State v. Wahlstrom

2026 UT App 143
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ARK A LLAN W AHLSTROM ,
Appellant.
Opinion
No. 20220988-CA
Filed September 17, 2026
Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 211702082
Scott L Wiggins, Attorney for Appellant
Derek E. Brown and Karen A. Klucznik,
Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
LUTHY, Judge:
¶1 	Mark 	Allan 	Wahlstrom 	was 	arrested 	when
officers found him intoxicated and sitting in the driver seat of
a truck parked in the mountains with the key in the ignition.
At trial, 	his 	counsel 	(Counsel) 	argued 	that 	Wahlstrom 	had
not been in actual physical control of the truck, as required for
the driving-under-the-influence 	crime 	(DUI) 	with 	which 	he
was charged. After deliberating for some time, the jury did
not reach a consensus on DUI, and the court gave the jury an

State v. Wahlstrom
20220988-CA 	2 	2026 UT App 143
Allen charge1 to 	encourage 	it 	to 	reach 	a 	verdict. 	The 	jury
subsequently convicted Wahlstrom of DUI, among other things.
Wahlstrom appeals, 	arguing 	that 	Counsel 	performed
deficiently by failing to object to the Allen charge because it was
coercive. We agree that the Allen charge was coercive and
that Counsel’s 	failure 	to 	object 	constituted 	ineffective
assistance. We 	therefore 	reverse 	Wahlstrom’s 	conviction 	for
DUI and 	remand 	this 	matter 	for 	a 	new 	trial 	or 	other
proceedings as may be appropriate on that charge. Wahlstrom
does not challenge his other convictions, and we do not disturb
them.
¶2 	Wahlstrom also asserts that the trial court erred by not
correcting an alleged error in his presentence investigation report
(PSI). Because Wahlstrom’s other convictions stand, our decision
on the DUI charge does not render this issue moot, and the State
concedes error on this issue. Thus, we remand this matter for the
additional 	limited 	purpose 	of 	the 	trial 	court 	appropriately
addressing the apparent error in the PSI.
1. In Allen v. United States, 164 U.S. 492 (1896), the United States
Supreme 	Court 	approved 	the 	use 	of 	supplemental 	jury
instructions to help a deadlocked jury reach a unanimous verdict.
See id. at 501–02.

State v. Wahlstrom
20220988-CA 	3 	2026 UT App 143
BACKGROUND2
Wahlstrom and a Friend Drive into the Mountains
¶3 	One day in October 2021, Wahlstrom and an “old friend”—
Sadie3—agreed to “hang out.” Sadie “was going through a
breakup” and “needed a friend . . . to talk to,” so the two headed
into 	the 	mountains 	in 	Wahlstrom’s 	work 	truck. 	The 	pair
eventually made it “pretty far up” the mountain. At some point
while Sadie and Wahlstrom were together, three other things
occurred: Sadie began drinking alcohol, Wahlstrom “pulled out a
bottle of vodka from the back and started drinking it,” and the
pair 	parked 	the 	truck.4 	After 	they 	got 	into 	an 	argument,
Wahlstrom pushed Sadie out of the truck. Sadie walked down one
portion of the mountain, received a ride down another portion
from passersby, and then called the police.
2. “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. Jimenez, 2025 UT App 76, n.1, 571 P.3d 834
(cleaned up), cert. denied, 581 P.3d 560 (Utah 2025). “Recognizing,
however, that our reversal of [Wahlstrom’s DUI] conviction
causes the presumption of innocence to reattach [as to that
charge], we apply the foregoing standard somewhat guardedly
here. Specifically, concerning the facts surrounding [DUI], we
identify the evidence that supports the verdict, while refraining
from characterizing the alleged criminal conduct as established
fact.” See id.
3. A pseudonym.
4. The timeline of these events was disputed; we recount Sadie’s
and Wahlstrom’s versions of the events in more detail below.

State v. Wahlstrom
20220988-CA 	4 	2026 UT App 143
Officers Speak with Sadie and Find and Arrest Wahlstrom
¶4 	Officers came to Sadie’s location and spoke with her. She
told 	them 	she 	was 	intoxicated, 	and 	they 	noticed 	signs 	of
intoxication in her appearance and behavior. She related that she
had come up the mountain with a friend, that they “did . . . some
shots,” and that “at one point, there [was] a verbal altercation.”
She also stated that “she was not the one driving, . . . her friend
was” and that after pushing her from the vehicle, he “had
continued up the mountain.” She gave officers a description of her
friend’s work truck, though she was reluctant to provide his
name.
¶5 	When asked about the drinking the pair had done, Sadie
“point[ed] up to the mountain” and said, “We just drank up
there.” After officers explained the risks associated with her
friend driving down the mountain while intoxicated and asked if
her friend “is DUI,” Sadie responded, “I can’t say that he is.” She
added, “He wasn’t drinking and driving today. We started
drinking up on the mountain.”
¶6 	One 	officer 	(Sergeant) 	gave 	Sadie 	a 	ride 	down 	the
remainder of the mountain, while another (Deputy) waited to see
if the vehicle Sadie had described came down the mountain.
During the drive, Sadie provided Wahlstrom’s name to Sergeant,
who passed it on to Deputy. Deputy performed a records check
and discovered that Wahlstrom had a suspended driver license
and was required to use an ignition interlock device. Once
Sergeant returned from dropping Sadie off, he and Deputy
headed up the mountain to try to locate Wahlstrom. They split up
at a fork, and Deputy eventually came upon the described truck,
which was located about eight miles from where officers had met
with Sadie.

State v. Wahlstrom
20220988-CA 	5 	2026 UT App 143
¶7 	The truck was “pulled to the side of the road facing south
with its lights on.” Deputy parked behind the truck, turned on his
overhead white lights, and approached the truck on foot. “The
window was rolled down on the driver’s side, and [Deputy] was
able to identify, by the picture that was on the driver’s record,
that” Wahlstrom was the person sitting in the driver seat.
Wahlstrom was awake, “[a]ppeared to be listening to music,” and
was looking at his phone. The truck’s engine was not running.
Deputy 	asked 	Wahlstrom 	to 	step 	out 	of 	the 	vehicle, 	but
Wahlstrom did not immediately comply, so Deputy “opened the
door to further persuade him out of the vehicle.” Upon opening
the door, Deputy noted that “[t]he keys were in the ignition . . .
and the door chime was going off.” Deputy saw no interlock
device in the truck. He “could smell the heavy odor of alcohol . . .
emitting [from] the vehicle.” Wahlstrom turned the key to the off
position and then put the key “to his right side either on the seat
or on the center console.”
¶8 	Wahlstrom got out of the truck, and Deputy asked him to
perform field sobriety tests, but he refused. As Deputy moved
Wahlstrom to the front of Deputy’s vehicle, Deputy noticed that
Wahlstrom “had kind of glazed, glossy eyes” that were “kind of
[drooped] down low,” as well as slurred speech, and that while
he walked he was taking “swaying, stuttered steps” and appeared
unable “to maintain his balance.” Deputy “could smell [alcohol]
emitting 	from 	his 	person 	and 	from 	his 	breath.” 	Deputy
handcuffed Wahlstrom and informed him that he was under
arrest. Wahlstrom argued that he was just “sitting in the truck . . .
while . . . waiting for a ride,” though he would not provide the
name of the driver he was waiting for. He said the key was “in the
car” but “not in the ignition.” He also said that Sadie was the one
who had driven the truck up the mountain. Deputy placed
Wahlstrom inside Deputy’s vehicle and transported him to jail,
where Deputy obtained a warrant for a blood draw. Wahlstrom’s
blood alcohol concentration (BAC) was .17.

