State v. Elton

2026 UT App 7

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MATTHEW ELTON,
Appellant.

Opinion
No. 20230151-CA
Filed January 23, 2026

Sixth District Court, Manti Department
The Honorable Mandy Larsen
No. 211600367

Trevor J. Lee, Attorney for Appellant
Derek E. Brown and Tera J. Peterson,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Matthew Elton was charged with child abuse with serious
physical injury, aggravated assault, burglary, robbery, and
violating a protective order. Elton pleaded guilty to those charges
and was sentenced to prison. While those charges had been
pending, the court had issued a no-contact order that prohibited
him from contacting his ex-wife and their children. While
incarcerated, however, Elton continued to contact them. Based on
these communications, he was later charged with fifteen counts of
violating a protective order. At trial, the jury convicted Elton on
six counts and acquitted him of nine. Elton now appeals and raises
several ineffective assistance of counsel and trial error claims. We
affirm Elton’s convictions for lack of prejudice.
State v. Elton

BACKGROUND 1

Elton’s Prior Convictions and Entry of the No-Contact Order

¶2 Elton and his ex-wife, Nancy, 2 divorced in 2018 after a
turbulent relationship marked by domestic violence. They are the
parents of four children. In October 2020, while Elton faced
domestic violence and other charges, the trial court entered a
pretrial no-contact order prohibiting him from contacting his son
Jalen or Jalen’s “family,” including Nancy and the other children. 3
The order stated it would “remain in effect while the case is
pending and, if applicable, while the defendant is incarcerated, on
parole or on probation, unless otherwise modified in writing by
the Court.”

¶3 In December 2020, Elton pleaded guilty to five domestic
violence offenses, globally resolving three separate cases that
involved child abuse with serious physical injury, aggravated

1. “We recite the facts in a light most favorable to the jury verdict.
We present conflicting evidence only when necessary to
understand issues raised on appeal.” State v. Vallejo, 2019 UT 38,
¶ 2 n.1, 449 P.3d 39 (quotation simplified).

2. We use pseudonyms for Elton’s ex-wife and children.

3. Paragraph 2 of the no-contact order states:
The defendant shall not communicate with the
victim in any way directly or indirectly. This means
that the defendant shall have no contact whatsoever
with the victim or any of the victim’s family or
household members. Contact includes, but is not
limited to, communication that is in person, in
writing, by telephone, text messaging, Email, any
other electronic communication, or contact through
a third person.

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assault, burglary, robbery, and violation of an earlier protective
order. In January 2021, he was sentenced to prison. The trial court
did not impose any new permanent protective order at
sentencing, nor did it enter any written order modifying or
vacating the previously entered no-contact order.

¶4 Elton arrived in prison on February 3, 2021. From there, he
sent Nancy and the children several letters and immediately
began calling Nancy “nonstop.” Nancy and her son Ricky spoke
with Elton several times. But a phone call made to Nancy and
Jalen around April 20, 2021, prompted Nancy to block Elton’s calls
and request help from Utah State Prison investigators to stop the
calls. Thereafter, Elton continued to attempt to contact Nancy.

The State Files Charges

¶5 In September 2021, the State charged Elton with fifteen
counts of violating a protective order between February 1, 2021,
and August 1, 2021. Each charge was enhanced based on Elton’s
2020 domestic violence convictions. Before trial, the State filed
notice under rule 404(b) of the Utah Rules of Evidence that it
intended “to introduce evidence of the defendant’s prior domestic
violence convictions for the purpose of proving an element of
each charge”—enhancing the counts to third-degree felonies—
and to prove “motive and absence of mistake.”

The Stipulated Admission of Evidence of the Prior Convictions

¶6 At trial in November 2022, Elton’s defense counsel
(Counsel) stipulated to the admission of four convictions from
two of Elton’s 2020 cases: (1) the case involving child abuse and
(2) the case involving aggravated assault, burglary, and robbery.
The parties agreed that the convictions “would come in but just
by admission of a certified copy of the conviction [and] not the
details . . . regarding what happened.”

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State v. Elton

¶7 Counsel explained that he “stipulated to the evidence of
the prior convictions coming in and also not doing a motion to
bifurcate” as “a strategy decision.” Counsel observed that the
State’s evidence was inevitably “going to show that Mr. Elton was
incarcerated” because he sent the letters and made the phone calls
from prison. Counsel explained that by allowing the jury to know
why Elton was in prison but without going into any details, the
jury would be able to focus on whether Elton violated the no-
contact order:

[I]f I did not allow some explanation for what he
was in prison for, then the jury would be wondering
what he is in prison for. And so I believe that it is
better for them to know this is what he was
sentenced to prison for.

. . . And with a stipulation we mitigate some
of the harmful effects of the damning testimony
about specifics . . . of the crimes. And so I believe
that it is more beneficial for the jury to have that
answer to those questions so that they’re not
thinking about that; that they can concentrate on
whether he violated the protective order [or] not.

