State v. Hall

2026 UT App 121
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ICHAEL R AY HALL,
Appellant.
Opinion
No. 20250089-CA
Filed August 6, 2026
Second District Court, Farmington Department
The Honorable Rita Cornish
No. 181701645
Edwin S. Wall, Attorney for Appellant
Derek E. Brown, David A. Simpson, and
Terry M. Crist III, Attorneys for Appellee
JUDGE R YAN D. T ENNEY authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JOHN D. LUTHY concurred.
JUDGE D AVID N. M ORTENSEN authored a concurring opinion, in
which JUDGES R YAN D. TENNEY and JOHN D. L UTHY joined.
TENNEY, Judge:
¶1 	Michael Hall was charged with one count of sodomy upon
a child and six counts of aggravated sexual abuse of a child. After
a seven-day jury trial, Hall was convicted of two counts of
aggravated sexual abuse of a child and acquitted of the remaining
counts. He now appeals his convictions, raising a jury unanimity

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20250089-CA 	2 	2026 UT App 121
claim and an improper Allen charge claim.1 For the reasons set
forth below, we affirm.
BACKGROUND2
¶2 	In the mid-2010s, Molly3 lived with her mother (Mother)
and older brother in Layton. Due to Mother’s work schedule, she
would 	take 	Molly 	and 	her 	brother 	to 	the 	house 	of 	their
grandmother 	(Grandmother) 	in 	the 	morning; 	Grandmother
would then take the kids to and from school and watch the kids
at her house while Mother worked. Grandmother lived with Hall
in what the couple considered to be a common law marriage. The
two had been together since 2005, and Hall—who had known
Mother’s children “all of their lives”—was known as “Papa” to
them.
¶3 	In November 2017, which was during Molly’s second-
grade year, Prevent Child Abuse Utah came to her school and
showed a video called “What To Do About Secrets.” The video
was intended to help children learn to recognize the signs of abuse
and know to report such abuse to “trusted adult[s].” On April 24,
2018, Mother took Molly for a routine visit to her doctor. After the
visit, when Mother and Molly got into the car, Molly told Mother
1. In Allen v. United States, 164 U.S. 492 (1896), the United States
Supreme Court approved the use of supplemental verdict-urging
instructions when a jury is deadlocked. Hence, such instructions
are often referred to as “Allen charges.” See State v. Lactod, 761 P.2d
23, 30 (Utah Ct. App. 1988) (upholding “the non-coercive use of
Allen charges” as “a reasonable and proper exercise of the court’s
power to guide the jury to a fair and impartial verdict”).
2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Alires, 2019 UT App 206, n.1, 455 P.3d 636 (quotation simplified).
3. A pseudonym.

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20250089-CA 	3 	2026 UT App 121
that she was “being child abused by Papa.” Mother immediately
went back in to talk to the doctor, and she was instructed to call
the Children’s Justice Center (CJC) to arrange for an interview and
exam, which Mother did the next day.
¶4 	Based on Molly’s allegations during the CJC interview,
Hall was later charged with one count of sodomy upon a child
(Count 1) and six counts of aggravated sexual abuse of a child
(Counts 2 through 7). A seven-day jury trial was held in October
2024.
Molly’s Testimony at Trial
¶5 	At trial, Molly testified about the following incidents,
which formed the basis for Counts 2 and 3.4
¶6 	Molly testified that “the first time [she] remember[ed]
being touched” was when she was in first grade. She had “just
gotten home from school” when Hall “called [her] over and . . .
told [her] to sit in his lap.” When she did, Hall “put his hand down
the front of [her] pants.” She testified that “[t]his was in the TV
room” and that Hall “was sitting in a black gaming chair that was
leather and torn up.” Molly testified that Hall “put his hand down
the front of [her] pants under [her] underwear and put his hand
really close to [her] vagina” and then “was touching [her] vagina”
and “started wiggling his fingers back and forth.” Hall “stopped
. . . a little later” when Grandmother “called [Molly] into the other
room for dinner.”
¶7 	The prosecutor then asked Molly if Hall “ever touch[ed]
[her] genitals with his hand in a different location of the home
other than on the gaming chair.” Molly responded, “Yes, [he]
did,” and she then described an incident that “happened up in
4. As will be noted below, the jury convicted Hall on Counts 2 and
3 but acquitted him on the other counts. Given this, we’ll focus
our factual recitation on the portions of Molly’s testimony related
to Counts 2 and 3.