State v. Wahlstrom
20220988-CA 	6 	2026 UT App 143
¶9 	Sergeant performed an inventory of Wahlstrom’s truck
and found, among other things, a “large” bottle of vodka “[i]n the
back seat, underneath the passenger seat in the rear.” The bottle
was about half empty.
Opening Statements at Trial Focus on Actual Physical Control
¶10 	Wahlstrom was charged with DUI, operating or being in
actual physical control of a vehicle without an ignition interlock
device, driving on a suspended license (alcohol-related), and
having an open container of alcohol in a vehicle.
¶11 	The case proceeded to a jury trial, which was scheduled for
two days. From the attorneys’ opening statements, it was clear
that the chief issue would be whether Wahlstrom had been in
actual physical control of the vehicle. Specifically, the State told
the jury:
What you’re not going to hear today is some sort of
driving pattern. . . . What you are going to hear is
that [Wahlstrom] was in actual physical control of
the 	vehicle. 	. 	. 	. 	DUI, 	it’s 	a 	unique 	law. 	It’s
preventative 	and 	reactionary, 	but 	this 	is 	a
preventative portion of it[,] [t]hat if you are in actual
physical 	control 	of 	the 	vehicle 	and 	you 	are
intoxicated, you are DUI.
¶12 	Similarly, Counsel said that the defense was “not disputing
that [Wahlstrom] was drunk” but that the jury was “going to have
to decide . . . actual physical control.” He asserted that the
evidence would show that “[n]obody drank until they got up on
the mountain” and that the “truck [was] parked in the mountains”
for several hours while “Wahlstrom had the opportunity to drive
his truck down” but did not do so. Counsel informed the jury that
a witness—a different friend of Wahlstrom’s (Friend)—would
“testify that [Wahlstrom] had called him and asked him to come

State v. Wahlstrom
20220988-CA 	7 	2026 UT App 143
get [Wahlstrom]” and that Friend confirmed he would pick
Wahlstrom up after 	getting off work and would 	bring his
girlfriend to drive Wahlstrom’s truck down the mountain. Then
Counsel stated, “[T]hat’s the sole issue here . . . . He was drunk,
sitting in the truck, but he wasn’t going to drive anywhere. That’s
the defense position.”
The Jury Hears Testimony and Evidentiary Stipulations
¶13 	The State called Sadie as a witness, and she testified
that Wahlstrom picked her up from her house in his work truck
so the pair could hang out. She said she “wanted a drink” so—
before heading to the mountains—Wahlstrom drove her to a
store, where she purchased “a small bottle” of what she later
recollected to have been whiskey—“the cheapest one [she] could
find.” She said she began drinking this while Wahlstrom drove
and that at no point did she share any with Wahlstrom. Instead,
she testified, Wahlstrom pulled out the vodka and began drinking
it while the pair “were on [their] way up the mountain.” She
continued, “I got really frustrated, and I didn’t understand why
he was drinking and driving. I didn’t know that he was going to
be drinking and driving. That’s why I got upset. And I asked him
not to drink . . . .” When asked how he responded to that request,
Sadie replied, “He said, ‘Don’t worry about it. I’m fine.’” She
testified that she told him, “I don’t think that it’s a good idea for
[you] to be doing that, especially [because] it’s dangerous, . . .
we’re in the mountains, and I don’t want to be put in harm’s way.”
She said the two argued and then “[h]e pushed [her] out of the
truck.”
¶14 	On 	cross-examination, 	Counsel 	suggested 	that 	Sadie
had driven her car to Wahlstrom’s house and then had been
the one to drive the truck. Sadie countered, “I never drove his
truck.” 	She 	reiterated 	that 	she 	began 	drinking 	before
Wahlstrom did—and before the pair got to the mountain—and
that he began drinking “once [they] got up to the mountain,”

State v. Wahlstrom
20220988-CA 	8 	2026 UT App 143
“while [he was] driving the vehicle” “up the dirt road.” Counsel
asked, “But at the time when you talked to [Deputy], you said,
‘We 	didn’t 	start 	drinking 	until 	we 	got 	up 	on 	top 	of 	the
mountain’?” Sadie replied, “I—I’m sorry if I—I think I was
drinking before we got up there.” Sadie also stated that the pair
“were parked for a little bit and talking” before Wahlstrom
“pushed [her] out of the truck.”
¶15 	The State called Deputy and Sergeant as witnesses, and
they testified in accordance with the facts recounted above.
Additionally, Deputy estimated that an hour and a half to two
hours passed between when Sergeant drove Sadie down the
mountain and when Deputy found Wahlstrom. Sergeant testified
that he had searched Sadie before giving her a ride and had not
located a bottle of whiskey on her. The State presented bodycam
footage of Deputy’s interactions with Wahlstrom and Sergeant’s
inventory of the truck.
¶16 	After the State presented its evidence, the court took a
recess, during which the attorneys decided that the presentation
of evidence could be completed that day through evidentiary
stipulations. When the jury returned, the court announced the
parties’ stipulation that Friend would have testified that he had a
long friendship with Wahlstrom; that Wahlstrom called him,
asking for a ride down the mountain; and that he told Wahlstrom
he would be there around 8:00 p.m., after he got off work. The
parties 	also 	stipulated 	that 	at 	the 	time 	of 	these 	events,
Wahlstrom’s license had been suspended for an alcohol-related
offense and Wahlstrom was an ignition interlock restricted driver.
Finally, the parties stipulated that Wahlstrom’s BAC was .17.
After the court informed the jury of the stipulations, both sides
rested.