¶8 Counsel opposed the admission of Elton’s prior conviction
for violating a protective order. Counsel conceded that there was
a proper noncharacter purpose for its admission—to rebut any
defense of mistake. But Counsel argued admission of the prior
protective-order conviction would be unfairly prejudicial because
“it’s the exact same charge” and risked the jury concluding, “well,
he’s violated a protective order in the past, and so . . . he’s
violating a protective order now.” The trial court ruled that it
would not allow admission of Elton’s conviction for violation of a
protective order as part of the State’s case-in-chief but would
consider allowing it to be admitted in rebuttal if Elton raised a
mistake defense. The State did not introduce any testimony about

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State v. Elton

the details of the prior convictions during its case. And before it
rested, the State asked the court to take judicial notice of the four
prior convictions and admit the conviction documents as exhibits.

¶9 Before the defense presented its case, Counsel advised the
trial court that Elton “would like to testify” and that “he would
say that he made a mistake as to whether there was a valid
protective order in place.” After announcing the defense strategy
of mistake, Counsel sought the admission of Elton’s prior
conviction for violating a protective order near the beginning of
Elton’s testimony.

The State’s Case

¶10 During its case-in-chief, the State called Nancy, Jalen,
Wendy (Elton’s adult daughter from a prior relationship who is
not a protected party), and two prison investigators to testify.
Nancy testified that Elton began calling her immediately after he
arrived in prison. Nancy stated that she received “at least”
twenty-nine calls from Elton before she finally answered one in
February 2021. She answered the call because she thought it might
be helpful for Ricky to talk to his father, and she was curious about
why Elton was calling. After that, Nancy and Ricky spoke to Elton
several times until a phone call to Nancy and Jalen on about April
20, 2021, caused Nancy to stop accepting the calls. Nancy blocked
Elton’s phone number, but her phone log shows that Elton
attempted to call her at least forty-nine times between May 8 and
June 1, 2021.

¶11 Nancy testified that she and the children also received
several letters from Elton starting in February and continuing
through May 2021. Two of the letters served as the basis for two
separate counts: a letter addressed to Jalen postmarked February
23, 2021, and one addressed to Nancy postmarked May 13, 2021.
Nancy did not read any of the letters to the jury but testified that
the contents of one letter scared her. Nancy testified that she

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received another letter (Exhibit 7) in June 2021, but the postmark
was not entirely legible.

¶12 Nancy stated that she contacted the Utah State Prison on
May 24, 2021, to ask them to help stop the contacts and to block
Elton’s calls. The prison blocked Elton’s calls to Nancy around
June 1, 2021, and assigned two investigators to look into whether
Elton had violated the no-contact order that was imposed in his
criminal cases. In addition to the phone calls Elton made to Nancy,
investigators discovered that an inmate housed in the same unit
as Elton had asked his significant other to call Nancy at Elton’s
request.

¶13 An investigator talked with Elton on June 9, 2021. The
investigator testified that Elton admitted to contacting Nancy and
the children by calling and writing letters. Elton initially claimed
that he was not aware of the no-contact order that had been
entered in 2020. But later, Elton indicated that he had spoken to
his former attorney, who had advised him that “there was no
longer an order in place.” The investigator stated that he
“carefully” reviewed the no-contact order with Elton: “I went
through the no-contact order word for word. . . . I read it to him
and asked if he understood each [clause].” The investigator
“strongly suggested that [Elton] cease all contacts or all efforts to
contact” Nancy and the children.

¶14 Another investigator from the prison met with Elton on
June 21, 2021. The investigator testified that he reminded Elton
that “there was a no-contact order in place and admonished him
to not have any further contact with [Nancy].” This investigator
had also collected the letters Elton had sent to Nancy and the
children while he was incarcerated. Just days after the
investigator met with Elton, the investigator was notified that
Elton’s daughter Wendy had called Nancy, on behalf of Elton, to
ask her to “drop the protective order.” During a subsequent

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State v. Elton

phone call between Wendy and Elton on June 23, 2021, Elton told
Wendy, “When I get out, I am going to do something to [Nancy].”

Elton’s Defense

¶15 Elton testified in his own defense. He admitted to sending
letters and making calls to Nancy, Jalen, and Ricky, and he
acknowledged that he was charged with and convicted of five
felony domestic violence offenses before being charged in this
case. Elton claimed that he did not remember the trial court
entering the no-contact order in October 2020, because he was
confused and “struggling at the time.” He testified that he had
previously been on many different medications and was going
through withdrawals because he was not receiving his medication
at the jail. He stated that the hearing when the no-contact order
was entered was a remote hearing that was “difficult and
disorienting, and . . . difficult for [him] to understand.” According
to Elton, the court did not mention or discuss the no-contact order
when he pleaded guilty or when he was sentenced.

¶16 Elton testified that because the events surrounding his
prior convictions “had kind of been hazy” and he “had some
problems” with violating a protective order “in the past,” he
called his former attorney in February 2021 to see if there was a
no-contact order. He said that when his attorney responded after
a delay of two-plus months, she told him it would “be fine” to
contact Nancy and the children.

¶17 Elton testified that after he was sentenced and first went to
prison, Nancy accepted his calls and was “really nice.” Elton
believed that “everything was going to be alright” and that he
could salvage his relationship with Nancy and the children.
According to Elton, at some point Nancy stopped answering his
calls, which concerned him. He acknowledged that a prison
investigator met with him and told him that the no-contact order
was still in place and to stop the contact, but Elton claimed that
this happened after he talked with his former attorney.