State v. Hall
20250089-CA 	4 	2026 UT App 121
[Hall’s] bedroom.” She testified that Hall had “told [her] to follow
him upstairs” and “lay down on the bed once [they] got up to his
room.” Hall “was laying behind [her], and [she] was laying in
front of him” on “the right side of the bed.” Hall “took his hand,
and he put it down the front of [her] pants like he did in the chair”
and “started wiggling” his fingers “under [her] underwear and
[her] pants,” with his hand “touching [her] vagina.”
Jury Instructions
¶8 	On the fifth day of trial, the parties discussed proposed jury
instructions with the court during a jury recess. Hall’s counsel
(Counsel) had proposed a unanimity instruction and clarified that
this 	instruction 	was 	necessary 	because 	the 	jury 	must 	be
unanimous 	on 	“the 	act 	and 	occasion 	as 	well 	as 	the 	other
elements.” During this discussion, the prosecutor acknowledged
that “there are two counts where [Hall] touches [Molly’s] . . .
genitals” and suggested that the instructions “separate [the
counts] to touching her genitals in the bedroom and touching her
genitals . . . in the TV room” in order “to be as specific as” they
could be. The court then asked Counsel if he “[had] any objection
to doing that with respect to Counts 2 and 3,” to which Counsel
replied, “I think that’s appropriate.” The prosecutor responded,
“So let’s just do [Count 2] on the lap in the game room, and then
[Count 3] would be up in the bedroom. I believe that’s the order
[Molly] discussed it.”
¶9 	Consistent with this discussion, the final jury instructions
that were given to the jury included the following:
• 	Instruction 34 told the jury that for Counts 1 through 7,
“[w]hen determining whether [Hall] committed Sodomy
Upon a Child and Aggravated Sexual Abuse of a Child,
you must be unanimous as to which occasion and which
act 	[Hall] 	committed 	for 	each 	count, 	and 	that 	the
prosecution has proven all the elements for that count.”

State v. Hall
20250089-CA 	5 	2026 UT App 121
• 	Instruction 35 stated that in Counts 2 through 7, the
prosecution had charged Hall with committing aggravated
sexual abuse of a child “multiple times.” And it further
stated, “You may not find [Hall] guilty of any count unless
you unanimously agree the prosecution has proven the
specific act in the elements of the offense for each count
AND you unanimously agree the prosecution has proven
all other elements of the count.”
Instruction 35 then laid out the basis for Counts 2 and 3 as
follows:
“Count (2) is based on the alleged conduct of
touching the genitalia of a child or otherwise taking
indecent liberties with a child. The conduct was
touching [Molly’s] genitals with his hand in the T.V.
room.”
“Count (3) is based on the alleged conduct of
touching the genitalia of a child or otherwise taking
indecent liberties with a child. The conduct was
touching [Molly’s] genitals with his hand in the
bedroom.”
• 	Instruction 40 set forth the elements for Count 2 as being,
in relevant part, that Hall “touched [Molly’s] genitals, even
if accomplished through the clothing, while in the TV
room.”
• 	Instruction 45 set forth the elements for Count 3 as being,
in relevant part, that Hall “touched [Molly’s] genitals, even
if accomplished through the clothing, in the bedroom.”
Closing Arguments
¶10 	During 	the 	State’s 	closing 	argument, 	the 	prosecutor
referred to Instructions 40 and 45 when summarizing the portions

State v. Hall
20250089-CA 	6 	2026 UT App 121
of Molly’s testimony that formed the basis for Counts 2 and 3.
Specifically, the prosecutor delineated the two counts as follows:
Instruction 40 talks about what you would need to
find in regards to when [Molly] is sitting on . . .
Hall’s lap, the defendant, in that gaming chair. And
what does he do? He puts his hand down her pants
and he touches her genitals.
. . . .
. . . [T]he next thing I want you to think about
is [I]nstruction 45. It’s important to know that there
are two events where [Hall] used his finger and
rubbed or wiggled or touched on the genitals of
[Molly].
One she described sitting in that chair, sitting
in his lap . . . .
Another time she discussed sitting up, they
were laying on the bed. He’s laying behind her.
She’s going the other direction. And he uses his
hand to touch her genitals again.
Jury Deliberation and Inquiries
¶11 	The jury began deliberations the morning after the parties
delivered closing arguments. At 5:00 p.m. that day, the court
summoned the parties to the courtroom and informed them that
the jury had indicated that it had reached a verdict. Before calling
the jury in, the court informed the parties that, during the course
of jury deliberations, it had received three inquiries from the jury.
The court explained, “Because they were pretty straightforward
inquiries, I did not call counsel in.” The court then read the jury
inquiries and its responses to the parties.

