State v. Jimenez

2025 UT App 76

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
EDWY JIMENEZ,
Appellant.

Opinion
No. 20220662-CA
Filed May 22, 2025

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 201100304

Freyja Johnson and Melissa Jo Townsend,
Attorneys for Appellant
Derek E. Brown and Marian Decker,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 A jury found Edwy Jimenez guilty of sexually abusing his
seven-year-old stepdaughter. Jimenez appeals his conviction,
asserting among other things that his trial attorney provided
ineffective assistance by electing not to seek a jury instruction that
specifically directed the jurors that they needed to unanimously
agree on which act formed the basis for conviction on his sole
criminal charge. We find merit in Jimenez’s argument, and we
therefore reverse his conviction and remand this case to the trial
court for further proceedings, including a new trial.
State v. Jimenez

BACKGROUND 1

Penny’s Home Life

¶2 Penny was five years old when her parents divorced.
Penny’s mother (Mother) married Jimenez about a year later, and
at that time, Penny lived “full-time” with Mother, Jimenez,
Penny’s older sister (Lydia), and Jimenez’s five children. She also
lived “part-time” with her father (Father) and stepmother
(Stepmother). After Mother married Jimenez, the blended family
moved into a six-bedroom house. There, Penny shared a room
with one of Jimenez’s children (Lucy 2), who was about the same
age as Penny. The two had a close relationship; Mother described
them as being “together by the hip all the time.” During this time
period, Mother worked during the day and was home in the
evenings; Jimenez also worked during the day and was home in
the evenings and sometimes in the afternoon. To help take care of

1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Thomas, 2019 UT App 177, n.1, 474 P.3d 470
(cleaned up). Recognizing, however, that our reversal of
Jimenez’s conviction causes the presumption of innocence to
reattach, see Betterman v. Montana, 578 U.S. 437, 441 n.2 (2016)
(observing that “upon renewed prosecution following a
defendant’s successful appeal,” the defendant “again enjoys the
presumption of innocence”), we apply the foregoing standard
somewhat guardedly here. Specifically, concerning the facts
surrounding the charged crimes, we identify the evidence that
supports the verdict, while refraining from characterizing the
alleged criminal conduct as established fact.

2. “Penny,” “Lydia,” and “Lucy” are all pseudonyms.

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the children after school, Jimenez’s mother (Grandmother) was at
the home “[a]lmost every day.”

¶3 Penny’s shared custody was a point of contention between
Mother and Father. Mother recalled that she and Father “never
got along,” that they “always fought over custody,” and that there
was “a lot of contention between” them. On occasion, some of the
adults aired their frustrations in front of Penny; for instance,
Penny described how Stepmother told her that Mother and Father
divorced because Mother “cheated” on Father, that “the only
reason that [Mother] wanted to keep [Penny] and [Lydia] in her
house was because [Father] was paying child support and she
wanted the money,” and that Mother was “bipolar” and refused
“to take her medications.” Additionally, there were differences
between the two homes concerning parental oversight; Mother
explained that she had “very strict rules on drugs, alcohol, and
being with friends,” whereas Mother’s perception was that, at
Father’s house, “there was . . . nobody to monitor that.” Jimenez
later offered his view that, as between the two home
environments, Penny and Lydia believed that his and Mother’s
“house wasn’t fun enough” and “wasn’t a place where [Penny
and Lydia] had everything they wanted.”

Allegations of Abuse

¶4 When Penny was about nine years old, she disclosed to
Stepmother that Jimenez had once “laid on top of her when she
was laying on her bed.” Penny did not describe this instance in
detail, but she told Stepmother that while Jimenez lay on top of
her, he “breathed into her ear,” and that when Penny “asked him
to get up, he kind of chuckled.” Stepmother told Penny to tell
Mother, but Penny said she was hesitant to do so because she was
“afraid” of Mother and “afraid that it wouldn’t do anything.”

¶5 But Penny eventually told Mother that Jimenez had made
her feel “uncomfortable.” Penny remembered that she disclosed

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this to Mother while she was in the car with Mother and Lydia as
they were driving back from a visit with Father. When they
arrived back at Mother and Jimenez’s house, Mother called Penny
into Mother and Jimenez’s bedroom to talk about it. Penny
recalled that when she went in, Jimenez was “leaning against the
dresser crying,” Mother was standing by the bed, and Lydia was
sitting on the bed. Mother asked Jimenez to explain what had
happened, and Jimenez said that he had “laid on top of” Penny
because she “was being goofy.” Mother then asked Penny to tell
her more about what happened, and although Penny did not later
remember what she told Mother in that moment, Lydia
remembered that Penny said Jimenez “made [her] feel
uncomfortable and he touched [her].” Lydia recalled that Jimenez
responded by crying and stating that “[he] should leave, [that his]
kids [were] going to hate [him]” and were “going to think [he
was] an awful person.” Mother responded by telling Penny that
she “must have been dreaming” and that she was “delusional” or
“making stuff up.” Despite these disclosures, no one reported
Penny’s allegations to law enforcement at that time.

¶6 Eventually, when Penny was about eleven years old, she
moved in with Father and Stepmother on a more permanent basis.
By that point, Lydia had already moved in with Father; there had
been an altercation involving Mother and Lydia during which
Mother had been “very physical” and for which Mother was
charged with a misdemeanor. Mother sent Penny to live with
Father to finish the school year because Penny’s school had shifted
to an online format in the wake of the COVID-19 pandemic and
Mother could not supervise her while working during the day.
During this time, Penny began to prefer living with Father
because, as she would later explain, it was “a healthier
environment” and she didn’t get “yelled at” as much.