20230151-CA 7 2026 UT App 7
State v. Elton

¶18 The attorney who represented Elton in the criminal cases
in which the no-contact order was entered testified for the
defense. She stated that Elton contacted her around the end of
March 2021 to ask if the no-contact order that had been entered in
his prior cases was still in effect. After looking into it, the attorney
claimed that she told Elton on April 12, 2021, that the no-contact
order was no longer in effect. She believed that the no-contact
order expired when Elton was sentenced, and she interpreted the
“if applicable” language to mean that “the judge would have to
enter an additional order . . . saying this is to remain in effect
during the incarceration or the parole.”

¶19 During cross-examination of Elton, the State linked Elton’s
prior convictions to Nancy and Jalen. That is, the State asked if
Elton “pled guilty to aggravated assault of [Nancy],” “pled guilty
to a burglary and a robbery . . . [that] both involved” Nancy, and
“pled guilty to child abuse causing a serious physical injury of
[Jalen].” In response to a question from the State, Elton admitted
that he had damaged his relationship with his children through
his actions. The State also asked Elton specifically about Exhibit 7,
which was the letter Nancy had testified Elton sent her in June
2021. Elton, however, claimed that he had sent it back in July 2020
when he was in the Utah County Jail.

¶20 After Elton testified, Counsel moved to withdraw Exhibit
7 from evidence. Counsel conceded that he had earlier stipulated
to the letter’s admission, but Counsel said that he now understood
from Elton’s testimony that the letter was written before the no-
contact order was entered. In light of this, Counsel now argued
that the letter was irrelevant and prejudicial. The State objected
and argued that Elton was in the Utah County Jail for several
months after the no-contact order was entered in October 2020.
Furthermore, the State argued, even if the letter was sent in July
2020, before the entry of the no-contact order, it was still
admissible to show Nancy and Elton’s rocky relationship.

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¶21 The trial court asked Counsel if he was aware of any rule
that would allow the court to withdraw evidence after it had been
admitted. Counsel said no, and the court ruled that Exhibit 7
would remain in evidence and go to the jury but encouraged the
parties to propose a jury instruction to address the issue. The
parties agreed to instructing the jury that “Exhibit #7 may not be
used as evidence that the exhibit violated a protective order;
however, Exhibit #7 may be used as evidence for whatever other
purpose the Jury sees fit.”

Jury Instructions

¶22 Counsel requested that the verdict form instruct the jury
that it had to be unanimous as to specific dates and acts for each
count to ensure juror unanimity. The State agreed that the jury
needed to understand that it was required to return a unanimous
verdict on all counts but argued that a jury instruction on the issue
would be the better course. The State also pointed out that for
some phone calls, Nancy “couldn’t necessarily give an exact date
of when . . . [Elton] called” and gave only a “date range.” The State
asserted that the jury could “be instructed that if they’re going to
find the violation occurred, they just need to be unanimous about
what that count is and when that . . . occurred even if it is a date
range.”

¶23 Following the trial court’s suggestion, the parties
stipulated that the court could instruct the jury on unanimity
based upon Model Utah Jury Instruction CR431. That instruction
explained that the jury must unanimously agree on which
occasion and which act Elton committed for each count:

The prosecution has charged in Count 1 through
Count 15 that MATTHEW ELTON committed
VIOLATION OF A PROTECTIVE ORDER multiple
times. Although each of these counts has similar or
identical elements, you must consider each count
separately and reach unanimous agreement on

20230151-CA 9 2026 UT App 7
State v. Elton

whether MATTHEW ELTON is guilty or not guilty
of each individual count. You may not find the
defendant guilty of any count unless you
unanimously agree the prosecution has proven the
specific act in the elements of the offense for each
count AND you unanimously agree the prosecution
has proven all other elements of the count. You may
find the defendant guilty of all of these counts, none
of these counts, or only some of these counts; but for
each count your decision must be unanimous.

The instruction then listed which specific act and date was
charged for each count. For Counts 2 through 5, the date of the
alleged conduct was listed as a range:

• COUNT 2 is based on the alleged conduct of
calling [Nancy] between the dates of
February 1 and February 29, 2021.

• COUNT 3 is based on the alleged conduct of
calling [Ricky] between the dates of February
1 and February 29, 2021.

• COUNT 4 is based on the alleged conduct of
calling [Nancy] between the dates of March 1
and March 30, 2021.

• COUNT 5 is based on the alleged conduct of
calling [Ricky] between the dates of March 1
and March 30, 2021.

Closing Arguments and Conviction

¶24 In closing, Counsel argued that the main issue in the case
was whether Elton “knowingly or intentionally violated” the no-
contact order. Counsel asserted that for Counts 6 through 15—
which all occurred after Elton received legal advice from his

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State v. Elton

former attorney on April 12, 2021, that there was not a no-contact
order in place—Elton did not knowingly and intentionally violate
the no-contact order because he believed there was not an order
in place. And as for Counts 1 through 5—which all occurred before
Elton received the advice from his former attorney—Counsel
contended that Elton was not aware that the no-contact order had
been entered. In support, he pointed to Elton’s testimony that he
was experiencing “withdrawals from medication” and that the
court proceeding was “confusing” because it was conducted
remotely, as well as the fact that Nancy did not mention anything
about a no-contact order for several months after Elton began
contacting her.

