State v. Hunt

2014 UT App 109
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
GEOFFREY THOMAS HUNT,
Defendant and Appellant.
Memorandum Decision
No. 20120886-CA
Filed May 15, 2014
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 111402193
Jarom B. Bangerter and Joseph E. Wrona,
Attorneys for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE
concurred.
ORME, Judge:
¶1 Defendant Geoffrey Thomas Hunt was acquitted of rape,
object rape, forcible sexual abuse, and forcible sodomy, but he was
convicted of unlawful sexual activity with a minor, a third degree
felony. He appeals that conviction, claiming that he received
ineffective assistance of counsel, that the trial court erred in
excluding some evidence, and that the trial court improperly urged
the jury to reach a verdict. We affirm.

State v. Hunt
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence only
as necessary to understand issues raised on appeal.” State v. Bluff,
2002 UT 66, ¶ 2, 52 P.3d 1210 (citation and internal quotation marks
omitted).
2. Because the statutory provisions in effect at the relevant time do
not differ in any way material to our analysis from those now in
effect, we cite the current version of the Utah Code as a
convenience to the reader.
20120886-CA 2 2014 UT App 109
¶2 Defendant was a friend of the victim’s parents and was often
at their home. The victim (Victim) claimed that she and Defendant,1
who was twenty-one years old at the time, became very close and
had at least three sexual encounters when she was fifteen years old.
¶3 First, Victim alleged that Defendant picked her up from
school and took her to get some items at home—something he was
authorized to do as one of her non-family emergency contacts
listed with the school. Victim claimed that after getting what she
needed from home, they went for a drive. Victim testified that
during the drive Defendant initiated sexual contact, culminating in
Defendant putting his fingers in Victim’s vagina. Based on this
allegation, Defendant was charged with one count of object rape.
See Utah Code Ann. § 76-5-402.2(1) (LexisNexis Supp. 2013)2
(defining object rape as “penetration, however slight, of the genital
or anal opening of another person . . . by any foreign object,
substance, instrument, or device, including a part of the human
body other than the mouth or genitals”). On this charge, the jury
found Defendant not guilty.
¶4 Second, Victim claimed that during a party at her house,
Defendant got drunk, kissed Victim, and fondled her over her
clothes. Based on this accusation, Defendant was charged with one
count of forcible sexual abuse. See id. § 76-5-404 (2012). The jury
found Defendant not guilty on this charge as well.

State v. Hunt
20120886-CA 3 2014 UT App 109
¶5 Third, Victim claimed that during a family barbecue,
Defendant went into her bedroom and forced her to perform oral
sex and then have intercourse with him. As a result of this set of
allegations, Defendant was charged with one count of forcible
sodomy and one count of rape. See id. §§ 76-5-402, -403 (Supp.
2013). The jury also found Defendant not guilty on both of these
counts but convicted Defendant of unlawful sexual activity with a
minor, a lesser included offense under the rape charge. See id. § 76-
5-401 (2012) (making it a third degree felony to have “sexual
intercourse” or participate in other sexual activity “under
circumstances not amounting to rape” with a minor who is older
than fourteen but younger than sixteen).
I. Ineffective Assistance of Counsel
¶6 Defendant contends that he received ineffective assistance
from his trial counsel because his trial counsel failed to use a
peremptory challenge to remove a problematic potential juror and
failed to object to a proposed Allen instruction. To prevail on his
claim of ineffective assistance of counsel, Defendant must show
that “counsel’s representation fell below an objective standard of
reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),
and that Defendant “was prejudiced thereby,” id. at 702. Our
review of trial counsel’s performance is “highly deferential,” id. at
689, and to succeed, Defendant must show that “there was no
‘conceivable tactical basis for counsel’s actions,’” State v. Clark, 2004
UT 25, ¶ 6, 89 P.3d 162 (emphasis in original) (quoting State v.
Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998)).
¶7 During jury selection, one potential juror reported that she
had almost been the victim of a sexual assault when she was
seventeen years old. She explained that the incident occurred
decades earlier, the aggressor was a stranger, and the potential
juror escaped unharmed. When asked if this experience would
prevent her from making a fair judgment in the case, she replied,
“I think I’m fair in everything that’s set before me.” She also
informed the trial court that her son had been arrested once and
she felt it was a “miscarriage-of-justice type of thing.” Finally, in