¶7 It was around this time that Penny told her school
counselor (Counselor) that Jimenez had sexually abused her years
earlier. As part of Penny’s school, her fifth-grade teacher

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(Teacher) started an online discussion forum for students to talk
about how they were doing during the pandemic, and Penny
posted that Mother was “abusing, still kinda is.” Concerned,
Teacher set up a video call with herself, Counselor, and Penny.
Teacher did not recall Penny mentioning in that call that Mother
or Jimenez had abused her. But Penny asked if she could email
Counselor, and shortly after the call, Counselor received an email
(the Email) from Penny stating, among other things, that Jimenez
had “tried to rape” her. The Email stated:

So I haven’t told my mom this but it happened two
years ago. So my stepdad, [Jimenez], he tried to . . .
rape me? He would always call me to his room and
say I didn’t give him a hug that day. Although I did.
However, I was little and didn’t know what he was
doing. I would give him a hug and then he would
grab me and put me on the bed in front of him. I told
my mom, but I didn’t know it was rape. But she
didn’t believe me. And now I’m kind of scared of
[Jimenez] . . . . [Lucy] knows about it. I don’t know
what to do.

Investigation

¶8 Counselor reported Penny’s allegations to the Utah
Division of Child and Family Services (DCFS), prompting an
investigation. A few days later, Penny was interviewed at the
Children’s Justice Center (CJC), where she disclosed to the
interviewer (Interviewer) that Jimenez “tried to rape” her. Penny
stated that “all the kids were in the living room, [Mother] was at
work and [Jimenez] was in his room watching” television. Penny
further stated that Jimenez “[called her] in the room and he said
that [she] didn’t give him a hug that day,” even though she had.
Penny explained that she “gave him a hug and then he . . . [made
her] go on the bed and then [went] behind [her]” and that she

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“was there for, like, an hour or two.” Interviewer then asked
Penny to recount the alleged instance of abuse from the
beginning, including “every[] single thing that happened.” Penny
responded that she “would go into the room and then . . . he
would grab [her] and throw [her] on the bed” and “would go
behind [her].” Penny said she thought that the door was closed,
and when Interviewer asked who had shut the door, Penny
responded that “it was a crack open.” Interviewer asked what
would happen next; Penny answered, “He just stayed there . . .
and like, kind of went back and forth.” Penny told Interviewer
that this happened “like every day” and that after school, “the
kids would be in the living room watching shows or playing their
videogames, and then [Jimenez] would call [her] in and then he
would do it.” Interviewer sought clarification, asking, “Do what
exactly?,” and Penny answered, “The moving up and down.”

¶9 Penny also told Interviewer that “sometimes [Jimenez] did
it in the middle of the night.” She said that she “woke up to him
in the doorway” of her bedroom. Penny also said that Stepmother
told her that “what [Jimenez] was doing . . . was, like, called rape.”
Penny said that she hadn’t initially told Mother that Jimenez had
been “on top of [her]” because Mother would have “ha[d] to call
the police” and Penny “felt guilty” about that. Later in the
interview, Penny said she knew that Jimenez “was trying to have,
you know, sex with [her].” And when Interviewer asked how she
knew that, Penny said that Stepmother had “told [her] about it.”

¶10 As the investigation continued, a law enforcement
investigator asked Teacher to provide any documentation she
might have regarding Penny’s allegations. In response, Teacher
produced a one-and-a-half-page single-spaced letter (the Letter)
that Penny had sent to Teacher sometime after Penny’s fifth-grade
year. In the Letter, Penny told Teacher that she had experienced
both physical and sexual abuse while living with Mother and
Jimenez. Among other things, Penny stated that she was
depressed and had been “crying a lot,” that Mother had forced

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one of Penny’s stepbrothers to “kill both of [their] dogs with an
axe because [the dogs] ate the chickens,” and that the children
“didn’t have any food so [they] had to depend on [themselves].”
Penny also recounted that, at Mother’s house, the children were
“yelled at constantly” and that they were “mentally” and
“physical[ly] abuse[d].” Penny also described how, because of
Mother, Penny “flinch[ed]” whenever Stepmother “raise[d] her
hand or [made] a certain movement,” even though Penny had
“never been hit” at Father’s house. Most notably, in the middle of
a long paragraph about other things, Penny stated as follows: “I
got [molested] when I was seven, up until I was nine by my
stepfather.” Finally, Penny stated that Mother did not believe her
allegations of sexual abuse and that Mother had told Penny that
her allegations were “ruining lives.”

¶11 After completing its investigation, the State charged
Jimenez with a single count of aggravated sexual abuse of a child,
a first-degree felony.

Trial

¶12 On the first day of the three-day trial, before jury selection,
the court discussed jury instructions with the attorneys. During
this discussion, the court raised the issue of jury unanimity,
noting that Jimenez had been charged with only a single count of
abuse and offering its view that, if the State was going to argue
that Jimenez “did it this time and this time . . . what if the jury
says, well, [we] don’t believe that time, but [we] do believe this
and that,” and that if one juror “believe[d] that time but not this
time,” there would be a problem. In response, the State
acknowledged that Penny would indeed testify that sexual abuse
“did happen multiple times,” but it assuaged the court’s concern
by representing that Penny would “specify in detail” about only
“one time” when the abuse happened. After this discussion, the
parties moved on to other matters; Jimenez’s trial counsel
(Counsel) did not request a specific unanimity instruction.

20220662-CA 7 2025 UT App 76
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¶13 In its opening statement, the State started by recounting the
alleged abuse that occurred in Jimenez’s bedroom. The prosecutor
stated that Jimenez “called [Penny] into the bedroom to give her
a hug,” then “pulled her into the bed with him, spooned with her,
and began to rub his penis back and forth on her bum.” The
prosecutor also told the jury that, “[i]n the next couple of years,
this same sort of thing would happen multiple times, always
when [Mother] wasn’t around.”