¶25 The jury partially accepted Elton’s defense. It convicted
him on six counts (Counts 1 through 5 and 15) and acquitted him
of nine. Of these convictions, five counts were based on phone
calls made before Elton talked to his attorney on April 12, and the
remaining count was for arranging to have Wendy contact Nancy
on June 23, 2021, after the prison investigators informed him that
the no-contact order was in place. Elton was sentenced to prison.

ISSUES AND STANDARDS OF REVIEW

¶26 Elton now appeals, raising three issues for our review.
First, Elton argues that Counsel provided ineffective assistance by
introducing Elton’s prior convictions for child abuse, aggravated
assault, and violating a protective order. He also contends the trial
court plainly erred by not sua sponte intervening when the
prosecutor engaged in alleged misconduct by using those
convictions for character and propensity purposes.

¶27 Second, Elton argues that Counsel provided ineffective
assistance by stipulating to the admission of Exhibit 7 and that the
trial court abused its discretion by denying Counsel’s later motion
to withdraw Exhibit 7. Elton further contends that the trial court
plainly erred by not sua sponte intervening when the prosecutor

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State v. Elton

engaged in alleged misconduct by encouraging the jury to use
Exhibit 7 and other communications for character and propensity
purposes.

¶28 Third, Elton claims the trial court erred by giving an
incorrect unanimity instruction to the jury, and that Counsel was
ineffective for approving the incorrect instruction.

¶29 Elton’s claims are subject to the following standards of
review. “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. Popp,
2019 UT App 173, ¶ 19, 453 P.3d 657 (quotation simplified).
Likewise, “plain error is a question of law reviewed for
correctness.” Id. (quotation simplified). “We review the trial
court’s decision to admit or exclude evidence for abuse of
discretion.” State v. Nunez, 2021 UT App 86, ¶ 27, 498 P.3d 458
(quotation simplified).

ANALYSIS

I. Prior Convictions

¶30 Elton argues that the “admission of and repeated
references to Elton’s prior crimes warrants reversal.” Specifically,
he faults Counsel for introducing his prior convictions for child
abuse, aggravated assault, and violating a protective order.
Relatedly, he contends the trial court plainly erred by not sua
sponte intervening when the prosecutor engaged in alleged
misconduct by discussing the “details” of Elton’s prior
convictions and using them for character and propensity
purposes.

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State v. Elton

A. Admission of prior convictions

¶31 At trial, the jury learned that Elton had prior convictions
for child abuse, aggravated assault, and violating a protective
order, among others. Counsel stipulated to the admission of
certified copies of the judgments of conviction for Elton’s child
abuse and aggravated assault convictions, and Counsel
introduced the evidence of Elton’s conviction for violation of a
protective order during Elton’s direct testimony, after
determining that Elton’s testimony would raise a mistake defense.
Elton contends that both of Counsel’s actions amount to
ineffective assistance. 4

¶32 To prevail on a claim of ineffective assistance of counsel, a
defendant must satisfy the two-prong test articulated in Strickland
v. Washington, 466 U.S. 668 (1984), which requires the defendant
to show (1) “that counsel’s performance was deficient” and
(2) “that the deficient performance prejudiced the defense.” Id. at
687. Because “a defendant’s inability to establish either element
defeats a claim for ineffective assistance of counsel,” we are free

4. Counsel initially opposed the admission of Elton’s prior
conviction for violating a protective order. In response, the trial
court disallowed the conviction in the State’s case-in-chief but
indicated that after “hear[ing] the evidence and the defense,” it
would consider allowing the conviction to be admitted if Elton
raised a mistake defense. Elton argues the court erred in
determining that the conviction was admissible because the prior
conviction was not relevant to the particular mistake defense
offered and, in any event, the prior conviction was substantially
more prejudicial than probative under rule 403 of the Utah Rules
of Evidence. But as Elton himself acknowledges, the court
“technically reserved its final ruling” until the defense presented
its case. Thus, because the court never actually determined that
the prior conviction was admissible, any blame in introducing the
conviction falls on Counsel, not the court.

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State v. Elton

to reject such a claim under either prong. State v. Wright, 2021 UT
App 7, ¶ 52, 481 P.3d 479 (quotation simplified). We resolve this
claim under the prejudice prong.

¶33 To establish prejudice, Elton bears the burden of proving
that Counsel’s errors had an adverse effect on the defense and
“must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. When evaluating a prejudice claim in
the ineffective assistance context, “we assess counterfactuals
scenarios—that is, what would have happened but for the
ineffective assistance.” Ross v. State, 2019 UT 48, ¶ 76, 448 P.3d
1203. In making this determination, “we consider the totality of
the evidence, taking into account such factors as whether the
errors affect the entire evidentiary picture or have an isolated
effect and how strongly the verdict is supported by the record.”
State v. Griffin, 2015 UT 18, ¶ 21, 441 P.3d 1166 (quotation
simplified).

¶34 Elton has not met his burden to show that he was
prejudiced by Counsel stipulating to the admission of Elton’s
prior convictions for child abuse and aggravated assault or for
introducing Elton’s prior conviction for violating a protective
order. This is so for multiple reasons.