State v. Wahlstrom
20220988-CA 	9 	2026 UT App 143
Jury Instructions Define DUI and Actual Physical Control
¶17 	The 	court 	then 	read 	the 	closing 	jury 	instructions.
Instruction 49 provided the elements of DUI as follows:
I. 	The defendant, [Wahlstrom], either operated a
vehicle, or was in actual physical control of a
vehicle;
AND
II. The defendant, [Wahlstrom]:
a. 	Had sufficient alcohol in his body that a
subsequent chemical test showed that the
defendant had a blood or breath alcohol
concentration of .05 grams or greater at the
time of the test[.]
¶18 	Instruction 53 read, in relevant part:
2. 	In determining actual physical control under the
totality of the circumstances, no single factor is
dispositive. Some factors may include:
a. 	Whether the person was asleep or
awake when discovered
b. 	The position of the automobile
c. 	Whether the automobile’s motor was
running
d. 	Whether the person[] was positioned
in the driver’s seat of the vehicle
e. 	Whether the person was the vehicle’s
sole occupant
f. 	Whether the person had possession of
the ignition key

State v. Wahlstrom
20220988-CA 	10 	2026 UT App 143
g. 	The person’s apparent ability to start
and move the vehicle
h. 	How the car got to where it was
found; and
i. 	Whether the person drove it there.
3. 	A person need not actually move, or attempt to
move, a vehicle in order to have actual physical
control; 	the 	person 	only 	needs 	to 	have 	the
apparent ability to start and move the vehicle.
Closing Arguments Focus on Actual Physical Control
¶19 	The 	parties 	then 	made 	their 	closing 	arguments. 	The
prosecutor began by thanking the jurors for their patience and
saying, “I apologize. We’re going to keep you a little late. Hope
that you will forgive us because we’re giving you tomorrow off.”
The prosecutor then walked through the elements of each charge
and the evidence that supported each element. Based on the
stipulated and undisputed facts, the prosecutor asserted that all
that was really at issue was whether Wahlstrom had actual
physical control of the truck, and the prosecutor argued that
Wahlstrom did because “[l]iterally nothing” was stopping him
from turning on the truck.
¶20 	When it was Counsel’s turn, he also acknowledged that it
had “been a long day.” He said, “I’m going to try to move through
this pretty quick so we can get the day over with.” Counsel
conceded that Wahlstrom was guilty of the open container charge.
Beyond that, he argued that Sadie was not credible based on her
intoxication and the differences between her story on the day of
the 	events 	and 	her 	testimony 	in 	court. 	Accordingly, 	he
encouraged the jury to accept Wahlstrom’s statement that Sadie
was the one who drove up the mountain and to find that
Wahlstrom 	did 	not 	drink 	until 	they 	were 	parked 	in 	the
mountains. Regarding the DUI charge, Counsel argued:

State v. Wahlstrom
20220988-CA 	11 	2026 UT App 143
When 	you 	look 	at 	the 	totality 	of
circumstances in this case, I think it cuts against that
. . . Wahlstrom was in actual physical control of the
vehicle.
Think about [it.] [H]e’s sitting in that truck.
And I think [Deputy] said about one and a half
hours—from the time [the officers] made contact
[with Sadie], [took] her down and then [went] up,
there’s one and a half hours. He could have dr[iven]
home. He didn’t. There’s an eight-mile difference.
He could have dr[iven] down the mountain. He
didn’t.
. . . .
The State stipulated to the testimony that
[Friend] was his buddy that had been called and
was on his way to go up there and get him. And so
he was waiting in his car for a ride to come get him,
so he didn’t have to drive home.
The Jury Poses Several Questions to the Court
¶21 	The court excused the jury to deliberate at 6:37 p.m.,
saying, “You’re going to go back to the jury room. You are to
deliberate and discuss matters . . . and reach a verdict. Do
whatever you need to to accomplish that.”
¶22 	At 7:59 p.m., the court and attorneys held a telephone
conference about two questions the jury had submitted: “When
were rights read to the defendant?” and “Is that an issue to
consider?” After this conference, the court responded to the jury,
“[T]hat is not an issue to consider. The evidence and instructions
as provided are all you are to consider.”

State v. Wahlstrom
20220988-CA 	12 	2026 UT App 143
¶23 	At 8:43 p.m., the attorneys met in chambers with the court
regarding another message from the jury. This one read, “If the
instructions stipulate ‘physical control’ on Count 1, why is there
no reference to it on the actual verdict? But are we required to use
the instructions to make our argument?” On the back of the page,
the jury provided further explanation, saying, “Some of us are not
comfortable voting on an inconsistency of the language in the
instructions and the verdict form.” Based on the jury’s questions,
the attorneys and court realized that the verdict form for the DUI
charge inadvertently contained a recitation of the elements of
DUI, while the verdict forms for the other charges contained no
such recitations, and they agreed to alter the verdict form for the
DUI charge to remove the recitation of the elements.5 During this
discussion, the bailiff said, referring to the verdict form for the
DUI charge, “I only need that one because they’ve already come
to an agreement on the other two and signed that.”6 The court sent
the following response to the jury: “The verdict form for count one
has been revised. There is no stipulation regarding the elements[.]
But they are not in the verdict form. The elements are only noted
in [I]nstruction 49.”
¶24 	The revised verdict form for count one made no mention
of actual physical control, saying only:
5. The record does not contain a copy of this page of the verdict
form as it appeared when first given to the jury. We therefore
cannot say whether “actual physical control” was identified as
one of the elements provided on the verdict form.
6. 	Given 	that 	Wahlstrom 	had 	conceded 	guilt 	on 	the 	open
container charge, the reference to “the other two” was to the
charges of operating or being in actual physical control of a
vehicle without an ignition interlock device and driving on a
suspended license (alcohol-related).

State v. Wahlstrom
20220988-CA 	13 	2026 UT App 143
We, the Jurors impaneled in the above case, find
[Wahlstrom] . . .
____ NOT GUILTY of DRIVING UNDER THE
INFLUENCE OF ALCOHOL
OR
____ 	GUILTY 	of 	DRIVING 	UNDER 	THE
INFLUENCE OF ALCOHOL.
In contrast, the verdict form for count two mentioned actual
physical control, referring to the charge as “OPERATING OR
BEING IN ACTUAL PHYSICAL CONTROL OF A VEHICLE
WITHOUT AN IGNITION INTERLOCK SYSTEM.”
¶25 	At 	9:20 	p.m., 	the 	court 	and 	attorneys 	again 	met 	in
chambers regarding 	two 	new 	jury 	questions: 	“[I]s 	actual
physical control considered driving?” and “Should we consider
49(I) in jury instructions even though it doesn’t show on the
verdict form?”7 The court’s response to the first question was,
“This is not a driving case. For actual physical control see
[I]nstruction 53 for the definition of ‘actual physical control.’” Its
response 	to 	the 	second 	question 	was, 	“The 	verdict 	form
represents your conclusions after considering [I]nstruction 49 in
its totality.”
7. We believe that the jury’s apparent confusion as to whether the
DUI charge could be satisfied by a finding that Wahlstrom was in
“actual physical control” of the vehicle relates to the absence of
that phrase in the name of the DUI charge as given on the verdict
form and the concurrent inclusion of that phrase in the name of
the interlock charge as given on the verdict form.