¶14 The second day of trial began with a conference outside of
the jury’s presence to again discuss proposed jury instructions,
some of which discussed general jury unanimity. One of these
stated that “every single juror must agree with the verdict before
the defendant can be found ‘guilty’ or ‘not guilty,’” another made
clear that the jury “must be unanimous” in the “verdict for each
count charged,” and still another stated that the case “requir[ed]
a unanimous agreement of all the jurors to find a verdict.” But
none of the proposed instructions informed the jury that it must
unanimously agree on which specific act constituted the crime.
Hearing no objection from either party regarding these proposed
instructions, the court asked whether there was anything else
either side wanted to address as to instructions, and both sides
agreed to move forward. Counsel again made no request for a
specific unanimity instruction.

¶15 The State then called Penny to the stand. She testified that
Jimenez had sexually abused her, and she recounted the alleged
abuse in Jimenez’s bedroom in some detail. She testified that, one
day after school, Jimenez was watching television on his bed
when he called Penny into his bedroom, saying that she “hadn’t
given him a hug that day.” Penny said that she had given him a
hug but that Jimenez asked for another. Penny said that Jimenez
then pulled her into a “spooning position” on the bed with her
back “against his front” and proceeded to “grind[]” against her,
rubbing his erect penis against her buttocks while she heard
“heavy breathing.” Penny stated that both she and Jimenez were

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wearing clothes. She then testified that Jimenez did this to her
“regularly,” “[m]ore than multiple times,” for about two years,
when she was between the ages of seven and nine years old.
Penny said that this usually occurred after school, while Mother
was at work and the other kids were in other rooms in the house.

¶16 While Penny focused chiefly on the alleged abuse that
occurred in Jimenez’s bedroom, she also described abuse that she
said occurred in other locations at different times. Penny testified
that sometimes abuse occurred in her bedroom; she stated that
“there were a couple of times where [she] would wake up in the
middle of the night and feel him behind [her],” and then, thinking
she might have been dreaming, she would “open [her] eyes again
and [she] would see him in the doorway just watching [her].” And
she described another specific occasion in which Jimenez “told
[her] to kneel on the ground since [she] . . . had lice” and then
proceeded to “spoon[] behind [her] and was grinding while he
was combing through [her] hair.”

¶17 The State also asked Penny about her statement to
Counselor, in the Email, that she had been “raped.” On that point,
Penny testified that she had been “really confused” when she sent
the Email to Counselor and had said “things that weren’t really
true because [she] didn’t know what was going on and so [she]
tried filling in spaces.” She clarified that Jimenez had not “raped”
her but that he “just molested” her. She explained that she used
the word “rape” because, at the time, she thought “rape and
molestation were basically the same thing.”

¶18 On cross-examination, Penny acknowledged that there
were differences between what she said in the CJC interview and
her testimony at trial, explaining that “[n]ot all of” what she had
said in the CJC interview was the truth. Counsel played clips from
the CJC interview and questioned Penny about her answers in the
interview. Specifically, Counsel questioned Penny about her
statements to Interviewer that Jimenez had “thrown [her] on the

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bed,” that he had molested her for “an hour or two” while the
bedroom door was “a crack open,” and that he had lain on top of
her instead of spooning behind her. Penny acknowledged some
inconsistencies and explained that, in the CJC interview, she had
sometimes “exaggerated.”

¶19 The State also called Teacher, who testified that Penny was
“on top of her academics” and “honest” but that she was
“emotional sometimes” and seemed “more depressed than the
average student.” The prosecutor asked Teacher whether she had
any records relating to Penny’s report of abuse, and Teacher
referred to the Letter. Counsel objected on hearsay grounds, and
after a sidebar discussion, the court overruled the objection, ruling
that the Letter was admissible as “rehabilitation” in response to
Counsel’s charge of Penny’s “character inconsistency.” 3 Teacher
was then permitted to read the Letter aloud to the jury in its
entirety, and the Letter was admitted into evidence as an exhibit.

¶20 Next, the State called Counselor, who had worked with
Penny during her fourth- and fifth-grade years. Counselor
explained that she “didn’t see anything that was out of the
ordinary with [Penny]” and that Penny was “a sweet girl, very
polite.” When the prosecutor asked about the Email, Counsel
again objected on hearsay grounds. But the court overruled the
objection, apparently persuaded by the State’s arguments that the
Email fell under the business record exception to the rule against
hearsay or that the Email, like the Letter, was rehabilitative to

3. It’s a touch unclear from the record, but it appears that the court
was persuaded by the State’s argument that “the purpose of the
[L]etter [was] to show that . . . [Penny] ha[d] been consistent when
she had discussed [the allegations of abuse] to the different
people,” and that the Letter was therefore admissible as a prior
consistent statement. See Utah R. Evid. 801(d)(1)(B).

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State v. Jimenez

Penny’s testimony. The Email was then admitted into evidence,
and Counselor was permitted to read it aloud to the jury.

¶21 Lydia also testified. She explained in more detail why she
went to live with Father, stating that she did not have any issues
with Jimenez but that she moved to Father’s house when she was
sixteen because of a physical altercation with Mother. Lydia also
recounted the instance where she, Mother, Jimenez, and Penny
discussed Jimenez’s alleged sexual abuse in Mother and Jimenez’s
room. Lydia did not claim to have witnessed any of Penny’s
alleged sexual abuse.

¶22 After the State rested and the jury exited the courtroom, the
trial court asked Counsel whether he had “anything that [he]
want[ed] to address.” Counsel responded in the negative.

¶23 The trial continued, and Jimenez presented his defense.
Jimenez first called Mother, who testified, among other things,
that she didn’t report Penny’s allegations because Penny never
said Jimenez “touched” her or that anything “inappropriate”
happened. Rather, Mother testified that Penny said only that there
were “uncomfortable situations,” which Mother didn’t think she
needed to report. Mother also testified that Penny could not have
been alone with Jimenez because Penny and Lucy were always
together and there were other people in the house after school,
including Grandmother who was there “[a]lmost every day.”

