District Court, Salt Lake Department The Honorable Adam T.
Mow No. 171908080
Taliaferro and Staci Visser, Attorneys for Appellant
D. Reyes and William M. Hains, Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judges Michele M.
Christiansen Forster and Jill M. Pohlman concurred.
Philbert Eugene Alires was charged with six counts of
aggravated sexual abuse of a child-two counts for conduct
toward his youngest daughter and four counts for conduct
toward one of his daughter's friends (the friend). A jury
convicted Alires on two counts, one for each alleged victim,
and acquitted him of the remaining four counts. We agree with
Alires that his trial counsel was constitutionally
ineffective in failing to request an instruction requiring
the jury to reach a unanimous verdict with respect to each
act for which he was convicted. Accordingly, we vacate his
convictions and remand for further proceedings.
One afternoon, Alires and his wife (the mother) hosted a
party for their youngest daughter's eleventh birthday.
The daughter invited two of her guests-the friend and another
friend (the other friend)-to a sleepover that night. As the
evening progressed, the daughter, the friend, and the other
friend joined others in the living room to play a video game
called "Just Dance."
Later that night, after everyone else had left, Alires and
the mother got into a loud argument that the daughter, the
friend, and the other friend overheard. The daughter appeared
visibly upset and "started tearing up because her
parents were fighting." Both Alires and the mother could
tell that the girls overheard and were affected by the
Alires and the mother went to their bedroom and discussed how
they could "try and make [the daughter] happy."
They decided that Alires would join the girls in the living
room and "try to lighten the mood." Alires
testified that he can generally make the daughter happy by
"wrestling" with her and her friends or other
family members because it "usually ends up being a dog
pile" on Alires and it "usually brings the kids
together and usually changes the mood." While Alires
went to the living room, the mother stayed behind to change
into her pajamas.
According to the friend, Alires went into the living room
after the argument and "started trying to dance with
[them]" and "lighten the mood" because
"the fight wasn't very fun for anybody." While
they were dancing, Alires "put his hand on [the
friend's] waist and kind of like slid it down, so [she]
just sat down because [she] felt really uncomfortable."
Alires then "tried dancing with [her] again and he . . .
touched around [her] butt," though he "was kind of
sneaky about it" as if he was "trying to make it
look like it wasn't happening." On direct
examination, the State asked the friend, "[H]ow does
that get accomplished?" She responded, "I'm not
sure. He just did it."
Feeling uncomfortable, the friend sat down on the couch next
to the daughter. Alires sat down between the two and
"started tickling [the daughter]." The friend
testified that, while Alires tickled the daughter, "it
looked like he was touching like in her inner thigh, and like
moved up to her crotch area." According to the friend,
"it was really not tickling, it was more like grabbing
and grosping [sic]." This lasted "probably 15 to 30
seconds." Then, Alires turned to the friend and said,
"I'm going to tickle you now." The friend told
Alires she did not feel well and said, "[P]lease
don't." But Alires started tickling near her
"ribcage and then touched [her] breast area" and
then he "started tickling [her] inner thighs and did the
same thing that he did to [the daughter]." The friend
testified, "[H]e slid his hand up to my vagina and
started like grabbing, and like grosping [sic], I guess"
for "[p]robably about seven to 10 seconds."
According to the friend, when Alires got up from the couch,
the daughter asked, "[D]id he touch you?" The
friend said, "[Y]eah. And he touched you, because I kind
of saw it." The daughter "was like, yeah, can we
just go to my room?"
According to the mother, she entered the living room about
sixty seconds after Alires and told everyone that it was time
to go to bed. The friend testified that it had been
"probably about three minutes," during which time
Alires touched her buttocks "twice," her breasts
"twice," and her vagina "[a]bout four
times," in addition to touching the daughter's thigh
Both the daughter and the other friend testified at trial
that Alires did not touch anyone inappropriately and ...