State v. Wahlstrom
20220988-CA 	14 	2026 UT App 143
The Court Gives the Jury an Allen Charge
¶26 	At 10:10 p.m., the attorneys again met in chambers, and the
court 	said 	on 	the 	record, 	“[The 	attorneys] 	have 	been 	in
consultation with the [c]ourt after we were advised by [the bailiff]
that the jury had not come to a total consensus as to how to move
forward. Counsel[8] undertook some investigation and located a
[case] . . . [t]hat contained an appropriate Allen charge, which we
have now reduced to writing, and we’ll deliver it to the jury, and
see if this helps them in that regard.” The prosecutor indicated
that the charge was taken from State v. Dalton, 2014 UT App 68,
331 P.3d 1110. But the court provided the jury with only a portion
of the Allen charge that was given in Dalton. The charge that the
court used here stated, in full:
If a larger number of your panel are for conviction,
a dissenting juror should consider whether a doubt
in his or her own mind is a reasonable one if it makes
no impression on the minds of so many other jurors
who are equally honest and intelligent and have
heard the same evidence and taken the same oath.
On the other hand, if a larger number of your panel
are 	for 	an 	acquittal, 	the 	minority 	should 	ask
themselves whether they ought to reasonably doubt
seriously the correctness of judgment which is not
concurred in by most of those with whom they are
associated, and distrust the weight and sufficiency
8. It is not clear whether by “counsel” the court was referring to
the prosecutor, Counsel, or both. However, because (as we soon
recount) the prosecutor was the one who identified State v. Dalton,
2014 UT App 68, 331 P.3d 1110, as the case from which the
language for the proposed Allen charge came, it is possible that
the prosecutor was the “counsel” the court was referring to.
Regardless of whether Counsel also had some role in preparing
the Allen charge used here, he did not object to it.

State v. Wahlstrom
20220988-CA 	15 	2026 UT App 143
of that evidence which fails to carry conviction to
the minds of their fellow jurors.
¶27 	At 10:21 p.m., the jury returned with a verdict, finding
Wahlstrom guilty on all charges.
The Court Fails to Resolve an Alleged Inaccuracy in the PSI at
Sentencing
¶28 	At sentencing, Counsel informed the trial court of a
possible 	error 	in 	Wahlstrom’s 	PSI. 	Counsel 	highlighted 	an
incident listed among Wahlstrom’s prior criminal history that
Wahlstrom did not recall and “did not think [had] happened.”
The court responded, “All right,” but it did not address the matter
further before sentencing Wahlstrom.
ISSUES AND STANDARDS OF REVIEW
¶29 	Wahlstrom now appeals, arguing first that he received
ineffective assistance of counsel when Counsel failed to object to
the Allen charge, which Wahlstrom claims was coercive. “When a
claim of ineffective assistance of counsel is raised for the first time
on appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Craft, 2017 UT
App 87, ¶ 15, 397 P.3d 889 (cleaned up).
¶30 	Wahlstrom also asserts that the trial court erred in failing
“to properly resolve the claimed inaccuracy contained in” his PSI.
“Whether the trial court properly complied with a legal duty to
resolve on the record the accuracy of contested information in
sentencing reports is a question of law that we review for
correctness.” State v. Maroney, 2004 UT App 206, ¶ 23, 94 P.3d 295
(cleaned up).

State v. Wahlstrom
20220988-CA 	16 	2026 UT App 143
ANALYSIS
I. Ineffective Assistance of Counsel
¶31 	Wahlstrom 	asserts 	that 	Counsel 	provided 	ineffective
assistance by failing to object to a coercive Allen charge. We first
consider 	whether 	the 	Allen 	charge 	was, 	in 	fact, 	coercive.
Concluding that it was, we then consider whether Counsel
provided ineffective assistance by failing to object to it, ultimately
determining that he did.
A. 	Whether the Allen Charge Was Coercive
¶32 	Under both federal and Utah law, courts are permitted,
after learning that jurors are struggling to reach a unanimous
decision, to provide an Allen charge, which “impress[es] upon
them the importance of the case, urge[s] them to come to
agreement, and send[s] them back for further deliberation.”
Lowenfield v. Phelps, 484 U.S. 231, 236 (1988) (cleaned up); see also
State v. Lactod, 761 P.2d 23, 30 (Utah Ct. App. 1988) (“We, likewise,
uphold the non-coercive use of Allen charges because we believe
such charges to be a reasonable and proper exercise of the court’s
power to guide the jury to a fair and impartial verdict.”). “In
determining whether a particular Allen instruction is coercive, we
consider [1] whether the language of the supplemental charge can
properly be said to be coercive per se, and [2] whether it is
coercive under the specific circumstances of the case.” State v.
Dalton, 2014 UT App 68, ¶ 47, 331 P.3d 1110 (cleaned up). We take
up each inquiry in turn.
1. 	The Allen Charge Was Coercive Per Se
¶33 	When it comes to Allen charges, we have previously
“express[ed] our preference that the ABA [model] instruction be
utilized by Utah trial judges.” State v. Harry, 2008 UT App 224,
¶ 25, 189 P.3d 98. This instruction directs, among other things,

State v. Wahlstrom
20220988-CA 	17 	2026 UT App 143
“that jurors have a duty to consult with one another and to
deliberate with a view to reaching an agreement, if it can be done
without violence to individual judgment”; “that in the course of
deliberations, a juror should not hesitate to reexamine his or her
own views and change an opinion if the juror is convinced it is
erroneous”; and “that no juror should surrender his or her honest
belief as to the weight or effect of the evidence solely because of
the opinion of the other jurors, or for the mere purpose of
returning 	a 	verdict.” 	ABA 	Standards 	for 	Criminal 	Justice
Discovery & Trial by Jury § 15–5.4(a)(2), (4)–(5) (3d ed. 1996),
reproduced in Lactod, 761 P.2d at 30 n.3. In State v. Harry, 2008 UT
App 224, 189 P.3d 98, “we agree[d] that the ABA version is an
even-handed 	approach 	designed 	to 	foster 	productive
deliberations without 	putting 	undue 	pressure 	on 	dissenting
jurors,” and we declared that “the inherent danger of coercion
resulting from a supplemental instruction is dissipated, if not lost,
if such instruction conforms to the ABA standards.” Id. ¶ 25
(cleaned up).
¶34 	Nonetheless, 	“[w]e 	have 	[also] 	held 	that 	an 	Allen
instruction need not be strictly confined to the ABA model or to
the precise language in Harry in order to be deemed noncoercive.”
Dalton, 2014 UT App 68, ¶ 50. But while “there is no prescribed
ritual of words indicating whether the language of an Allen charge
is coercive[,] . . . there are certain inherently coercive ideas which
should not be included in an Allen charge.” Lactod, 761 P.2d at 30–
31 (cleaned up). These include statements such as, “You have got
to reach a decision in this case,” as well as statements that
“overemphasize the importance of an agreement, suggest that any
juror surrender his [or her] independent judgment, or say or do
anything from which the jury could possibly infer that the court
is indicating anxiety for or demanding some verdict, or subjecting
the jury to the hardships of long deliberations.” Id. at 31 (cleaned
up).