¶24 Jimenez then took the stand in his own defense and denied
Penny’s allegations in their entirety, telling the jury that he had
never been alone with Penny in his bedroom. He testified that
when the children came home, he “would be working” and that
Grandmother was “there all the time.” On cross-examination,
Jimenez recalled the bedroom discussion about the allegations
and that Penny had been upset, but he denied crying or saying
that he “need[ed] to leave.” According to Jimenez, during the
bedroom discussion, Penny and Lydia said that “they felt

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uncomfortable” but apologized and said they didn’t want “to
make [Jimenez] feel bad.” Jimenez said he responded by assuring
them that he didn’t “feel bad” and that they “shouldn’t feel bad”
or “feel uncomfortable,” and that if they felt like they “need[ed]
to say something, [they should] say it.” And he testified that he
had a good relationship with Penny.

Final Jury Instructions and Closing Argument

¶25 After the defense rested, the trial court provided the final
set of instructions to the jury. Among these instructions were the
general unanimity instructions discussed above. No instruction
was given to the jury stating that it needed to unanimously agree
as to the specific act that Jimenez committed that would result in
conviction on the single charge of aggravated sexual abuse of a
child. Nor did the jury receive a special verdict form.

¶26 During closing argument, the State addressed the elements
of the crime of aggravated sexual abuse of a child. In doing so, the
prosecutor discussed the alleged abuse where Jimenez “ha[d]
[Penny] in the bedroom and he [was] spooning with her, rubbing
his penis back and forth, up and down against her buttocks while
he [was] heavy breathing.” But the prosecutor also emphasized
that the abuse happened repeatedly, stating that “this wasn’t . . .
a one-time thing” and that there were “multiple times” when
Jimenez “would use a hug to get her in bed and then rub his penis
on her bum.” And later, the prosecutor repeated the assertion that
this “happened multiple times.” But at no point did the
prosecutor tell the jury that its focus should be limited to abuse
that occurred in Jimenez’s bedroom.

¶27 Counsel’s closing argument focused on inconsistencies in
Penny’s allegations over time and on the purported influence of
Interviewer. Counsel argued that the CJC interview was meant to
elicit words like “penis” and “sexual breathing,” after which
DCFS could conclude that it had “got[ten] what [it] need[ed].” In

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particular, Counsel asserted that DCFS “got[] somebody to
come in and say that this happened and then [it] pried and [it]
dug and [it] suggested, and . . . now, [it] ha[d] sexual breathing, a
penis is involved, . . . it happened multiple times.” Counsel
argued that “[n]one of those things were there when [Penny] first
walked in” to the CJC interview. Counsel also argued that
Father and Stepmother had influenced Penny and that,
ultimately, there were “plenty of issues and drama that [was]
going on here that [gave Penny] plenty of reasons to have made a
false accusation.”

¶28 The prosecutor then offered a rebuttal closing, challenging
Counsel’s points about the CJC interview and Counsel’s
argument that Penny was influenced to make a false accusation
or was “mistaken” or “misremembering” the instances of abuse.
The State again argued, “This wasn’t just one incident. This was a
pattern over a couple of years. This was something that [Penny]
endured repeatedly.” And here, the State indirectly alluded to the
abuse that allegedly occurred in the other two locations—in
Penny’s bedroom and during the lice incident—stating as follows:
“[T]he part that never really changes, is that he was rubbing his
erect penis on her butt. She knew what happened. She’s not
mistaken about that. It wasn’t like, man, all . . . these times this
happened, I guess that’s just a false memory. No.”

¶29 After deliberation, the jury convicted Jimenez of one count
of aggravated sexual abuse of a child. Later, the trial court
sentenced Jimenez to prison.

ISSUE AND STANDARD OF REVIEW

¶30 Jimenez now appeals, arguing that Counsel rendered
ineffective assistance by failing to request a specific unanimity
jury instruction. “When an ineffective assistance claim is raised

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for the first time on appeal, it presents a question of law.” State v.
Rivera, 2022 UT App 44, ¶ 21, 509 P.3d 257. 4

ANALYSIS

¶31 Jimenez asserts that Counsel rendered constitutionally
ineffective assistance by not asking for a specific instruction
regarding jury unanimity, one that would have informed the jury
that it needed to reach unanimous agreement about which of the
several acts alleged by Penny formed the basis for any eventual
conviction on the single charged count. Jimenez points out that
such an instruction was important in this case, because he was
charged with only one count yet Penny alleged that abuse
happened multiple times, including in three specifically described

4. In his appellate briefs, Jimenez raises several other issues. For
instance, he challenges—on hearsay grounds—the trial court’s
decision to admit the Letter and the Email, and he raises
additional ineffective assistance arguments. He has also filed a
motion, pursuant to rule 23B of the Utah Rules of Appellate
Procedure, seeking an order remanding the case to the trial court
for additional factfinding related to some of his other ineffective
assistance arguments. Given our resolution of the jury unanimity
issue, we need not reach any of Jimenez’s other arguments. And
while we retain the discretion to address some of those arguments
for the purpose of giving guidance to the trial court on remand,
see, e.g., State v. Valdez, 2021 UT App 13, ¶ 54, 482 P.3d 861, aff’d,
2023 UT 26, 552 P.3d 159, we elect not to do so here, despite
harboring certain reservations about the admission of the Letter
and the Email in their entirety. The other issues Jimenez raises are,
in our view, quite dependent on context, and these issues—
should they arise on remand—will almost certainly be framed
differently than they were in the first trial. We are thus not
convinced that any guidance we might give on these other issues
would necessarily be all that useful on remand.

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locations and circumstances: (1) in Jimenez’s bed in the afternoon
after school, (2) in Penny’s bed at night when she was asleep, and
(3) at some point when Jimenez combed lice out of her hair.