State v. Hunt
20120886-CA 4 2014 UT App 109
contrast to some other potential jurors who shared her affiliation
with a religion that proscribes the use of alcohol, she stated that she
harbored no prejudice toward someone who drank alcohol and,
indeed, had many friends who drank. Defendant’s trial counsel
moved for this potential juror to be removed for cause, but the trial
court apparently believed that the potential juror could be objective
and declined to remove her. Trial counsel could have used a
peremptory challenge to remove the potential juror, but he did not.
Instead, trial counsel used all of his peremptory challenges to
exclude other prospective jurors. As a result, the potential juror
was empaneled and served on the jury in this case.
¶8 We can easily conceive of a tactical basis for trial counsel’s
actions. Trial counsel may have thought that removing this
potential juror for cause was worth a try but may also have
believed that his peremptories would be better used to exclude
other jurors if that attempt failed. Upon reflection, trial counsel
may have decided that this potential juror’s experience with her
son’s arrest and her lack of prejudice toward alcohol consumption
made her more sympathetic toward Defendant. Trial counsel may
even have reckoned that the trial court was correct in concluding,
as it apparently did, that the potential juror’s experience was
different enough from Victim’s experience that the potential juror
could be objective. The Utah Supreme Court has held that because
“the process of jury selection is a highly subjective, judgmental,
and intuitive process, trial counsel’s presumably conscious and
strategic choice to refrain from removing a particular juror is . . .
presumed to constitute effective representation.” State v. Litherland,
2000 UT 76, ¶ 20, 12 P.3d 92. Absent any compelling evidence to the
contrary, trial counsel’s presumptively sound decision not to use
a peremptory challenge in this situation did not constitute
ineffective assistance of counsel.
¶9 We also conclude that trial counsel was not deficient for
failing to object to the trial court’s efforts to help the jury reach a
verdict. During deliberations, the jurors informed the trial court
that they were having trouble coming to a decision, but the jury did
not provide any more information. The trial court called the jurors

State v. Hunt
20120886-CA 5 2014 UT App 109
in and discussed different options with them, including the
possibility of an instruction pursuant to Allen v. United States, 164
U.S. 492, 501 (1896):
I can give you what we call an “Allen charge.”
There was a famous case many years ago, and
nobody remembers the other parties anymore, but it
was somebody named Allen. And . . . it was a very
difficult case. And the jury came back and said, We
can’t reach a verdict.
And the judge said, You know what? This . . .
really matters. And he really kind of told them how
important it was and how stern it was and made
them go back and deliberate. And said, You make
another effort to come to a verdict.
That’s called an “Allen charge.” And this is a
case that might fit in that category, because this is the
kind of case we absolutely don’t want to try again.
What happens is if you’re not able to reach a verdict,
then it’s mistried. And we try it again. And that’s . . .
a struggle.
This is the time we want to reach a verdict if
there’s any way that you can. But I don’t want to
change the instructions we’ve given you about not
surrendering your honest convictions and, you
know, all of those instructions stand.
Let me . . . visit with Counsel for just a minute.
¶10 During the ensuing bench conference, the State proposed
letting the jurors go home for the night, but Defendant’s trial
counsel wanted to let the jurors vote on what to do. Instead of
giving the Allen instruction, the contours of which it had outlined
for the jury, the trial court called the jury back in and informed
them as follows:
I’m not gonna have you make the decision
right here, right now. I want you to go back as a
group and then let me know your group decision.

State v. Hunt
3. How long the jury was out after returning to its deliberations is
not clear from the record. Defendant claims it was approximately
an hour.
20120886-CA 6 2014 UT App 109
You can either . . . adjourn for the night. You
can go home. We can come back tomorrow and carry
on. We can take what we’ve got. Or we can continue
tonight and carry on . . . to try and resolve all of the
counts.
When the jurors returned some time later, they informed the trial3
court that instead of voting on an option, they had been able to
reach a unanimous verdict. They found Defendant not guilty on all
charges, returning a single guilty verdict on a lesser included
offense, unlawful sexual activity with a minor.
¶11 While the possibility of giving an Allen instruction was
discussed in some detail with the jury, the trial court endeavored
to avoid actually giving it to the jury. But to the extent the trial
court charged the jury with such an instruction, it is entirely
conceivable that trial counsel reasonably saw this as being
advantageous to Defendant. Indeed, unlike the prosecutor,
Defendant’s trial counsel did not want to send the jurors home for
the night, instead arguing that they should be allowed to continue
deliberating if they chose to do so. The obvious implication is that
trial counsel guessed—accurately, as it turned out—that the jury
was working toward a verdict that largely favored Defendant, all
things considered. Because this was an objectively reasonable
strategy, we conclude that Defendant received effective assistance
of counsel in this regard, too.
II. Exclusion of School Attendance Records
¶12 Defendant argues that the trial court erred in excluding
Victim’s school attendance records. At trial, Defendant sought to
rebut Victim’s claim that he picked her up from school by
introducing Victim’s attendance records under the business records