State v. Wahlstrom
20220988-CA 	18 	2026 UT App 143
¶35 	While the charge the court used here was taken verbatim
from the Allen charge given in Dalton and the Dalton court
determined that the charge in that case was not coercive per se,
that charge included additional language not utilized here. See
2014 UT App 68, ¶¶ 51–52.
¶36 	We begin with the language that the charge in this case
shared with the charge given in Dalton—namely, the language
directing minority jurors, whether for acquittal or conviction, to
reconsider the reasonableness of their positions based on the fact
that the evidence had led the majority to the other result.
Regarding this language, we said in Dalton,
This language . . . is similar to that used in Harry. . . .
Although 	we 	recognized 	that 	an 	instruction
delivered to a deadlocked jury that is directed only
to 	the 	minority 	jurors 	is 	more 	likely 	to 	be
problematic, we concluded that the instruction as a
whole was not coercive per se because it instructed
both the jurors in favor of conviction and those in
favor of acquittal to reexamine their conclusions. In
this case, we similarly conclude that [the charge]
was not coercive per se because it directed minority
or dissenting jurors to reexamine their conclusions
whether a larger number of [the] panel was in favor
of or against conviction.
Id. ¶ 53 (cleaned up). Accordingly, the inclusion of the language
from Dalton that was used in this case did not alone make the Allen
charge here coercive per se.
¶37 	Next, we consider the additional language from the charge
given in Dalton that was missing from the charge that was given
here. First, the charge in Dalton told the jury, “[I]t is your duty to
decide this case if you can without yielding your conscientious
convictions.” Id. ¶ 51. We noted there that this language was

State v. Wahlstrom
20220988-CA 	19 	2026 UT App 143
important because it “conveyed the idea that the jury did not have
an absolute duty to reach a verdict.” Id. No such language was
present in the Allen charge here. Moreover, the charge in Dalton
also stated, “The verdict to which each of you agree must be your
own and the result of your own convictions and not a mere
acquiescence in the conclusion of your fellow jurors.” Id. ¶ 52. We
reasoned that this additional language likewise “serve[d] to
counterbalance any coercive impact the ‘duty to decide’ language
might have had if taken in isolation.” Id.
¶38 	We acknowledge that the Allen charge here did not include
such “duty to decide” language and, thus, lacked the coercive
power 	related 	specifically 	to 	that 	phrase. 	But 	the
counterbalancing language that is also missing here has import
even in the absence of such a phrase. Here, by commanding
dissenting jurors to reevaluate their position, the court was
exerting pressure on the minority jurors. And without language
directing these jurors to not yield their convictions or simply
acquiesce, there was nothing in the Allen charge to relieve its
coercive force.9
9. In Dalton, we noted that in conjunction with contemporaneous
counterbalancing 	language 	in 	the 	Allen 	charge, 	the 	jury
instructions 	provided 	before 	deliberation 	also 	contained
counterbalancing 	language 	similar 	to 	the 	counterbalancing
language in the Allen charge. State v. Dalton, 2014 UT App 68, ¶ 52,
331 P.3d 1110. Here, the jury was instructed as follows before
deliberation: “Your verdict must be your own. Do not make a
decision 	just 	to 	agree 	with 	everyone 	else.” 	This 	language
admittedly urged jurors at the outset of their deliberations against
reaching a decision for the sake of agreement. But this prior
instruction alone provided an inadequate counterbalance when
the 	minority 	of 	deadlocked 	jurors 	were 	later 	specifically
instructed to “consider whether a doubt in [their] own mind[s]
(continued…)

State v. Wahlstrom
20220988-CA 	20 	2026 UT App 143
¶39 	We have repeatedly emphasized the importance of such
counterbalancing language. For example, in State v. Lactod, 761
P.2d 	23 	(Utah 	Ct. 	App. 	1988), 	we 	upheld 	an 	Allen 	charge
instructing the jurors, “Be compromising as best you can without
surrendering your honest and true feelings, because we don’t
want you to go in there and let everybody walk all over you.” Id.
at 31. We reasoned that this language “clearly did not force the
jurors to reach a decision or to give up their conscientiously held
beliefs.” Id. In Harry, we likewise emphasized the following
counterbalancing language:
Remember at all times that no juror is expected to yield
a conscientious conviction he or she may have as to the
weight or effect of the evidence; but remember also
that after full deliberation and consideration of the
evidence in the case, it is your duty to agree upon a
verdict if you can do so without surrendering your
conscientious conviction.
State v. Harry, 2008 UT App 224, ¶ 12, 189 P.3d 98. And in State v.
Ginter, 2013 UT App 92, 300 P.3d 1278, we declared that “the
presence 	of 	cautionary 	language 	helps 	counterbalance 	any
[was] a reasonable one [where] it [made] no impression on the
minds of so many other jurors who [were] equally honest and
intelligent and [had] heard the same evidence and taken the same
oath.” Moreover, unlike the pre-deliberation instruction in Dalton,
the 	pre-deliberation 	instruction 	here 	did 	not 	suggest 	the
permissibility 	of 	the 	jury 	not 	returning 	a 	verdict. 	See 	id.
(explaining that the pre-deliberation jury instruction there stated,
“Try to reach unanimous agreement, but only if you can do so
honestly and in good conscience.” (emphasis added)). Ultimately, the
pre-deliberation instruction here was not as robust as the pre-
deliberation instruction in Dalton, and the fact that it contained
some counterbalancing language does not alone overcome the
lack of any such language within the Allen charge itself.