State v. Hall
20250089-CA 	7 	2026 UT App 121
¶12 	As 	applicable 	here, 	the 	third 	inquiry 	had 	stated,
“We cannot 	agree 	on 	one 	of 	the 	counts. 	If 	we 	are 	not
unanimous on one count, would [that] be Not Guilty?” The
court’s response to the jury had been: “Your verdict must be
unanimously Guilty or unanimously Not Guilty on a count by
count basis. You should continue to deliberate on the count you
are considering until all of you agree guilty or not guilty on that
count.”
¶13 	After reading the jury inquiries and its responses to
the parties, the court told the parties, “[T]he jury continued
to deliberate 	after 	that 	last 	question 	and 	has 	now 	reached
a verdict. Are there any questions before we bring the jury
back in?” Counsel responded, “None from the defense.”
¶14 	The jury then returned to the courtroom and announced its
verdict, wherein it convicted Hall on Counts 2 and 3 but acquitted
him on all other counts.
ISSUES AND STANDARDS OF REVIEW
¶15 	Hall appeals his convictions on two bases. First, he argues
that the jury instructions did not properly distinguish between
Counts 2 and 3 and did not require unanimity as to each count.
“[W]hen a [jury instructions] challenge concerns whether the
instructions correctly state the law, the issue presents a question
of law reviewed for correctness.” Holmes v. Smith, 2026 UT App
89, ¶ 20, -- P.3d --.
¶16 	Second, Hall argues that the Allen charge that was given to
the jury improperly coerced a verdict. But as explained below, we
conclude that this issue is unpreserved and that Hall has not
adequately invoked one of our preservation exceptions. We
accordingly decline to reach the merits of this issue.

State v. Hall
20250089-CA 	8 	2026 UT App 121
ANALYSIS
I. Jury Unanimity
¶17 	The Unanimous Verdict Clause of the Utah Constitution
requires that “[i]n criminal cases the verdict shall be unanimous.”
Utah Const. art. I, § 10. This means that “a jury must be
unanimous on all elements of a criminal charge for a conviction to
stand.” State v. Hummel, 2017 UT 19, ¶ 29, 393 P.3d 314 (quotation
simplified). And “when a defendant is charged with multiple
offenses with identical or similar elements, unanimity as to the
elements requires that the jury be unanimous regarding the
specific act supporting the conviction.” State v. Chadwick, 2024 UT
34, ¶ 32, 554 P.3d 1098 (quotation simplified); see also State v.
Baugh, 2024 UT 33, ¶ 32, 556 P.3d 35 (“If the jury does not agree
on which act relates to each count, then its verdict violates the
Unanimous Verdict Clause.”).
¶18 	Here, in Instruction 34, the jury was instructed that for
Counts 1 through 7, it “must be unanimous as to which occasion
and which act [Hall] committed for each count, and that the
prosecution has proven all the elements for that count.” In
Instruction 35, the jury was also given a specific unanimity
instruction for Counts 2 through 7, where it was again instructed
that it “may not find [Hall] guilty of any count unless [it]
unanimously agree[s] the prosecution has proven the specific act
in 	the 	elements 	of 	the 	offense 	for 	each 	count 	AND 	[it]
unanimously 	agree[s] 	the 	prosecution 	has 	proven 	all 	other
elements of the count.” Further, Instruction 35 clarified that Count
2 was “based on the alleged conduct of” Hall “touching [Molly’s]
genitals with his hand in the T.V. room,” while Count 3 was
“based on the alleged conduct of” Hall “touching [Molly’s]
genitals with his hand in the bedroom.” And this distinction was
reiterated in Instruction 40 and Instruction 45.
¶19 	Despite this, Hall argues that his convictions violated the
Unanimous 	Verdict 	Clause 	because 	Counts 	2 	and 	3 	were
“indistinguishable.” Though a bit unclear, his argument appears