¶32 We begin our analysis by reviewing the law on jury
unanimity, and we conclude that Jimenez would have been
entitled to a specific unanimity instruction had one been
requested. We then transition to an analysis of whether Counsel
rendered ineffective assistance by not making such a request. For
the reasons discussed, we find merit in Jimenez’s claim.

A

¶33 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.” Id.
¶¶ 26, 30 (cleaned up). 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 (cleaned up). 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 (cleaned up). 5

5. For example, 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.”
State v. Hummel, 2017 UT 19, ¶ 28, 393 P.3d 314 (cleaned up).

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¶34 In cases like this one, “where the evidence indicates that
more than one distinct criminal act has been committed but the
defendant is charged with only one count of criminal conduct,”
we have held that “the jury must be unanimous as to which act or
incident constitutes the charged crime.” State v. Granere, 2024 UT
App 1, ¶ 33, 543 P.3d 177 (cleaned up), cert. denied, 558 P.3d 87
(Utah 2024). And “where neither the charges nor the elements
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.” State v. Alires,
2019 UT App 206, ¶ 23, 455 P.3d 636 (cleaned up), cert. denied, 466
P.3d 1076 (Utah 2020).

¶35 In Alires, 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. In turn,
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.

¶36 In this case, as in Alires, the State’s presentation of the
evidence called for a specific unanimity instruction. Even though
the State had charged Jimenez with just one count of sexual abuse,
it presented evidence that Jimenez had abused Penny “multiple
times”; in particular, it elicited testimony from Penny that abuse
had occurred in three different specific locations. Penny testified

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State v. Jimenez

that abuse had occurred in Jimenez’s bedroom after school, but
she also testified about a “couple of times where [she] would
wake up in the middle of the night” in her own bedroom “and feel
him behind [her].” In addition, Penny offered testimony about
another occasion where Jimenez “spoon[ed] behind [her] and was
grinding while he was combing through [her] hair” for lice. The
elements instruction provided to the jury did not tell the jury
which specific act was connected to the solitary charge, and there
was no specific jury unanimity instruction informing the jury that
it needed to agree unanimously about which act would form the
basis for conviction.

¶37 And, as discussed more fully below, we reject the State’s
argument that, during the course of the trial, the prosecutor
provided sufficient clarity on this point. To be sure, in opening
and closing arguments, the prosecutor discussed the actual details
of only one of the specific locations and circumstances Penny had
described: abuse that allegedly occurred in Jimenez’s bedroom.
But in both opening and closing arguments, the prosecutor
asserted that abuse had occurred “multiple times,” and he
indirectly alluded to abuse that allegedly occurred in the other
two locations—in Penny’s bedroom and during the lice incident—
by stating as follows: “[T]he part that never really changes, is that
he was rubbing his erect penis on her butt.” Significantly, at no
point did the State attempt to limit the jury’s consideration of
charged criminal activity to a single actus reus. In this situation,
as in Alires, “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.

¶38 In sum, given the manner in which this case was presented
to the jury, Jimenez was entitled to a specific jury unanimity
instruction 6 and—as indicated by the trial court’s sua sponte

6. Indeed, the State makes no argument to the contrary.

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State v. Jimenez

flagging of the issue—would certainly have been granted one had
Counsel made a request.

B

¶39 The issue presented here, then, is whether Counsel’s failure
to ask for a specific unanimity instruction constituted ineffective
assistance.

¶40 To succeed on an ineffective assistance claim, Jimenez must
make a two-part showing: (1) that Counsel’s performance was
deficient in that it “fell below an objective standard of
reasonableness” and (2) that this deficient performance
“prejudiced the defense” such that “there is a reasonable
probability that, but for [C]ounsel’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. Failure to prove either component is fatal; “[u]nless a
defendant makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the adversary process
that renders the result unreliable.” Strickland, 466 U.S. at 687.

1

¶41 We first address whether Counsel performed deficiently
by not requesting a specific unanimity instruction. This first part
of the test requires Jimenez to show that Counsel’s performance
“fell below an objective standard of reasonableness.” Scott, 2020
UT 13, ¶ 31 (cleaned up). In evaluating the reasonableness of an
attorney’s actions, courts will often look to whether the actions the
attorney took were 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

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State v. Jimenez

whether that conduct was objectively reasonable,” see 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.

¶42 When the trial in this case occurred—April 2022—the law
on jury unanimity was well established. See Alires, 2019 UT App
206, ¶ 19. We decided Alires well over two years before Jimenez’s
trial took place, and in the intervening period we applied the
principles set out in Alires at least seven times. See State v.
Mottaghian, 2022 UT App 8, ¶ 56, 504 P.3d 773; State v. Baugh, 2022
UT App 3, ¶ 15, 504 P.3d 171, aff’d, 2024 UT 33, 556 P.3d 35; State
v. Paule, 2021 UT App 120, ¶ 42, 502 P.3d 1217, aff’d, 2024 UT 2, 554
P.3d 844; State v. Mendoza, 2021 UT App 79, ¶ 11, 496 P.3d 275;
State v. Gollaher, 2020 UT App 131, ¶ 33, 474 P.3d 1018; State v.
Whytock, 2020 UT App 107, ¶¶ 30–31, 469 P.3d 1150; State v. Case,
2020 UT App 81, ¶ 23, 467 P.3d 893; see also State v. Baugh, 2024 UT
33, ¶ 30, 556 P.3d 35 (“Relevant case law is one of several factors
to consider in assessing the reasonableness of counsel’s
performance.”). These cases stand for the proposition that when
the State presents evidence that a defendant has committed more
criminal acts than the number of charged counts, a jury unanimity
concern may be present and an attorney may perform deficiently
by not asking for a specific unanimity instruction.