State v. Wahlstrom
20220988-CA 	21 	2026 UT App 143
coercive effect in the instruction” and held that where “only a
portion of the cautionary language from Harry” was provided, we
were 	“not 	convinced” 	that 	the 	language 	“was 	sufficient 	to
counterbalance the factors weighing in favor of coercion.” Id.
¶¶ 13–14.
¶40 	And we are not the only court to highlight the significance
of such language. See United States v. McElhiney, 275 F.3d 928, 943
(10th Cir. 2001) (“This court has never, at least not to our
knowledge nor in any of the cases supplied by the government,
approved 	of 	an 	Allen 	charge 	that 	failed 	to 	incorporate 	an
admonition 	regarding 	the 	juror’s 	conscientiously 	held
convictions.”); Smalls v. Batista, 191 F.3d 272, 279 (2d Cir. 1999)
(“[A] necessary component of any Allen-type charge requires the
trial judge to admonish the jurors not to surrender their own
conscientiously held beliefs.”); United States v. Mason, 658 F.2d
1263, 1268 (9th Cir. 1981) (“It is essential in almost all cases to
remind jurors of their duty and obligation not to surrender
conscientiously held beliefs simply to secure a verdict for either
party.”); United States v. Rogers, 289 F.2d 433, 435 (4th Cir. 1961)
(“[I]f [an Allen charge] were stripped of its complementary
reminder that jurors were not to acquiesce in the views of the
majority 	or 	to 	surrender 	their 	well-founded 	convictions
conscientiously 	held, 	it 	might 	readily 	be 	construed 	by 	the
minority of the jurors as coercive, suggesting to them that they
should surrender their views in deference to the majority and
concur in what really is a majority, rather than a unanimous,
verdict.”), abrogated on other grounds by Bell v. United States, 462
U.S. 356 (1983); cf. Darks v. Mullin, 327 F.3d 1001, 1014 (10th Cir.
2003) (determining that a supplemental instruction was not
coercive despite “lack[ing] protective language assuring minority
jurors 	they 	were 	not 	required 	to 	relinquish 	firmly 	held
convictions,” because, critically, “it did not include any language
asking the jurors to reconsider their positions and to change their
positions if they believed they were wrong”).

State v. Wahlstrom
20220988-CA 	22 	2026 UT App 143
¶41 	Because the Allen charge the trial court provided here
directed the minority of jurors to question the reasonableness of
their positions without also instructing pressured jurors that they
were not to relinquish their independently held convictions, this
charge was impermissibly coercive per se.
2. 	The Allen Charge Was Coercive Under the Circumstances
¶42 	This 	Allen 	charge 	was 	also 	coercive 	under 	the
circumstances. “Factors which we may consider in assessing
coercive effect include any colloquy between the judge and the
jury fore[person], circumstances surrounding the giving of the
instruction, and consideration of the American Bar Association
Standards on Criminal Justice Relating to Trial by Jury.” Lactod,
761 P.2d 23, 31 (cleaned up).
¶43 	Even though Wahlstrom’s trial was scheduled for two
days, the court and attorneys decided to squeeze it into a single
day. Jurors were notified that they would not be released anytime
soon when the prosecutor said before closing argument, “I
apologize. We’re going to keep you a little late. Hope that you will
forgive us because we’re giving you tomorrow off.” The court’s
directive that the jury reach a verdict was clear: “You’re going to
go back to the jury room. You are to deliberate and discuss matters
. . . and reach a verdict. Do whatever you need to to accomplish
that.” The jury was not excused to deliberate until 6:37 p.m. See
generally ABA Principles for Juries and Jury Trials, Principle
15(C)(2) 	(revised 	2023) 	(“A 	jury 	should not 	be required to
deliberate after normal working hours unless the court, after
consultation with the parties and the jurors, determines that
evening or weekend deliberations would not impose an undue
hardship upon the jurors, would not unnecessarily risk juror
safety, and are required in the interest of justice.”).
¶44 	The court and attorneys were aware that the jury was still
deliberating when they reviewed jury questions at 7:58 p.m.,

State v. Wahlstrom
20220988-CA 	23 	2026 UT App 143
8:43 p.m., and 9:20 p.m., yet the record does not contain an
indication that the court informed jurors that they could choose to
pause their deliberations and resume the following day. The
conversation between the court and bailiff surrounding the
8:43 p.m. message informed the court that the jury had come to an
agreement on all of the charges other than DUI, so as the night
wore on, the court was aware that the jury had spent several hours
discussing this sole charge. By 10:10 p.m., the bailiff had informed
the court and attorneys that the jury was deadlocked on this
charge. And the court did not inform the jury that if it could not
reach a unanimous verdict, the court would declare a mistrial.
Instead, as noted, the court directed the jury to “[d]o whatever [it]
need[ed] 	to 	to” 	reach 	a 	verdict. 	Similarly, 	one 	of 	the 	jury
instructions read, “The final step is for you to retire to the jury
room and deliberate until you reach a verdict.” (Emphasis added.)
¶45 	In other words, in the late hours of the evening, the jury
may have believed that it would be held for deliberations for as
long as necessary until it reached a unanimous verdict. Cf. State v.
Lactod, 761 P.2d 23, 31 (Utah Ct. App. 1988) (identifying as
significant, in holding an Allen charge was not coercive under the
circumstances, that “[t]he judge did not threaten to or keep the
jury deliberating for an unreasonable length of time”). We can
envision these circumstances creating tension in the jury room
and pressure against the minority jurors. The court’s response to
being told the jury was deadlocked was to send the Allen charge,
thereby 	instructing 	the—likely 	already 	pressured—minority
jurors to reconsider their positions based on the fact that the
majority took the opposite view. And as discussed above, this
Allen charge departed from the ABA language because it was
directed at only the minority jurors, a fact that increased its
coercive power. See State v. Harry, 2008 UT App 224, ¶ 34, 189 P.3d
98 (“Under the circumstances of this case, the instruction was not
reasonably within the ABA-recommended standards for verdict-

State v. Wahlstrom
20220988-CA 	24 	2026 UT App 143
urging instructions. The ABA standard does not single out the
minority jurors . . . .” (cleaned up)).
¶46 	A mere eleven minutes after being given the Allen charge,
the jury returned its verdict. This detail carries weight. In Lactod,
we said the fact that “the jury continued to deliberate after
receiving the instruction for another hour and fifteen minutes . . .
suggest[ed] that minority jurors did not instantly acquiesce to the
majority.” 761 P.2d at 31 (cleaned up). In Harry, on the other hand,
we stated that “the fact that the jury reached a verdict only
twenty-six minutes after receiving the modified Allen instruction
suggest[ed] that the sole dissenting juror was, in fact, coerced and
instantly acquiesced to the majority.” 2008 UT App 224, ¶ 33
(cleaned up); see also State v. Ginter, 2013 UT App 92, ¶ 12, 300 P.3d
1278 (stating that the event of “the jury return[ing] with a verdict
in 	less 	than 	thirty 	minutes” 	signaled 	“an 	atmosphere 	of
coerciveness”). Given the eleven-minute timeframe between the
Allen charge and the jury’s verdict—combined with the lateness
of the hour, the lack of any indication in the record that the jurors
knew that they had the option of resuming their deliberations the
following day or that they could be released without reaching a
unanimous verdict, and the targeted language to the minority
jurors—we have no trouble concluding that this Allen charge was
coercive under the circumstances.
B. 	Whether Counsel Provided Ineffective Assistance
¶47 	Given that the Allen charge in this case was coercive, we
next consider whether Counsel rendered ineffective assistance by
not 	objecting 	to 	the 	instruction. 	To 	succeed 	on 	a 	claim 	of
ineffective assistance of counsel, a defendant must show both
“that counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). We consider each prong in turn.