State v. Hall
20250089-CA 	9 	2026 UT App 121
to be twofold: (1) the jury instructions did not properly instruct
the jury that it needed to be unanimous on the acts that supported
Counts 2 and 3, and (2) the jury instructions—along with the
evidence 	offered 	by 	the 	State 	at 	trial—did 	not 	properly
distinguish between the discrete acts that supported the two
counts.5
¶20 	“To merit reversal of a conviction on Unanimous Verdict
Clause grounds, a defendant must show that a constitutional
error has occurred and that error must be prejudicial.” Chadwick,
2024 UT 34, ¶ 31. In cases where multiple acts are at issue, if the
State has elected which specific act is linked to each count, our
confidence in the unanimity of the verdict is generally not
undermined. See Baugh, 2024 UT 33, ¶ 36 (“A unanimity problem
can 	be 	remedied 	by 	prosecutorial 	election.” 	(quotation
simplified)). Moreover, even if the State fails to make such an
election, the unanimity requirement is satisfied if the jury is
“specifically instructed that it must be unanimous regarding both
the 	conduct 	supporting 	conviction 	on 	each 	count 	and 	the
defendant’s guilt.” Chadwick, 2024 UT 34, ¶ 45; see also State v.
Alires, 2019 UT App 206, ¶ 22, 455 P.3d 636 (“Once the State failed
to elect which act supported each charge, the jury should have
been instructed to agree on a specific criminal act for each charge
in order to convict.”).
¶21 	Both things happened here. First, the State made a clear
election of which acts were linked to which count. During trial,
Molly testified about two factually distinct episodes of genital
touching—one that occurred “in the TV room” and another that
occurred “in [Hall’s] bedroom.” During the discussion on the
proposed jury instructions, the State elected to link Count 2 to the
touching of Molly’s genitals that occurred “in the TV room,” and
it elected to link Count 3 to the touching of her genitals that
5. The State contends that this issue is not preserved, but because
the merits of this claim are easily resolved in the State’s favor, we
address it anyway. See State v. Kitches, 2021 UT App 24, ¶ 28, 484
P.3d 415.

State v. Hall
20250089-CA 	10 	2026 UT App 121
occurred “in the bedroom.” Counsel agreed that such an election
was 	“appropriate.” 	In 	its 	closing 	argument, 	the 	State
differentiated between the two counts on this same basis.
¶22 	Second, 	the 	jury 	was 	given 	two 	specific 	unanimity
instructions—Instructions 	34 	and 	35—that 	unambiguously
instructed the jury that it “must be unanimous as to which
occasion and which act [Hall] committed for each count” and that
it “may not find [Hall] guilty of any count unless [it] unanimously
agree[s] 	the 	prosecution 	has proven 	the 	specific act 	in 	the
elements of the offense for each count.” Instructions 40 and 45
drew this same distinction, and indeed, the State referred jurors
to these very instructions when summarizing the portions of
Molly’s testimony that formed the basis for Counts 2 and 3.
¶23 	For these reasons, we see no reversible error with respect
to Hall’s unanimity claim.
II. Allen Charge
¶24 	“Utah law allows a trial court to give deadlocked juries a
supplemental instruction called an Allen charge, in which it may
impress upon jurors the importance of the case, urge them to
come to agreement, and send them back for further deliberation.”
State v. Weaver, 2023 UT App 154, ¶ 22, 541 P.3d 958 (quotation
simplified). “We have upheld the non-coercive use of Allen
charges because we believe such charges to a be a reasonable and
proper exercise of the court’s power to guide the jury to a fair and
impartial 	verdict.” 	Id. 	(quotation 	simplified). 	We 	have 	also
acknowledged that “there are legitimate purposes served by such
a charge, namely, the avoidance of the societal costs of a retrial
both in time and money, and the possible loss of evidence that a
new trial would entail.” Id. (quotation simplified). Thus, in Utah,
Allen charges are “permissible . . . so long as [they are] not
coercive.” State v. Bess, 2019 UT 70, ¶ 58, 473 P.3d 157. In order to
determine 	whether 	an 	Allen 	charge 	is 	coercive, 	we 	have
developed a two-part test, “which requires us to consider whether
(1) the language of the supplemental charge can properly be said

