of "theft." Utah
Code § 76-6-403. In enacting this theft provision the
legislature combined a variety of "separate offenses,
" such as embezzlement, false pretense, extortion, and
blackmail, into what now constitutes ―a single
offense." Id. The elements of that crime are
simple and straightforward. A person commits theft if he
"obtains or exercises unauthorized control over the
property of another with a purpose to deprive him
thereof." Id. § 76-4-404 (stating these
elements in a section titled "Theft-Elements"). Our
law lists common means by which those elements may
be fulfilled. It does so by setting forth ways that one
may exercise unauthorized control over the property of
another, as in different means by which one may engage in
extortion or deception. See id. §§
76-6-405 to -406. But these provisions set forth only
non-exhaustive examples. They describe illustrative ways that
the single crime of theft may be committed. So the once
separate offenses of theft by extortion and theft by
deception are now just manners by which one commits the
single offense of theft.
Sections 405 and 406 hammer this point home. In section 405
we learn that "a person commits theft" (another
indication this is the single crime) "if the
person obtains or exercises control over property of another
person: (i) by deception; and (ii) with a purpose to deprive
the other person of property." Id. §
76-6-405 (emphasis added). And this section then goes on to
identify what does and doesn't count as deception.
Section 406 is similar. It says that "[a] person is
guilty of theft if he obtains or exercises control
over the property of another by extortion and with a
purpose to deprive him thereof, " and also proceeds to
identify prohibited means of extortion. Id. §
76-6-406 (emphasis added).
Theft by deception and theft by extortion are not and cannot
logically be separate offenses. If they were, Hummel could be
charged in separate counts and be convicted on both. That
cannot be. When Hummel took money or property from a client,
he may have both deceived and extorted the client. But he
only committed one act of theft (just like the murderer who
both poisons and suffocates the same victim has committed
only one murder). This is why Hummel's counts are defined
by victim, and not theory or manner of committing theft.
Nothing in the record on appeal suggests that the jury was
less than unanimous in its decision to convict Hummel of
theft. Nor is there any basis for finding a lack of unanimity
as to the elements of theft in section 76-6-403.
Yet the jury was not given a special verdict form. It was
asked to return only a general verdict. So we cannot tell
from the record which of the prosecution's various
theories the jury may have relied on, or whether it was
unanimous as to which theory it accepted. And this
uncertainty is the focus of Hummel's unanimity argument
on appeal. He asserts that unanimity was required as to which
of the prosecution's various theories of theft was
accepted by the jury. And he also claims that evidence of at
least some of those theories was lacking-a point he advances
as a distinct (if related) basis for reversal.
We affirm. First, we conclude that our precedent does not
support the requirement of unanimity or sufficiency of the
evidence for alternative, exemplary means of committing a
crime. With that conclusion in mind, we take a fresh look at
our law of unanimity in light of the text and historical
understanding of the Unanimous Verdict Clause. Because there
is no textual, historical, or logical basis for a requirement
of unanimity or sufficiency of the evidence as to alternative
means of committing a crime, we conclude that the Utah
Constitution imposes no such requirement. And we accordingly
hold that there is no basis for reversal on the record before
us on this appeal.
Supreme Court Precedent on Unanimity
The Unanimous Verdict Clause requires 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. That is the jury's function-to
render a verdict on the defendant's guilt on the charges
presented for their deliberation. And a non-unanimous verdict
has long been viewed as an invalid one. If there are holdouts
on the appropriate verdict, the result is a mistrial.
See, e.g., State v. Moore, 126 P. 322, 323 (Utah
1912) (noting that a trial "resulted in a mistrial for
the reason that the jury was unable to agree upon a
The implications of this constitutional requirement do not
stop there. The article I, section 10 requirement of
unanimity "is not met if a jury unanimously finds only
that a defendant is guilty of a crime.'"
State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d
951 (plurality opinion) (emphasis added). The Unanimous
Verdict Clause requires unanimity as to each count of
each distinct crime charged by the prosecution and
submitted to the jury for decision. So a generic
"guilty" verdict that does not differentiate among
various charges would fall short. See also infra
¶ 54 (citing an 1859 Maryland case in which the court
refused to accept a verdict of "guilty" of murder
in a circumstance in which the jury was required to also
determine the precise degree of murder involved).
For similar reasons, a verdict would not be "valid if
some jurors found a defendant guilty of robbery while others
found him guilty of theft, even though all jurors agree that
he was guilty of some crime." Saunders, 1999 UT
59, ¶ 60. There is no such thing as an omnibus
"crime" in Utah. Our crimes are set out distinctly
in our law, with different elements and distinct punishments
for each offense. So a verdict of "guilty of some
crime" would not tell us whether the jury was unanimous
in finding guilt on any individual crime. And the verdict
would fall short on that basis.