¶43 However, our supreme court has recognized that declining
to ask for such an instruction may not always constitute deficient
performance, even when there are more criminal acts alleged than
there are counts charged. See State v. Paule, 2024 UT 2, ¶¶ 68, 78,
554 P.3d 844. For instance, where the State, through “prosecutorial
election,” makes explicitly clear which act forms the basis of the
specific charge during the presentation of its case, it may be
reasonable for a defense attorney to rely on the State’s clear
identification and forgo a request for a specific unanimity
instruction. See id. For example, in Paule, the State sought a
conviction for one count of obstruction of justice, yet during the

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State v. Jimenez

trial it presented evidence of three separate acts that could have
satisfied the elements of obstruction. Id. ¶ 69. But in that case, the
State clearly identified the factual basis for the obstruction charge
throughout trial—during its opening statement, again at the
midway point of trial when contesting the defendant’s motion for
a directed verdict, and again during closing argument. Id. ¶ 74; see
also id. ¶ 14 (quoting the prosecutor’s statement, during closing,
that the “obstruction of justice” count was for “when [Paule]
threw the gun over the balcony”). At each juncture, the prosecutor
expressly centered the obstruction of justice charge on the
defendant’s act of throwing a shotgun off the balcony of his
residence, and “at no point during trial did the prosecutor ever
argue that the obstruction count was for any act other than
throwing the shotgun off the balcony.” Id. ¶¶ 74–75 (cleaned up).
Indeed, the other potentially obstructive acts were discussed only
in connection with a separate (murder) charge in that case, not the
obstruction charge. Id. ¶ 74. As a result, our supreme court held
that defense “counsel’s decision to rely on the State’s clear
identification of the shotgun evidence as the factual basis for the
obstruction charge,” and on that basis not to request a specific
unanimity instruction, did not constitute deficient performance.
Id. ¶ 68. The court offered its view that, under those
circumstances, counsel’s decision was reasonable because “if
counsel had requested a more specific instruction, then the State’s
options for conviction of obstruction of justice could have
expanded” to include the other acts as well. Id. ¶¶ 68, 76.

¶44 But for such a strategy to be reasonable, the State’s
“prosecutorial election” must be “clear.” Id. ¶¶ 68, 78, 82–83. And
in this case, the State’s efforts to clarify things were insufficient.

¶45 When the trial court raised the issue of specific unanimity
with the parties before trial, the State indicated that jury
unanimity would not be a concern because, although Penny
would testify that sexual abuse “happen[ed] multiple times,”
Penny would “specify in detail” about only “one time” when

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State v. Jimenez

abuse happened. It was arguably reasonable for Counsel to rely
on this pretrial representation from the State and forgo—at least
at that juncture—a request for a specific unanimity instruction.
But the State did not follow through on its promise to pin down
the charge to one specific event; instead, the evidence and
argument it presented did not sufficiently clarify the issue.

¶46 During opening statements, the prosecutor discussed
Penny’s allegations that abuse occurred in Jimenez’s bedroom,
but did not tell the jury that the charged count was limited to that
instance. Indeed, the prosecutor stated that, over “the next couple
of years, this same sort of thing would happen multiple times,
always when [Mother] wasn’t around.” Then, in its evidentiary
presentation, the State elicited testimony from Penny in which she
offered not only specific details about abuse that she said occurred
in Jimenez’s bedroom after school but also details about abuse
that she claimed occurred in her bedroom at night and about
abuse that she said occurred while Jimenez picked lice out of her
hair. And during closing argument, while the prosecutor again
discussed specific details only about alleged abuse that occurred
in Jimenez’s bedroom, he didn’t limit his argument to that alleged
abuse. Instead, he continued to emphasize that the abuse was “a
pattern over a couple of years” that Penny “endured repeatedly,”
and he even impliedly referenced the other instances of abuse,
stating that “the part that never really changes,” no matter the
circumstances, “is that he was rubbing his erect penis on her butt.”
Crucially, at no point did the State ever indicate to the jury that it
should limit its consideration of criminal conduct to one specific
incident of alleged abuse.

¶47 On several occasions, we have considered whether the
State’s efforts to be “clear” about its “prosecutorial election” are
sufficient, and on that point we have stated that the State must do
“more” than merely “mention . . . a specific allegation supporting
a charge at some point during closing argument.” State v. Granere,
2024 UT App 1, ¶ 45, 543 P.3d 177, cert. denied, 558 P.3d 87 (Utah

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State v. Jimenez

2024). Instead, “the State must make clear, in closing argument or
elsewhere, which act went with each count.” Id. (cleaned up). In
Granere, for example, we held that the State’s efforts were
insufficient where the prosecutor referred to one particular
episode during closing argument but didn’t “clearly identify for
the jury that that specific circumstance formed the basis for the
charge” and didn’t “tell the jury that it was limited to considering
only [one] specific allegation of rape.” Id. ¶¶ 45–46 (cleaned up).

¶48 Similarly, in State v. Macleod, 2024 UT App 32, 546 P.3d 366,
cert. denied, 558 P.3d 87 (Utah 2024), we concluded that the State
had not sufficiently clarified the issue because its closing
argument “fell short of sufficiently and clearly instructing the jury
regarding which act corresponded with” the charged crime. Id.
¶ 66. In that case, the State had charged the defendant with two
counts of forcible sexual abuse, one for “touching of the breast”
and the other for illegal “touching of the buttocks,” both of which
were alleged to have occurred on a basketball court. Id. ¶¶ 21, 23,
62 (cleaned up). Yet the jury heard testimony that the defendant
touched the complainant’s breasts and buttocks without her
consent not just on a basketball court but also at a grocery store
(breasts and buttocks) and in the complainant’s bedroom
(buttocks). Id. During closing argument, the prosecutor
referenced the two counts of forcible sexual abuse as follows:
“Count 3 and 4 are the same elements but for different actions. . . .
[The complainant] and [another witness] described the defendant
repeatedly touching and groping [the complainant’s] bottom,
specifically her breasts and buttocks. He did so [without consent]
by being told to stop in the store and then being told to stop again
while playing basketball.” Id. ¶ 67 (cleaned up). Given the
prosecutor’s reference to the instance at “the store,” we concluded
that the State had failed to sufficiently clarify which acts went
with the charged counts. Id. ¶ 69 (cleaned up). We explained that
“[a]bsent the mention of ‘the store’ during that portion of closing
argument, the statement likely would have mitigated any

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State v. Jimenez

prejudice resulting from [c]ounsel’s deficient performance.” Id.
Yet, “the somewhat confusing reference to ‘the store’ muddied the
waters, rendering the statement insufficiently clear to ‘cure’ the
prejudice resulting from [c]ounsel’s failure to request an adequate
unanimity instruction.” Id.