¶35 First, evidence of Elton’s prior convictions, with the
stipulation that neither party would delve into the underlying
details of those convictions, was admissible evidence that was
intrinsic to the violation of a protective order crimes charged here.
See State v. Blackwing, 2025 UT 60, ¶ 34. Evidence of prior acts is
“intrinsic” “when there is a direct relationship between the act
and the charged crime.” Id. ¶ 31. “To be considered intrinsic, the
acts must be an integral and natural part of the circumstances
surrounding the offense for which the defendant is charged or

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State v. Elton

directly connected to the factual circumstances of the crime.” Id.
(quotation simplified). Here, Elton’s prior convictions are intrinsic
because “[t]here is a direct relationship between [Elton’s prior
convictions] and the crimes for which [Elton] is on trial.” Id. ¶ 34.
All of Elton’s charges here were based on violating the no-contact
order. Evidence of Elton’s prior convictions explained the nature
of the no-contact order, including the victims and the other parties
involved, the nature of their relationships, why the no-contact
order had been entered, why he knew he was subject to the no-
contact order, why he was in prison, why he sought the advice of
his former attorney, and why prison investigators were speaking
with him. Because Elton’s prior convictions led to his current
charges, introducing this evidence allowed Counsel to highlight
Elton’s argument that he was both unaware that the no-contact
order had been entered before the cases were resolved and that he
believed the no-contact order expired after he was sentenced.
Thus, the evidence of Elton’s prior convictions was unlikely to so
prejudice the jury against Elton that knowing he had been
previously convicted altered the outcome of the trial.

¶36 Second, the evidence against Elton was strong. Elton did
not deny calling and sending the letters to Nancy and the
children. For all the violations for which Elton was convicted, the
State presented strong direct evidence that Elton knowingly or
intentionally violated the no-contact order. For Counts 1 through
5, which were for violations that occurred before Elton received
advice from his former attorney, the evidence showed that the no-
contact order was entered in his prior case and was not vacated or
amended by the judge. And the evidence supporting Elton’s
conviction on Count 15 is similarly strong. Although this violation
occurred after Elton spoke with his former attorney, it also
occurred after the prison investigators sat down with Elton and
carefully went over the no-contact order with him and reiterated
the consequences for violating it. Despite this, Elton still
attempted to contact Nancy through Wendy. Due to the strength
of the evidence on these counts, we fail to see any reasonable

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likelihood of a different result for Elton had evidence of his prior
convictions been excluded.

¶37 Third, the jury’s split verdict shows that it carefully
evaluated the evidence, not simply convicted on propensity. The
jury acquitted Elton of nine of the fifteen counts, which
demonstrates that it paid close attention to the relevant dates
when evaluating the charges. While Elton’s prior convictions may
have carried some prejudicial weight, introducing evidence of
those convictions allowed Elton to introduce the testimony of his
former attorney to support his mistaken belief that the no-contact
order was not in effect. Given all this, there is no reasonable
likelihood that Elton would have been acquitted on any
additional counts had evidence of his prior convictions been
excluded.

B. Prosecutorial misconduct

¶38 Next, Elton argues that regardless of whether his prior
convictions properly came in, the prosecutor “engaged in
misconduct by discussing the details of the crimes (rather than the
simple record of conviction) and using them for an improper
character or propensity purpose.” Because Counsel did not object
to the majority of this alleged misconduct below, our review is for
plain error.5 See State v. Hummel, 2017 UT 19, ¶ 105, 393 P.3d 314.

5. Counsel objected below to two instances of alleged misconduct:
a question concerning the number of times Elton had been
arrested and a question regarding whether Elton’s relationships
with his family had been damaged because of his actions. The trial
court sustained Counsel’s objection to the first question but
overruled his objection to the second question. Because the claims
based on these particular objections were preserved, we review
the trial court’s rulings for an abuse of discretion. See State v.
Henfling, 2020 UT App 129, ¶ 31, 474 P.3d 994. As to the first claim,
(continued…)

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State v. Elton

¶39 “The plain error standard of review requires an appellant
to show the existence of a harmful error that should have been
obvious to the trial court.” State v. Ringstad, 2018 UT App 66, ¶ 62,
424 P.3d 1052 (quotation simplified). When evaluating
prosecutorial misconduct in the context of plain error, it is not our
role to “review the actions of counsel—at least not directly.”
Hummel, 2017 UT 19, ¶ 107. Rather, we “review the decisions of
lower courts” and determine “whether counsel’s missteps were
so egregious that it would be plain error for the district court to
decline to intervene sua sponte.” Id. ¶¶ 107, 110 (emphasis
omitted); see also id. ¶ 107 (“[P]lain error review considers the
plainness or obviousness of the district court’s error (not the
prosecutor’s).”).

¶40 Elton contends the prosecutor improperly questioned
Elton by eliciting information about his prior convictions in an
attempt to persuade the jury to convict based on Elton’s
propensity to commit bad acts. Specifically, he points to the
following information that was revealed during Elton’s cross-
examination: (1) the victim in Elton’s prior aggravated assault
case was Nancy, (2) the victim in Elton’s prior child abuse case
was Jalen, (3) Elton’s prior aggravated assault conviction
stemmed from a “disagreement” with Nancy, (4) Elton had been
involved in “multiple different criminal cases,” and (5) Nancy is
“a domestic violence victim.” Additionally, Elton complains it
was improper for the prosecutor to argue in closing that it was

there was no error because the court sustained the objection and
Elton “makes no attempt to argue that the judge’s response to the
objection was inadequate.” See State v. Hummel, 2017 UT 19, ¶ 120,
393 P.3d 314. And as to the second claim, Elton has not engaged
with the court’s rationale for overruling the objection.
Consequently, Elton has failed to “demonstrat[e] any error on the
part of the trial court.” State v. Millett, 2025 UT App 67, ¶ 34, 572
P.3d 389 (quotation simplified). We therefore do not further
address this claim.