The same goes for the notion that 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. These are distinct counts or
separate instances of the crime of robbery, which would have
to be charged as such. So we have also concluded that
"[j]ury unanimity means unanimity as to a specific
We have also said that "'a jury must be unanimous on
all elements of a criminal charge for [a] conviction to
stand.'" State v. Johnson, 821 P.2d 1150,
1159 (Utah 1991). If there is a holdout on the jury on one of
the essential elements of one of the crimes charged, there is
necessarily a lack of unanimity on the question of the
defendant's guilt. So if the verdict indicates a lack of
unanimity on one of the essential elements of a charged
crime, there will also be a basis for a reversal under the
Unanimous Verdict Clause.
All of the above is well-established in our law. But Hummel
asks us to take our statements in Saunders and
Johnson a substantial step further. He asks us to
view our cases as establishing a requirement that each
"theory" presented to the jury be supported by
sufficient evidence. The scope of the term theory is
not entirely clear from the briefing. But it appears to
encompass all methods, modes, or manners by which a defendant
is accused of committing a crime. We find no basis for this
requirement in our precedent. We have never required
unanimity-or sufficient evidence-on alternate manners or
means of fulfilling an element of a crime. Instead,
Johnson and the cases it relied on required
sufficient evidence on alternate elements of a crime
as defined in our law. Our cases have used loose, broad
language-referring to unanimity as to "theories" or
"methods, modes, or manners" of committing a
crime. But we have never required unanimity or
sufficient evidence on anything other than an
element- or alternative element- of a crime.
Johnson involved alternate elements of the crime of
attempted aggravated murder. By statute, attempted aggravated
murder requires proof that the defendant attempted to cause
the death of another intentionally or knowingly and
that one of several aggravating circumstances was
established. Utah Code § 76-5-202. In Johnson
the prosecution alleged two aggravating circumstances
-"(i) attempting to kill by administration of oxalic
acid, which was either (a) a 'poison' or 'a
lethal substance' or (b) 'a substance administered in
lethal amount, dosage or quantity'; or (ii) attempting to
kill 'for the purpose of pecuniary or other personal
gain.'" Johnson, 821 P.2d at 1158 (quoting
Utah Code § 76-5-202(1)(n) & (f) (1990)). Because
"the State failed to prove either that oxalic acid is a
poison or a lethal substance or that Johnson administered or
attempted to administer a quantity of the acid that would
have been lethal, " the Johnson court found a
unanimity problem with the verdict. Id. It reversed
the aggravated attempted murder conviction without
considering the sufficiency of the evidence on the other
statutory aggravator - attempting to kill for pecuniary or
other personal gain. And it based that decision on the
Unanimous Verdict Clause.
The problem in Johnson was rooted in the jury's
entry of only a general verdict. "No special verdicts
were given that would indicate upon which aggravating
circumstance the jury based the conviction."
Id. at 1159. And because the court "has stated
that a jury must be unanimous on all elements of a
criminal charge for the conviction to stand, " the
Johnson court held that reversal was required
"if the State's case was premised on more than one
factual or legal theory of the elements of the crime
and any one of those theories is flawed or lacks the
requisite evidentiary foundation." Id.
(emphasis added). But the Johnson court's
subsequent analysis of sufficient evidence was only on the
alternative elements of the crime, not anything below that
level, such as theories or modes. So its broader language
must be read in light of what it said elsewhere, and what it
actually did- merely require sufficient evidence on both
alternative elements, nothing more.
The Johnson opinion cannot sustain the broad reading
Hummel gives it. Johnson in no way requires
sufficient evidence on every method or means of
fulfilling each individual element of each crime in question.
It imposes that requirement only for "all elements of a
criminal charge." Id.
Johnson's predecessors are along the same lines.
The plurality in State v. Tillman required unanimity
on-and sufficient evidence to support a verdict on-the
alternative elements of the crime of first-degree murder. 750
P.2d 546, 562-68 (Utah 1987) (plurality of the court
requiring unanimity as to which of two aggravating
circumstances was established-specifically, whether defendant
intentionally caused the victim's death while engaged in
the commission of (a) burglary or attempted burglary, or (b)
arson or attempted arson). Our other cases are
Thus, the sufficiency of evidence requirement pushed by
Hummel is by no means clearly established. Our past cases
have invoked this principle only in the context of
alternative elements of a crime. We have never
extended this principle to proof of alternative means of
fulfilling an element of a crime.
Unanimous Verdict Clause
Our precedents in this field are entitled to a measure of
respect. "Stare decisis 'is a cornerstone
of Anglo-American jurisprudence.'" Eldridge v.
Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (citation
omitted). It "is crucial to the predictability of the
law and the fairness of adjudication." Id.
Yet the presumption of preserving our past holdings is a
rebuttable one. The "presumption against overruling
precedent is not equally strong in all cases."
Id. at ¶ 22. We have identified circumstances
in which we may properly repudiate the standards in our prior
decisions, as where the standard we have adopted has become
unworkable over time, in a manner that sustains no
significant interest of reliance on our decisions. See
id. (observing that "how firmly precedent has
become established . . . encompasses a variety of
considerations, including . . . how well it has worked in
practice, . . . and the extent to which people's reliance
on the precedent would create injustice or hardship if it
In all events, the principle of stare decisis is
focused on holdings of our prior decisions. Our law
has long recognized a significant distinction between holding
and dicta. See Spring Canyon Coal Co. v. Indus.