State v. Hall
20250089-CA 	11 	2026 UT App 121
to be coercive per se, or (2) it is coercive under the specific
circumstances of the case.” Weaver, 2023 UT App 154, ¶ 23
(quotation simplified).
¶25 	Here, at some point during jury deliberations, the district
court received a note from the jury that read, “We cannot agree
on one of the counts. If we are not unanimous on one count,
would [that] be Not Guilty?” Without calling in the attorneys, the
court provided the following response: “Your verdict must be
unanimously Guilty or unanimously Not Guilty on a count by
count basis. You should continue to deliberate on the count you
are considering until all of you agree guilty or not guilty on that
count.” Hall now argues that the charge given by the district court
was both coercive per se and coercive under the circumstances of
the case. But on the state of the record and the appellate briefing,
we have no occasion to address the merits of this claim.
¶26 	“When a party fails to raise and argue an issue in the trial
court, it has failed to preserve the issue, and an appellate court
will not typically reach that issue absent a valid exception to
preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. “An
issue is preserved for appeal when it has been presented to the
district court in such a way that the court has an opportunity to
rule on it.” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828
(quotation 	simplified). 	“To 	provide 	the 	court 	with 	this
opportunity, the issue must be specifically raised by the party
asserting error, in a timely manner, and must be supported by
evidence and relevant legal authority.” Johnson, 2017 UT 76, ¶ 15
(quotation simplified).
¶27 	Hall’s 	claim 	is 	unpreserved. 	As 	explained, 	when 	the
district court alerted the parties to what it had done, Counsel did
not object. Nor, for that matter, did he ask the court to give any
additional instruction, order a mistrial, or do anything else to
remedy any potential errors in the court’s Allen charge. Rather,
when the court asked the parties if they had “any questions”
before the court brought the jury back in, Counsel replied, “None

State v. Hall
20250089-CA 	12 	2026 UT App 121
from the defense.” As a result, the challenge Hall now asserts on
appeal is unpreserved.
¶28 	Hall could, in theory, have asked us to review this claim
under one of the recognized preservation exceptions. He could
have argued, for example, that he received ineffective assistance
of counsel because Counsel did not object or perhaps ask for a
mistrial. See id. ¶ 19 (recognizing ineffective assistance of counsel
as an exception to the preservation rule). Alternatively, he could
have argued that because the district court did not inform the
parties about what had happened until after the jury had reached
its verdict, this issue would be reviewable under the exceptional
circumstances 	doctrine, 	see 	id. 	(recognizing 	exceptional
circumstances 	as 	an 	exception 	to 	preservation), 	or 	perhaps
because such an objection would have been futile, see State v.
Ashcraft, 2015 UT 5, ¶ 33, 349 P.3d 664 (recognizing that futility
operates 	as 	“an 	exception 	to 	the 	general 	requirement 	of
preservation”). Or, finally, Hall could have argued that the district
court plainly erred by proceeding as it did. See Johnson, 2017 UT
76, ¶ 19 (recognizing plain error as an exception to preservation).
But on appeal, Hall did not argue ineffective assistance of counsel,
exceptional circumstances, or futility.6 And for reasons that are
unclear to us, in both his opening brief and reply brief, Hall
6. Hall did attempt to invoke the exceptional circumstances
exception in his reply brief. But “[w]hen a party . . . raises [an
issue] for the first time in a reply brief, that issue is waived and
will typically not be addressed by the appellate court.” State v.
Johnson, 2017 UT 76, ¶ 16, 416 P.3d 443. The same is true of
preservation exceptions that are invoked for the first time in a
reply brief. See R4 Constructors LLC v. InBalance Yoga Corp., 2020
UT App 169, ¶ 29, 480 P.3d 1075 (holding that because the
appellant “did not ask this court to consider the issue under an
exception to the rule of preservation until its reply brief, it waived
our consideration of any such argument”); Marcroft v. Labor
Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164 (“Because [the
appellant’s] first invocation of [an] exception to our preservation
requirement appears in his reply brief, we will not consider it.”).