State v. Wahlstrom
20220988-CA 	25 	2026 UT App 143
1. 	Counsel Performed Deficiently
¶48 	Assessing 	whether 	counsel 	performed 	deficiently
“involves asking whether the strategy [c]ounsel employed was
that of a reasonable, competent lawyer.” State v. Wilkes, 2020 UT
App 175, ¶ 24, 479 P.3d 1142. “[T]he ultimate question is always
whether, considering all the circumstances, counsel’s acts or
omissions were objectively unreasonable.” State v. Scott, 2020 UT
13, ¶ 36, 462 P.3d 350.
¶49 	Here, we consider whether Counsel could have reasonably
wanted the jury to receive an Allen instruction that not only was
coercive but also coercively directed the minority jurors to
reconsider their positions. On the one hand, the bailiff did not tell
the court and attorneys how many jurors were holding out or for
which side. On the other hand, the evidence of Wahlstrom’s actual
physical 	control 	of 	the 	truck 	was 	very 	strong, 	and 	the
circumstances surrounding the court’s issuance of the Allen
charge provided Counsel with telling information about the jury’s
feelings.
¶50 	First, 	Counsel 	was 	aware 	that 	the 	evidence 	weighed
heavily in favor of a finding that Wahlstrom was in actual
physical control of the vehicle.10 When Deputy found Wahlstrom,
Wahlstrom was the sole occupant of the vehicle, was awake and
sitting in the driver seat, and had the key in the ignition with the
lights turned on. Additionally, the truck was parked in a position
from which it could easily access the road. And Wahlstrom
proved his possession of the key by removing the key from the
ignition when Deputy opened the truck door to encourage
10. Counsel’s willingness to send the jury to begin deliberations
at 	6:37 	p.m. 	itself 	suggests 	that 	Counsel 	did 	not 	believe
deliberations would last long—a belief we consider reasonable
given the strength of the evidence supporting a finding that
Wahlstrom was in actual physical control of the vehicle.

State v. Wahlstrom
20220988-CA 	26 	2026 UT App 143
Wahlstrom to get out. In short, of the first seven factors presented
to the jury in Instruction 53, six favored a finding that Wahlstrom
was 	in 	actual 	physical 	control 	of 	the 	truck, 	with 	the 	sole
counterpoint being that the engine was not running. See supra
¶ 18. 	Based 	on 	our 	state’s 	caselaw, 	Counsel 	would 	have
understood that this evidence strongly supported a finding that
Wahlstrom was in actual physical control of the vehicle. See, e.g.,
Lopez v. Schwendiman, 720 P.2d 778, 779–81 (Utah 1986) (upholding
a finding of actual physical control despite the defendant claiming
the car was “inoperable at the time of his arrest” where the
defendant was the sole occupant, was sitting in the driver seat,
and—though the engine was off—“removed the keys from the
ignition and had to turn them to get them out”); id. at 780–81
(stating that courts “start out from the premise that as long as a
person is physically able to assert dominion by starting the car
and driving away, he [or she] has substantially as much control
over the vehicle as he [or she] would if he [or she] were actually
driving it”); Garcia v. Schwendiman, 645 P.2d 651, 652, 654 (Utah
1982) (holding that there was “an adequate showing of actual
physical control” despite a defendant being blocked in by a fence
in the front and another car in the back where the defendant
“occupied the driver’s position behind the steering wheel, with
possession of the ignition key and with the apparent ability to
start and move the vehicle” (cleaned up)).
¶51 	Moreover, Counsel could infer from the jury’s actions
before the issuance of the Allen charge that the final two factors
listed in Instruction 53—how the vehicle got to its position and
who drove it there—also fell in favor of Wahlstrom being in actual
physical control of the vehicle. While Counsel had urged the jury
to credit Wahlstrom’s claim that Sadie had been the driver,
Counsel had information indicating that the jury had rejected this
claim. Specifically, Counsel knew that the jury was deadlocked
only on the DUI charge. And the court’s response to the jury’s
questions discussed at 9:20 p.m. answered the jury’s question as

State v. Wahlstrom
20220988-CA 	27 	2026 UT App 143
to whether DUI was satisfied by a finding of actual physical
control. This meant that at the point of deadlock, the jury
disagreed on whether Wahlstrom had been in actual physical
control of his truck while intoxicated. But because there was no
debate 	that 	Wahlstrom’s 	truck 	lacked 	an 	ignition 	interlock
system, the only element the jury needed to find to convict him on
the interlock charge was that he was—at any point—in actual
physical control of his truck. As a matter of law, the jury could not
acquit him on the interlock charge while some jurors were
convinced that he had been in actual physical control of the truck
while 	intoxicated, 	because 	the 	jurors 	would 	not 	have
unanimously agreed that he had never been in actual physical
control of the truck, as required to acquit on the interlock charge.
In other words, by stating that the jury had reached a verdict on
the other charges and then relaying that the jury was deadlocked
on DUI, the bailiff had unwittingly informed Counsel that the jury
had 	already 	unanimously 	found 	Wahlstrom 	guilty 	on 	the
interlock charge.
¶52 	This reality provided Counsel with additional information.
If jurors unanimously agreed that Wahlstrom had been in actual
physical control of the truck at some point but disagreed that he
had been so while intoxicated, even those favoring acquittal on
the DUI charge must have agreed that Wahlstrom had been in
actual physical control of the truck before becoming intoxicated.
Thus, Counsel could not have reasonably believed that the jury
credited the claim that Sadie was the one who drove the truck up
the 	mountain. 	In 	other 	words, 	the 	jury’s 	reported 	actions
informed Counsel that it had found Wahlstrom to be the driver.
And this finding meant that the final two listed factors for actual
physical control also fell against Wahlstrom.
¶53 	Given the strength of the evidence of Wahlstrom’s actual
physical control of the vehicle while intoxicated, Counsel’s only
real hope for acquittal was that jurors would accept his invitation
to credit Wahlstrom’s decision to call Friend for a ride and wait