Comm'n of Utah, 277 P. 206, 210 (Utah 1929)
("Dictum is not embraced within the rule of stare
decisis."). Thus, we retain even greater flexibility on
points of law reflected only in the broad dicta of our prior
decisions. See Eldridge, 2015 UT 21, ¶ 32
(suggesting a relaxed standard for repudiation of dicta,
noting that "we would follow even . . . dicta if we had
no good reason to do otherwise").
That is where we stand on the question in this case. We have
never squarely decided whether the Unanimous Verdict Clause
requires unanimity on different means of fulfilling the
elements of a crime, much less whether any such requirement
should also sustain a requirement of sufficient evidence on
each such means presented to the jury. This is an important
issue. Absent a square holding resolving it, we return to
first principles-to the text and original meaning of the
constitution. And we affirm.
First, there is nothing in the language or history of the
Unanimous Verdict Clause to support the requirement of
unanimity on, or sufficient evidence of, alternative means of
fulfilling the elements of a crime. The constitution requires
unanimity only as to the "verdict, " and that
guarantee has long been understood to be limited to the
matters submitted to the jury for decision (as to the
defendant's guilt). So we interpret the Utah Constitution
in line with this understanding, and affirm on the ground
that there is no relevant unanimity problem on the record
before us on this appeal.
Second, there is no logical connection between the
constitutional guarantee of a unanimous verdict and the
judicially imposed requirement of sufficient evidence to
support alternative theories advanced by the prosecution. If
anything the existence of sufficient evidence to sustain
alternative theories would heighten the risk of a
lack of unanimity. See infra ¶¶ 77-79. And
if we were serious about requiring unanimity as to
alternative means of fulfilling an element of a crime, we
would not examine the sufficiency of the evidence; we would
require a special verdict form. Our longstanding refusal to
do so underscores the fact that the sufficiency of the
evidence requirement is not a component of the constitutional
guarantee of unanimity. This suggests that it would be
improper to extend Johnson for this reason as well.
We may have reason to respect the Johnson decision
as a matter of stare decisis; but there is no basis
for extending it further.
Finally, there is tension between the principle advanced by
Hummel and longstanding caselaw on harmless error. The
operative principle in these parallel cases goes to the
appellant's burden of persuasion on appeal. That burden
has long been understood to encompass an obligation to prove
not only error but prejudice. The converse
principle is known as the doctrine of harmless error. It
holds that we reverse a judgment on appeal only if an error
is shown to have likely made a difference in the lower court.
And it yields the benefit of the doubt on that question to
the appellee-or in other words to the outcome in the lower
court. Hummel's reading of the Unanimous Verdict Clause
is in substantial tension with this doctrine. Allowing an
appellant to overturn a verdict based only on a showing of
insufficient evidence to support an alternative means of
establishing an element of a crime is problematic. It
effectively suspends the requirement that an appellant
establish not just error, but prejudicial error. And
it does so by yielding the benefit of the doubt to the
appellant-by holding that because we can't be sure there
was unanimity where there is a lack of evidence on
alternative means of proving an element of a crime, we should
reverse and remand for a new trial.
and Original Meaning
In adopting the Unanimous Verdict Clause, the framers of our
Utah Constitution indicated their intent to memorialize a
"well[-]understood, definite, common-law"
principle. 1 Utah Convention Debates 494 (1895). We therefore
interpret this provision in a matter in line with this
historical understanding. And we reject the requirement of
unanimity as to alternative means of fulfilling an element of
a crime. We affirm here because the jury was unanimous on its
verdict- on all matters submitted to it for
Historical principles of unanimity
The requirement of a unanimous jury has common law origins.
At common law, "the truth of every accusation" - of
any criminal charge in an "indictment" or
"information" - had to "be confirmed by the
unanimous suffrage of twelve of [the defendant's] equals
and neighbors." 4 William Blackstone, Commentaries on
the Laws of England 343 (1769). This was an essential feature
of the common law right to a jury trial at the time of the
founding of our state Constitution. "A trial by jury
[wa]s generally understood to mean . . . a trial by a jury of
twelve men, impartially selected, who must unanimously concur
in the guilt of the accused before a legal
conviction c[ould] be had." 2 Joseph Story, Commentaries
on the Constitution of the United States 559 n.2 (5th ed.
1891) (emphasis added).
Yet the requirement of unanimity went no further than that.
Unanimity was required "on the point or issue submitted
to the jury." Archibald Brown, A New Law Dictionary
and Institute of the Whole Law 377 (1874). And the point or
issue submitted to the jury was purely a matter of guilt.
Jurors were asked only to render a decision on the criminal
charges presented-to enter a verdict of "guilty" or
"not guilty" on each charge submitted for their
deliberation. So "jurors [we]re not obliged to agree in
the reason for finding a verdict as it is found; and if a
reason be given by one or more of them, upon a question being
asked by the judge, for finding it as it is ...