State v. Hall
20250089-CA 	13 	2026 UT App 121
affirmatively asserted that plain error review was unavailable for
this claim.7
¶29 	It is well established that if a claimed error is unpreserved,
an appellant must assert a preservation exception in the opening
brief. See id. (“When an issue is not preserved in the trial court, but
a party seeks to raise it on appeal, the party must establish the
applicability of one of [our preservation] exceptions to persuade
an appellate court to reach that issue.”). Here, Hall did not
properly invoke any preservation exception, and we therefore
have no basis for reviewing this claim. See State v. Gallegos, 2006
UT App 404, ¶ 19, 147 P.3d 473 (holding that because the
appellant did not argue that any preservation exception applied
to an unpreserved issue, “his argument fails on appeal”).
CONCLUSION
¶30 	For the reasons set forth above, we see no reversible error
with regard to Hall’s jury unanimity challenge. And because
Hall’s Allen charge challenge is unpreserved and he has invoked
no exception to our preservation requirement, we decline to reach
the merits of that issue. We accordingly affirm.
MORTENSEN, Judge (concurring):
¶31 	I fully concur in the opinion of the court. I write separately
to highlight a significant breach of best practices the district court
visited upon the parties.
¶32 	The State concedes the verdict-urging instruction given
here is infirm. In its brief, the State unequivocally admits that the
7. To be clear, we are not ruling that any of these preservation
exceptions would or would not have applied. Rather, we’re
simply pointing out that while Hall could have invoked them, he
did not do so in his opening brief.

State v. Hall
20250089-CA 	14 	2026 UT App 121
Allen 	charge 	“was 	unbalanced.” 	Accordingly, 	the 	State
undertakes no effort whatsoever to defend the instruction, instead
relying 	on 	other 	arguments 	to 	prevail 	in 	the 	appeal. 	The
expenditure of all the resources reviewing this issue could have
been easily avoided. Counsel could have, and really should have,
been consulted.
¶33 	The notion that counsel cannot contribute well-thought-
out input to a supplemental jury instruction is short-sighted. And
as 	a 	practical 	matter, 	seeking 	the 	input 	of 	counsel 	on 	an
instruction shows wisdom on many fronts.
¶34 	In multiple cases, defendants have claimed that answering
a jury’s question without the presence of the defendant and
counsel violates the defendant’s rights to counsel and due process
guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution. See State v. Maestas, 2012 UT 46, ¶¶ 72,
81–82, 299 P.3d 892; State v. Dozah, 2016 UT App 13, ¶ 21, 368 P.3d
863. And while such claims have generally not prevailed for
procedural or other reasons, the reviewing courts in these cases
have nevertheless admonished the bench against responding to
jury notes without consulting counsel.
¶35 	After concluding that a failure to consult counsel did not
require reversal in State v. Maestas, our supreme court nonetheless
stated:
[W]e note that, even though the judge did not
commit reversible error in responding to the jury’s
three notes, it is advisable for judges to inform
counsel and disclose the contents of any jury notes
on the record before providing a response. When a
judge answers a jury’s note without consulting
counsel, the judge exposes the verdict to challenges
that could easily be avoided. To protect a verdict
and to respect a defendant’s right to a fair trial,
judges should inform counsel of each note they
receive from the jury.

State v. Hall
20250089-CA 	15 	2026 UT App 121
2012 UT 46, ¶ 94 (emphasis added). Similarly, in State v. Johnson,
this court counseled:
A court is not required to consult counsel before
responding to a jury’s question by simply referring
the jury back to instructions already approved by
counsel. However, such a course of action is risky
because the court’s response to a jury question may
be construed as a new instruction. Responding to a
jury’s question without consulting counsel, while
not in and of itself error, is a departure from the best
practices for a court.
2016 UT App 223, ¶ 22 n.4, 387 P.3d 1048 (cleaned up).8
¶36 	Given the well-developed Utah jurisprudence concerning
verdict-urging instructions,9 it is nearly certain that defense
8. To be sure, responding to a jury note with a substantive
instruction may very well constitute error. See State v. Maestas,
2012 UT 46, ¶ 82, 299 P.3d 892 (observing that some courts have
held 	that 	giving 	supplemental 	instructions 	regarding 	the
elements of an offense and how a jury is to proceed when it is
deadlocked constitutes a critical stage of the proceeding and
implicates constitutional concerns).
9. See, e.g., State v. Bess, 2019 UT 70, ¶ 58, 473 P.3d 157 (“Utah
courts have repeatedly upheld the use of deadlock instructions as
a permissible way to guide the jury to a fair and impartial verdict,
so long as the instruction is not coercive.” (cleaned up)); State v.
Lactod, 	761 	P.2d 	23, 	29–30 	(Utah 	Ct. 	App. 	1988) 	(formally
endorsing the use of non-coercive Allen charges in Utah courts for
the first time); State v. Scott, 2022 UT App 81, ¶ 21, 514 P.3d 590
(outlining the two-part test for determining whether Allen charges
are coercive and are therefore impermissible); State v. Clements,
967 P.2d 957, 959 (Utah Ct. App. 1998) (noting that the two-part
(continued…)