State v. Wahlstrom
20220988-CA 	28 	2026 UT App 143
for Friend to pick him up. But as the State informed the jury in its
opening 	statement, 	the 	DUI 	charge 	contains 	a 	uniquely
preventative component and does not require an intoxicated
person to actually drive a vehicle. See Lopez, 720 P.2d at 781
(stating 	that 	the 	actual 	physical 	control 	requirement 	“was
intended 	by 	our 	legislature 	to 	protect 	public 	safety 	and
apprehend the drunken driver before he or she strikes”); Garcia,
645 P.2d at 654 (“As a matter of public policy and statutory
construction, 	we 	believe 	that 	the 	‘actual 	physical 	control’
language of Utah’s implied consent statute should be read as
intending to prevent intoxicated drivers from entering their
vehicles except as passengers or passive occupants . . . .”).
Instruction 53 correctly informed the jury, “A person need not
actually move, or attempt to move, a vehicle in order to have
actual 	physical 	control; 	the 	person only needs to 	have 	the
apparent ability to start and move the vehicle.” And we have
specifically indicated that “[w]hether or not a person has the
subjective intent to subsequently operate a vehicle is irrelevant to
the question of whether the person has the present ability to start
and move the vehicle” so “[i]t is therefore permissible for a trial
court to find that a person had actual physical control over a
vehicle even though the person did not subjectively intend to
exercise it.” State v. Barnhart, 850 P.2d 473, 479 (Utah Ct. App.
1993); see id. (upholding a finding of actual physical control where
a defendant was asleep in the front seat, despite “the trial court’s
express finding that [the] defendant intended that his girlfriend
drive the car away”). Knowing this, Counsel could only hope that
jurors would disregard the legal standard and want to acquit
Wahlstrom based on a sympathetic response to his decision to
wait for a ride.
¶54 	And, surprisingly, Counsel’s hope bore fruit. The bailiff’s
announcement that the jury was deadlocked on the DUI charge
informed Counsel that there was at least one juror who was not
prepared 	to 	convict 	Wahlstrom 	of 	DUI. 	But 	given 	the

State v. Wahlstrom
20220988-CA 	29 	2026 UT App 143
overwhelming evidence of actual physical control and given the
inferences available from the jury’s previous actions, it would
have been unreasonable for Counsel to believe that a majority of
jurors favored acquittal. Accordingly, the only result Counsel
could reasonably anticipate from the court issuing the Allen
charge, with its directive tailored to the minority jurors, was that
the minority of jurors favoring acquittal might fold under the
pressure and agree to convict on the DUI charge.
¶55 	Meanwhile, Counsel had the option to object to the Allen
charge and ask the court to include counterbalancing language
urging the jurors not to give up their conscientiously held beliefs,
in the hope that the jury would remain deadlocked and force a
mistrial. Reasonable counsel in this circumstance would not have
acquiesced in an instruction that pressured the minority jurors
into agreeing to convict Wahlstrom. Therefore, Counsel’s failure
to 	object 	to 	this 	Allen 	charge 	was 	unreasonable 	under 	the
circumstances and constituted deficient performance.
2. 	Counsel’s Deficient Performance Prejudiced Wahlstrom
¶56 	To establish ineffective assistance of counsel, a defendant
“must show that [counsel’s] deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To
satisfy 	this 	prong, 	“[t]he 	burden 	is 	on 	the 	defendant 	to
demonstrate a reasonable probability that the outcome of his or
her case would have been different absent counsel’s error.” State
v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome
of 	the 	proceeding.” 	Id. 	(cleaned 	up). 	“Prejudice 	analysis 	is
counterfactual. To decide whether a trial affected by error is
reasonably likely to have turned out differently we have to
consider a hypothetical—an alternative universe in which the trial
went off without the error.” State v. Ellis, 2018 UT 2, ¶ 42, 417
P.3d 86.

State v. Wahlstrom
20220988-CA 	30 	2026 UT App 143
¶57 	Wahlstrom 	was 	prejudiced 	by 	Counsel’s 	deficient
performance. Based on our analysis above, had Counsel objected
to the Allen charge, the trial court would likely have realized that
it was improperly coercive and not have issued it without
appropriate 	modification. 	Moreover, 	the 	minority 	had
demonstrated their resolve by not agreeing to convict for the
better part of an hour after the jury received the court’s 9:20 p.m.
answers to its latest questions—despite the pressures we expect
were mounting within the jury room based on the lateness of the
hour. Accordingly, we are not confident that in the absence of that
instruction the minority jurors would have folded. Therefore,
there is a reasonable probability of a hung jury on the DUI charge
had the jury not been given this Allen charge. See generally State v.
Scott, 2022 UT App 81, ¶ 40 n.8, 514 P.3d 590 (“If the jury is unable
to unanimously agree . . ., the result is a hung jury.” (cleaned up)).
¶58 	Because 	Counsel’s 	performance 	was 	deficient 	and
prejudiced 	Wahlstrom, 	Counsel 	provided 	constitutionally
ineffective assistance related to the DUI charge. However, as the
bailiff’s comments indicate, Counsel’s performance related to the
Allen charge made no difference to the jury’s convictions on the
other charges, because the jury had reached a unanimous verdict
on those charges before the deadlock. Accordingly, we reverse
Wahlstrom’s conviction on the DUI charge but do not disturb his
convictions on the other charges. We remand this case for such
further proceedings on the DUI charge as may be appropriate.
II. Failure to Resolve the Alleged Inaccuracy in the PSI
¶59 	Wahlstrom’s second issue on appeal is that the trial court
erred in failing “to properly resolve the claimed inaccuracy
contained in” his PSI. The State concedes that the trial court failed
to take the steps required by Utah Code section 77-18-103(5)(a)
and thereby erred. Accordingly, we remand this matter as well,
for the limited purpose of allowing the trial court to address the
alleged inaccuracy in Wahlstrom’s PSI. See State v. Cruz, 2020 UT

State v. Wahlstrom
20220988-CA 	31 	2026 UT App 143
App 157, ¶ 33, 478 P.3d 631 (“Because there is no objection to a
limited remand for the district court to make specific findings
regarding the accuracy of [the defendant’s] objections to the PSI,
we order limited remand for this purpose.”).
CONCLUSION
¶60 	The trial court gave the jury a coercive Allen charge, and
Counsel’s failure to object constituted ineffective assistance of
counsel. Also, the State concedes error regarding an alleged
inaccuracy in Wahlstrom’s PSI. We therefore remand for the
limited purposes of addressing the PSI issue and permitting
further proceedings on the DUI charge. We do not disturb
Wahlstrom’s other convictions.