¶49 And in State v. Garcia-Lorenzo, 2022 UT App 101, 517 P.3d
424, we reached a similar conclusion. In that case, the complainant
testified that the defendant had sodomized her on two occasions:
in “the old house” prior to New Year’s Eve, and in a new house
on New Year’s Eve. Id. ¶ 29. Yet the State charged the defendant
with only one count of sodomy. Id. ¶ 11. No specific unanimity
instruction was given. Id. ¶ 17. During closing argument, the
prosecutor argued that, as to the sodomy charge, the State was
“asking [the jury] to find the defendant guilty because of [the
complainant’s] statement that after” New Year’s Eve, “she said
that this happened before . . . when they lived in the other house.”
Id. ¶ 52 (cleaned up). We rejected the State’s assertion that this
argument sufficiently clarified the issue: “As opposed to clearly
identifying which act formed the basis for the charge, this
statement made reference to both asserted acts of sodomy.” Id.
(cleaned up). And we noted that “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.” Id. On these facts, we concluded
that “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.” Id. ¶ 53.

¶50 As in these cited cases, the State’s presentation at trial in
this case did not—or, at least, not clearly enough—identify for the
jury which act formed the basis for its single charge of aggravated
sexual abuse of a child. To be sure, it spent more time discussing
abuse that allegedly occurred in Jimenez’s bedroom than it spent
on the other incidents Penny described. But it continued to

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State v. Jimenez

emphasize that abuse occurred “repeatedly,” and during its
rebuttal closing argument it indirectly referenced the other
alleged incidents, stating that “the part that never really changes,”
no matter the circumstances, “is that he was rubbing his erect
penis on her butt.” In summary, the State did not ever “expressly
tell the jury that it could consider only” abuse that Penny said
occurred in Jimenez’s bedroom as the basis “for the aggravated
sexual abuse of a child charge.” See Granere, 2024 UT App 1, ¶ 46.

¶51 Thus, we conclude that the State’s efforts to provide clarity
during its presentation at trial were insufficient. In other words,
the State’s “prosecutorial election” was never “clear.” See Paule,
2024 UT 2, ¶¶ 68, 78, 82–83. And for that reason, while it might
have been reasonable for Counsel to rely on the State’s assurances
at the pretrial stage, any reliance Counsel might have placed on
the promise of a “prosecutorial election” became unreasonable
after the State never followed through on that promise.

¶52 Nevertheless, the State defends Counsel’s decision not to
request a specific unanimity instruction, asserting that Jimenez’s
“defense strategy here was all or nothing” because it turned on
Penny having a false memory or a motive to fabricate all the
allegations. Thus, according to the State, it was a reasonable
strategy “to ask the jury to reject Penny’s testimony in its entirety”
rather than “ask the jury to parse Penny’s testimony about each
molestation for the one or more it unanimously agreed occurred.”
As an initial matter, we do not necessarily agree with the State’s
characterization of Counsel’s argument as “all-or-nothing.” To be
sure, Counsel made arguments about Penny’s memory and
credibility that applied to all the incidents (rather than just some),
but the State points to no place in the record where Counsel told
the jury that it had to believe all of Penny’s claims or none of them.

¶53 Requesting a specific unanimity instruction—at least
absent a clear prosecutorial election—is not at odds with this sort
of strategy. Cf. Alires, 2019 UT App 206, ¶ 25 (rejecting the State’s

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State v. Jimenez

“theory that a reasonable defense attorney could have concluded
that ‘further clarification would have increased the likelihood of
conviction’”); Baugh, 2024 UT 33, ¶ 40 (holding that “there was no
strategic advantage to not requesting more specific unanimity
instructions” where “[d]oing so would not have directed the jury
to any especially damaging evidence”). In the absence of a clear
election from the State, the jury is entitled to—and likely will—
examine and consider all of the supported instances of abuse in
considering whether to convict. Allowing the jury to do so
without a specific unanimity instruction “effectively lower[s] the
State’s burden of proof.” See Baugh, 2024 UT 33, ¶ 40; accord Alires,
2019 UT App 206, ¶ 25. And this holds true even if the defense
attacks the complainant’s credibility in ways that might apply to
all the claimed incidents.

¶54 Indeed, a specific unanimity instruction often dovetails
with such a strategy; after all, a witness’s memory issues or
motive to fabricate—while perhaps applicable at some level to all
instances of alleged abuse—may be stronger or weaker for certain
instances of abuse than for others, and a specific unanimity
instruction requires the jury to focus on whether all the elements
of a crime line up with specific instances of alleged conduct
beyond a reasonable doubt. See State v. Mendoza, 2021 UT App 79,
¶ 17, 496 P.3d 275. In Mendoza, we explained that “in determining
which one of many various acts had been committed in order to
satisfy the elements of a particular crime,” a jury “might face little
difficulty in reaching a verdict.” Id. By contrast, “a jury forced to
deliberate regarding the specific details would face a steeper
climb to determine that each juror agreed on which act had
actually occurred; and consequently, the State would face a more
challenging task of persuading the jury to agree, with specificity,
on whether a particular act had been committed.” Id. Given this
reality, and regardless of whether the defense attacks the
complainant’s credibility in ways that apply to all the claimed
incidents, “counsel bears a duty to assist the defendant in reaping

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State v. Jimenez

the benefits of a jury trial and to hold the State to its full and
complete burden of proof.” Id.