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“vitally important to understand and to remember” that Nancy
and the children were domestic violence victims. As with Elton’s
related ineffective assistance claim, we ultimately need not
determine whether the complained-of statements were improper
because they were not harmful. That is, absent the remarks, there
is no “reasonable likelihood of a more favorable outcome” for
Elton. State v. Popp, 2019 UT App 173, ¶ 36, 453 P.3d 657 (quotation
simplified).

¶41 First, many of the prosecutor’s questions with which Elton
takes issue revealed merely cumulative information. “When
testimony is merely cumulative, we are usually disinclined to find
prejudice even when the testimony was improperly admitted.
This is because such testimony does not typically offer anything
new or additional to the evidentiary picture.” State v. Macleod,
2024 UT App 32, ¶ 53, 546 P.3d 366 (quotation simplified), cert.
denied, 558 P.3d 87 (Utah 2024). For example, the jury was
presented with testimony indicating that Elton had previously
hurt Nancy and Jalen. Nancy testified—over Counsel’s
objection—about a conversation Elton had with her and Jalen
where Elton apologized for hurting Jalen and claimed that he had
never hit Nancy. And text messages from Nancy to Wendy that
characterized Elton as “a women beating child abuse[r]” were
included in one of the State’s trial exhibits. 6 Moreover, the jury
was aware that Elton and Nancy had “disagreements”
“throughout the course of [their] marriage” because Elton himself
admitted this on direct examination. And the jury was also well
aware that Elton had been involved in “multiple” criminal cases
given that Counsel had stipulated to the record of conviction for
two separate cases.

¶42 Second, Elton overstates the prejudicial effect of the alleged
prosecutorial misconduct. According to Elton, the prosecutor

6. With one exception, Elton did not object to the admission of the
State’s exhibits, including the text messages identified above.

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State v. Elton

elicited the “details” of Elton’s crimes through his questioning.
However, the details to which Elton points are not so harmful as
to undermine our confidence in the verdict. While the jury learned
that Nancy and Jalen were the victims in Elton’s prior cases, the
jury did not learn the specific acts giving rise to the aggravated
assault and child abuse charges. And when some minor details
about Elton’s conduct filtered in when witnesses volunteered
unnecessary testimony, Counsel successfully objected to these
instances, and Elton has not shown that the trial court’s curative
instructions were ineffectual. See State v. Wright, 2013 UT App 142,
¶ 42, 304 P.3d 887 (“In the absence of any circumstances
suggesting otherwise, courts presume that the jury follows
[curative] instructions.”).

¶43 Third, the jury’s split verdict suggests that it carefully
considered the evidence and was not improperly influenced by
the prosecutor’s allegedly improper remarks. Thus, there is no
reasonable likelihood that Elton would have been acquitted on
any additional counts had the challenged information been
excluded.

¶44 For all these reasons, we are not persuaded that Elton was
harmed by any of the prosecutor’s allegedly improper remarks.
His plain error claim therefore fails.

II. Exhibit 7

¶45 Elton next argues that the admission and use of some of his
communications warrants reversal. Specifically, he contends that
Exhibit 7 was inadmissible and should not have been shown to
the jury. He further contends that the prosecutor engaged in
misconduct by encouraging the jury to use Exhibit 7 as character
and propensity evidence.

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State v. Elton

A. Admission of Exhibit 7

¶46 Elton argues that Exhibit 7 was inadmissible because it
predated the entry of the no-contact order and contained
“incredibly prejudicial content.” He thus contends that Counsel
was ineffective for stipulating to its admission. He also asserts that
the trial court abused its discretion by declining Counsel’s
request—made after Counsel became convinced the letter
predated the no-contact order—to withdraw Exhibit 7. We
address each in turn.

1. Ineffective assistance

¶47 As explained above, to prevail on a claim of ineffective
assistance of counsel, a defendant must demonstrate that his
counsel performed deficiently and that this deficient performance
was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687
(1984). “A defendant’s inability to establish either element defeats
a claim for ineffective assistance of counsel.” State v. Wright, 2021
UT App 7, ¶ 52, 481 P.3d 479 (quotation simplified). Because Elton
has not shown that he was prejudiced by Counsel stipulating to
the admission of Exhibit 7, his claim fails.

¶48 First, there is no “reasonable probability” that the result of
the trial would have been different absent the introduction of
Exhibit 7. See Strickland, 466 U.S. at 694. Counsel stipulated to the
introduction of seven of Elton’s letters at trial. Even assuming that
Exhibit 7 should not have been admitted, Elton makes no attempt
to explain how excluding that particular letter would have
resulted in an acquittal where the six other letters also established
the charged conduct. See State v. Leech, 2020 UT App 116, ¶ 44, 473
P.3d 218 (“Errors involving the improper admission of evidence
are often harmless where there is other overwhelming evidence
in the record proving the defendant’s guilt.”). Indeed, Elton’s
prejudice argument is largely limited to listing excerpts from
Exhibit 7 and arguing that the content is “incredibly prejudicial.”
But that argument confuses the point that by simply sending the

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State v. Elton

letters Elton violated the no-contact order; the content of the
letters was irrelevant.