State v. Hall
20250089-CA 	16 	2026 UT App 121
counsel would have steered the district court here away from an
unbalanced verdict-urging instruction. It is usually the case that
counsel, when given the opportunity, will aid a trial court in
avoiding 	error. 	Convictions 	vacated 	because 	of 	erroneous
instructions are legion. See, e.g., State v. Chadwick, 2024 UT 34,
¶¶ 2–3, 554 P.3d 1098; State v. Eyre, 2021 UT 45, ¶ 2, 500 P.3d 776;
State v. Baugh, 2022 UT App 3, ¶ 27, 504 P.3d 171, aff’d, 2024 UT 33,
556 P.3d 35; State v. Alires, 2019 UT App 206, ¶ 1, 455 P.3d 636;
Dozah, 2016 UT App 13, ¶ 39; State v. Liti, 2015 UT App 186, ¶ 28,
355 P.3d 1078; State v. Irvin, 2007 UT App 319, ¶ 21, 169 P.3d 798;
State v. Davis, 2007 UT App 13, ¶ 1, 155 P.3d 909. Accordingly,
when it comes to instructions on weighty matters, such as a
verdict-urging instruction, failing to include the input of counsel
is folly.
¶37 	By the time a judge receives questions or notes from a
deliberating 	jury, 	immense 	amounts 	of 	time, 	money, 	and
emotional effort have already been invested—not to mention the
significant burden placed on the jurors themselves. In light of
test is “triggered only when the trial court addresses a jury that
has announced it is deadlocked or, at a bare minimum, has
advised the court it is having trouble reaching a verdict” (cleaned
up)); State v. Harry, 2008 UT App 224, ¶ 6, 189 P.3d 98 (recognizing
various benefits of using non-coercive Allen charges, including
“the avoidance of the societal costs of a retrial both in time and
money” and “the possible loss of evidence that a new trial would
entail” (cleaned up)); State v. Weaver, 2023 UT App 154, ¶ 25, 541
P.3d 958 (concluding in the ineffective assistance context that the
defendant’s counsel did not perform deficiently in stipulating to
an Allen charge when it was not “coercive per se”); State v. Cruz,
2016 UT App 234, ¶¶ 65–66, 387 P.3d 618 (finding no error when
the court gave the Allen charge prior to the jury’s indication that
it was deadlocked); State v. Dalton, 2014 UT App 68, ¶¶ 51–52, 331
P.3d 1110 (rejecting the defendant’s argument on appeal that the
Allen charge had to include language specifically informing the
jury that it did not need to reach a verdict in order to be
discharged).

State v. Hall
20250089-CA 	17 	2026 UT App 121
such costs, trial judges should make every effort to prevent the
possibility 	of 	retrial. 	Involving 	counsel 	in 	the 	process 	of
answering jury notes is crucial for several reasons in this respect.
Not only does it help ensure the jury receives the correct legal
guidance, 	but 	it 	also protects against 	a do-over—thanks in
significant part to legal concepts like waiver and invited error.
Beyond these practical benefits, consulting counsel is simply the
right thing to do.
¶38 	Given the overwhelming wisdom of consulting counsel in
such situations, mere inconvenience seems to be driving the
decision to do otherwise. But it only takes a few minutes to get
counsel on the line. And in this day of digital court recording and
cell phones, the slight inconvenience of putting jury questions and
proposed 	answers, 	including 	objections, 	on 	the record, 	and
avoiding 	error 	through 	consultation 	of 	counsel, 	is 	hardly
burdensome. In the future, I hope that trial courts will more
circumspectly consider consulting counsel prior to answering a
note from a deliberating jury.