¶55 These principles are applicable here. On this record, the
jury could have unanimously agreed that Jimenez committed
sexual abuse once even if the jury had splintered on the specific
instance of abuse. And as we discuss more fully under the
prejudice prong, the evidence regarding each of the instances of
abuse Penny alleged—including, among other things, Penny’s
memory and motive to fabricate—was different in important
ways, and each instance contained evidentiary weaknesses. So,
requiring the jury to parse through the allegations here with an
instruction would have served to “hold the State to its full and
complete burden of proof.” Id.

¶56 Thus, as we have done in numerous similar cases, see, e.g.,
Macleod, 2024 UT App 32, ¶¶ 25, 73; Granere, 2024 UT App 1, ¶ 38;
Garcia-Lorenzo, 2022 UT App 101, ¶ 37; Mendoza, 2021 UT App 79,
¶ 17; Alires, 2019 UT App 206, ¶ 25, we conclude that Counsel’s
performance “fell below an objective standard of reasonableness,”
Scott, 2020 UT 13, ¶ 31 (cleaned up). Under the circumstances
presented here, a reasonable attorney would have requested a
specific unanimity instruction at some point after it became clear
that the State had failed to fulfill its promise to provide clarity.
Accordingly, Jimenez has carried his burden of demonstrating
that Counsel rendered deficient performance.

2

¶57 Having concluded that Counsel’s failure to request a
specific unanimity instruction constituted deficient performance,
the final question is whether that deficiency prejudiced Jimenez.

¶58 “Prejudice exists when there is a reasonable probability
that the case would have had a different outcome had trial counsel
not performed deficiently.” State v. Whytock, 2020 UT App 107,

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State v. Jimenez

¶ 28, 469 P.3d 1150. “[A] reasonable probability is a probability
sufficient to undermine confidence in the outcome” of the
proceeding. Strickland v. Washington, 466 U.S. 668, 694 (1984). 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 been different absent the
errors.” State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 (cleaned up).

¶59 “An attorney’s failure to seek a specific jury unanimity
instruction is not always prejudicial; indeed, we have rejected
ineffective assistance claims on prejudice grounds in two types of
jury unanimity cases.” Garcia-Lorenzo, 2022 UT App 101, ¶ 49. The
first is when “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.” Id. For the reasons
discussed already, this circumstance is not applicable here
because the State did not sufficiently clarify the issue during its
trial presentation.

¶60 The second type of case where the failure to request an
instruction may not be prejudicial is when “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.” Id. ¶ 50. For example, in State v.
Mottaghian, 2022 UT App 8, 504 P.3d 773, the defendant conceded
that he had committed a number of sexual acts but contested the
consent element. Id. ¶ 66. There, we explained 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.” Id. We held that prejudice had not been

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State v. Jimenez

established because, on the facts of that case, there were “enough
uncontested . . . touches to satisfy all of the charged counts, and
there [was] no meaningful consent-related basis to distinguish
between those touches.” Id.

¶61 Similarly, in State v. Case, 2020 UT App 81, 467 P.3d 893, we
concluded that the defendant was not prejudiced by the absence
of a specific unanimity instruction because the acts in question
were similar and there was no principled basis to distinguish
between them from an evidentiary standpoint. Id. ¶ 26. The
defendant there was charged with seven counts of possession of
child pornography but had stipulated that his laptop contained
thirty-seven images of child pornography. Id. “[T]he jury was left
with the task to identify and unanimously agree on seven specific
acts of sexual exploitation of a minor from among the thirty-seven
images that were identified as child pornography.” Id. ¶ 22. On
those facts, we held that the absence of a specific unanimity
instruction was not prejudicial because “there [was] 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.” Id.

¶62 The facts of this case are materially different from those
presented in Mottaghian and Case. Here, Jimenez denied Penny’s
allegations in full, and in our view the evidence supports
meaningful distinctions between the three different instances of
abuse Penny described; on this record, it appears entirely possible
for jurors to have believed that Jimenez abused Penny under some
of the described circumstances but not others.

¶63 Penny described the abuse in Jimenez’s bedroom as having
happened over “one or two hours,” yet there was testimony from
Mother that Grandmother was at the house after school “[a]lmost
every day” to help take care of the kids and that Penny and Lucy
were almost always together. Penny’s description of nighttime
abuse was fairly vague, and her testimony on this point at least

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State v. Jimenez

implied that she wondered whether that alleged abuse had
merely been a dream. And Penny’s testimony regarding the lice
incident was quite brief and unaccompanied by significant
corroborating details. Thus, the three specific instances of alleged
abuse were materially different from each other—they occurred
on different days and in different locations under different
circumstances—and each instance came with different potential
evidentiary infirmities. We agree with Jimenez that there is a
“meaningful and relevant basis upon which to distinguish the
various acts underlying the charges,” see Mottaghian, 2022 UT App
8, ¶ 66, and that jurors could reasonably have come to believe,
after hearing the evidence in total, that some but not all of the
instances actually took place.

¶64 Under these circumstances, we think there is a reasonable
likelihood of a different result had Counsel requested and
obtained a specific unanimity instruction. Accordingly, Jimenez
has carried his burden of demonstrating that he was prejudiced
by Counsel’s performance.

CONCLUSION

¶65 Jimenez was charged with a single count of aggravated
sexual abuse of a child, but the State put on evidence of three
different acts that could have satisfied the charge. Jurors should
have been instructed that they needed to unanimously agree as to
the specific act supporting the single count; indeed, under well-
established case law and on the facts of this case, Counsel’s failure
to request such an instruction constituted deficient performance
that prejudiced Jimenez. On that basis, we reverse Jimenez’s
conviction and remand the case for further proceedings, including
a new trial.

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