¶49 Second, the trial court instructed the jury that Exhibit 7 was
not direct proof of a violation. Elton has not pointed to anything
that would cause us to depart from our general presumption “that
a jury will follow the instructions given it.” State v. Beckering, 2015
UT App 53, ¶ 24, 346 P.3d 672 (quotation simplified). Thus, we
presume that any potential for misuse was limited by virtue of
this instruction.

¶50 Lastly, again, the jury’s split verdict shows that it carefully
evaluated the evidence, not simply convicted on propensity.
Thus, there is no reasonable likelihood that the outcome at trial
would have been any different had Exhibit 7 been withdrawn.
Consequently, Elton cannot demonstrate prejudice.

2. Trial court error

¶51 After Elton testified, Counsel moved to withdraw Exhibit
7 on the ground that the letter predated the no-contact order and
it was therefore irrelevant and prejudicial. The trial court denied
Counsel’s request, opining it was not aware “of any rule that
allows [a court] to withdraw evidence after it’s been admitted.”
Elton contends the court’s determination that it did not have
power to withdraw Exhibit 7 was legally incorrect and the court
therefore abused its wide discretion by not withdrawing Exhibit
7 when given the chance.

¶52 In this case, we do not need to decide whether the trial
court’s ruling was correct on the merits because “[e]ven when
evidence is improperly admitted, reversal is required only where
the admission of the evidence amounted to prejudicial error.”
Avalos v. TL Custom, LLC, 2014 UT App 156, ¶ 19, 330 P.3d 727.
That is, reversal is necessary only when “there is a reasonable
likelihood that the error[] affected the outcome of the

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State v. Elton

proceedings.” State v. Gallegos, 2020 UT App 162, ¶ 62, 479 P.3d
631 (quotation simplified).

¶53 For the reasons discussed in the prior section, see supra
¶¶ 48–50, there is no reasonable likelihood that withdrawing
Exhibit 7 would have changed the outcome at trial. Even without
that letter, there were six other letters establishing the charged
conduct. See Leech, 2020 UT App 116, ¶ 44. Moreover, the trial
court instructed the jury that Exhibit 7 was not direct proof of a
violation. See Beckering, 2015 UT App 53, ¶ 24. Finally, the jury’s
split verdict indicates that it carefully considered the evidence and
did not convict based on propensity.

B. Prosecutorial misconduct

¶54 Next, Elton argues that regardless of whether Exhibit 7
should have been excluded, the prosecutor engaged in
misconduct by encouraging the jury to use the letter as character
evidence. 7 Because Counsel did not object to this alleged

7. Elton identifies four additional instances of alleged misconduct
stemming from questions the prosecutor asked Nancy, Jalen, a
detective, and one of the prison investigators about some of
Elton’s other communications. Of these instances, Counsel
successfully objected to the prosecutor’s questioning of the prison
investigator, and Elton “makes no attempt to argue that the
judge’s response to the objection was inadequate.” See Hummel,
2017 UT 19, ¶ 120. We thus discern no error with regard to this
questioning. As for the other three instances, we are not
convinced that Elton suffered harm. Given the sheer amount of
admissible evidence showing that Elton repeatedly contacted his
family in violation of the no-contact order, we see no “reasonable
likelihood of a more favorable outcome” for Elton had the
prosecutor not questioned Nancy, Jalen, and the detective about
Elton’s communications. See State v. Popp, 2019 UT App 173, ¶ 36,
(continued…)

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State v. Elton

misconduct below, our review is for plain error. See State v.
Hummel, 2017 UT 19, ¶ 105, 393 P.3d 314.

¶55 To prevail under plain error review, Elton must show “the
existence of a harmful error that should have been obvious to the
trial court.” State v. Ringstad, 2018 UT App 66, ¶ 62, 424 P.3d 1052
(quotation simplified). However, “the harm factor in the plain
error analysis is equivalent to the prejudice test applied in
assessing claims of ineffective assistance of counsel.” State v. Bair,
2012 UT App 106, ¶ 35, 275 P.3d 1050 (quotation simplified).
Because we have concluded that Elton cannot demonstrate
prejudice on this issue as part of his ineffective assistance of
counsel claim, see supra ¶¶ 48–50, his plain error claim on this
point necessarily fails.

III. Unanimity Instruction

¶56 Lastly, Elton argues that his convictions on Counts 2
through 5 must be vacated because there is no indication that they
were unanimous. He contends the trial court erred by proposing
the wrong jury instruction on unanimity, and he further faults
Counsel for then stipulating to that incorrect instruction.

¶57 The Unanimous Verdict Clause of the Utah Constitution
requires that “[i]n criminal cases the verdict shall be unanimous.”
Utah Const. art. I, § 10. The “requirement of unanimity is not met
if a jury unanimously finds only that a defendant is guilty of a
crime.” State v. Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314 (quotation
simplified). “A jury must be unanimous on all elements of a
criminal charge for a conviction to stand.” Id. ¶ 29 (quotation
simplified). “When a defendant is charged with multiple offenses
with identical or similar elements, unanimity as to the elements
requires that the jury be unanimous regarding the specific act

453 P.3d 657 (quotation simplified). We therefore reject Elton’s
plain error claim on this point.

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State v. Elton

supporting the conviction.” State v. Chadwick, 2024 UT 34, ¶ 32,
554 P.3d 1098.

¶58 Elton was charged with fifteen counts of violating a
protective order. For Counts 2 and 3, Elton was charged with
violating a protective order “between the dates of February 1 and
February 29, 2021.” And for Counts 4 and 5, Elton was charged
with violating a protective order “between the dates of March 1
and March 30, 2021.” During trial, the State asserted that Elton
had likely “violated the protective order hundreds of times” but
that he had been charged with “only” fifteen violations, and the
State recognized it would ultimately “have to choose those
specific” fifteen. But at the end of the trial, for Counts 2 through
5, the State failed to elect which specific violation supported each
charge; instead, the jury was provided with a victim name and a
one-month range and instructed that if the victim was called
during that time period it was a violation. However, at the trial
court’s suggestion—and with Counsel’s approval—the jury was
read a jury unanimity instruction based on Model Utah Jury
Instruction CR431, clarifying that when considering multiple
counts of the same crime, the jury “must consider each count
separately and reach unanimous agreement on whether [the
defendant] is guilty or not guilty of each individual count.”

¶59 Elton contends that the trial court erred in proposing this
unanimity instruction, and that Counsel performed deficiently by
subsequently approving it, because it does not address the
unanimity problem at issue. According to Elton, the issue here is
that the State presented evidence of “multiple alleged acts within
a given time frame” but charged only one. Thus, he argues, the
risk was not that the jury might not consider all of the various
charges separately (thereby providing a generic guilty verdict for
all counts) but, instead, that the jurors might disagree on the
particular act committed but still convict. And Elton asserts that
the latter concern is dealt with in a different instruction—Model

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State v. Elton

Utah Jury Instruction CR432—that was not read to the jury. 8 The
State counters that we should not review this claim because Elton
“invited any error in the instructions” when Counsel
affirmatively represented to the trial court that he approved the
unanimity instruction. See State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86
P.3d 742 (“A party cannot take advantage of an error committed
at trial when that party led the trial court into committing the
error.” (quotation simplified)). While the State is correct that
Counsel approved the unanimity instruction and thus invited any
error in the instruction—thereby foreclosing a claim of trial court
error—invited error “does not preclude a claim for ineffective
assistance of counsel.” State v. Popp, 2019 UT App 173, ¶ 25, 453
P.3d 657 (quotation simplified). We therefore analyze whether
Counsel was ineffective for approving the instruction.

¶60 Ultimately, we need not decide whether Counsel
performed deficiently by approving the unanimity instruction
suggested by the trial court because Elton has failed to
demonstrate that he was prejudiced by the use of the allegedly
erroneous instruction. That is, there is no “reasonable probability
the jury would not have convicted [Elton] if the jury instructions
had been correct.” State v. Grunwald, 2020 UT 40, ¶ 22, 478 P.3d 1.

8. Both model instruction CR431 and model instruction CR432 are
unanimity instructions. Compare Model Utah Jury Instructions 2d
CR431 Committee’s Notes to the 2022 amendment,
https://legacy.utcourts.gov/muji/?cat=2&subcat=32 [https://
perma.cc/JS2F-49LW] (“CR431 should be used in circumstances
where multiple counts have identical elements but are alleged to
have occurred on different occasions or are different acts allegedly
committed on the same occasion.”), with id. CR432 Committee’s
Notes to the 2024 amendment (“CR432 should be used in
circumstances where the prosecution has presented evidence that
the offense may have occurred more times than the prosecution
has charged.”).

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State v. Elton

¶61 First, the jury convicted Elton on only six of the fifteen
counts. This selective verdict demonstrates careful evaluation and
undermines any claim that jurors convicted on different acts
without unanimity. Moreover, this split verdict illustrates that the
jury discriminated between acts, which further suggests that it did
not convict based on generalized dislike of Elton or cumulative
acts.

¶62 Second, where, as here “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.”
State v. Mottaghian, 2022 UT App 8, ¶ 66, 504 P.3d 773. For Counts
2 through 5, Elton was charged with violating a protective order
for calling Nancy in February, Ricky in February, Nancy in March,
and Ricky in March, respectively. At trial, Nancy did not testify
that Elton called her or Ricky on a specific day. Rather, she
testified that Elton called her “at least” twenty-nine times after he
arrived in prison but before she answered, that she talked to Elton
five or six times before she stopped talking to him in April, and
that Ricky talked to Elton “at least” ten times in that same time
period. By convicting Elton on these counts, the jury necessarily
believed Nancy’s testimony. Because the evidence as to each
count was essentially identical (i.e., Nancy did not testify that she
was contacted on a specific date), we see no reasonable probability
that the jury would have acquitted Elton on any of these counts
had it been asked to agree on a single phone call for each. Put
differently, because any of these calls would have been a
violation, if Elton was guilty of doing one of the acts—which the
jury found he was—he was guilty of them all.

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State v. Elton

CONCLUSION

¶63 Elton’s claims of ineffective assistance of counsel and trial
court error all fail for lack of prejudice. Accordingly, we affirm
Elton’s convictions.

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