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20120886-CA 7 2014 UT App 109
exception to the hearsay rule. See Utah R. Evid. 803(6) (providing
a hearsay exception for records “kept in the course of a regularly
conducted activity” as long as, inter alia, “neither the source of
information nor the method or circumstances of preparation
indicate a lack of trustworthiness”). The State objected, arguing
that the records were not trustworthy because the witness through
whom Defendant attempted to introduce the school records had
testified that teachers were not always accurate in taking
attendance and that there may have been data lost due to the
school’s recent transfer to a new software platform. The trial court
sustained the State’s objection and the evidence was not presented
to the jury.
¶13 Defendant asserts he was prejudiced by this decision
because the “case essentially came down to whether or not the jury
believed [Victim’s] story.” The jury, however, apparently did not
believe Victim’s story because it found Defendant not guilty of
object rape and not guilty of the lesser included offense associated
with that charge, and these were the only charges that related to
the claimed early release from school.
¶14 “[W]e find errors by the trial court harmful only if there is
a ‘reasonable likelihood’ that the verdict would have been
different” absent the errors. State v. Clopten, 2009 UT 84, ¶ 39, 223
P.3d 1103 (quoting Steffensen v. Smith's Mgmt. Corp., 862 P.2d 1342,
1347 (Utah 1993)). In this case, the verdict on object rape was in
Defendant’s favor, and he cannot show—and, indeed, would not
want to show—that introducing the school records would have
changed that verdict. Defendant nonetheless contends that Victim’s
apparently discredited story, without being further discredited by
the school records, may have indirectly influenced the jury to
convict Defendant on a different charge. We conclude that this
possibility is entirely too speculative and that the admission of the
school attendance records is simply not likely to have affected the
single guilty verdict returned by the jury that was, after all, on a
charge based on events unconnected in any way to school
attendance. Any error concerning the admission of attendance
records was therefore harmless.

State v. Hunt
20120886-CA 8 2014 UT App 109
III. Exclusion of Evidence About Father’s Alleged Infidelity
¶15 At trial, Victim’s father (Father) testified that Victim’s
behavior changed around the time of the alleged abuse. Father
testified that she recoiled at his touch and that she refused to get
close to him or other people. He said, “[I]t was like I would have to
force her to hug me or give me a kiss good-bye or something.”
Based on this and other behavior, Father concluded that Victim was
“acting like somebody’s abused her.” During cross-examination,
trial counsel asked Father if there was anything else traumatic
happening in Victim’s life that could have explained her behavior,
and Father readily conceded that he and his wife were separated at
the time. Trial counsel then asked if the separation involved
accusations of unfaithfulness. The State objected on the basis of
relevance, and the trial court sustained the objection. The trial court
allowed trial counsel to question Father about the impact of the
separation on Victim but did not allow trial counsel to delve into
the reasons for the separation. Defendant contends that the trial
court erred when it prevented him from questioning Father about
his possible marital infidelity.
¶16 “A trial court has broad discretion in deciding whether
evidence is relevant, and we review a trial court’s relevance
determination for abuse of discretion.” State v. Fedorowicz, 2002 UT
67, ¶ 32, 52 P.3d 1194. That said, “[t]he standard for determining
the relevancy of the evidence is very low, and even evidence with
the slightest probative value is relevant.” State v. Smedley, 2003 UT
App 79, ¶ 15, 67 P.3d 1005 (citations and internal quotation marks
omitted). The trial court may have exceeded the sound exercise of
discretion in this regard, considering that accusations about
Father’s marital infidelity—if known to Victim—had at least “the
slightest probative value” in explaining Victim’s unusual behavior,
and perhaps to an extent not presented by her parents’ mere
separation. See id. Indeed, testimony that Victim may have blamed
Father for her parents’ separation might have dispelled in the jury’s
mind the possibility that her behavioral changes could only be
explained by her sexual encounters with Defendant.

State v. Hunt
20120886-CA 9 2014 UT App 109
¶17 Nonetheless, any error in excluding this line of questioning
was ultimately harmless. Defendant argues that questioning Father
about his alleged infidelity was important to show the jury not just
that Victim’s parents had separated but to show them whom
Victim might have blamed for the separation. Victim’s mother,
however, also testified that her daughter “started withdrawing”
and “stopped talking to me as much as she used to.” And Father
testified that Victim withdrew from other people as well as from
him. Therefore, it is not immediately clear how evidence that was
relevant to prove that Victim blamed Father for the separation and
withdrew from him specifically for that reason would also explain
why she simultaneously withdrew from others, including her
mother.
¶18 It is illogical to suggest that a jury that acquitted Defendant
of four felony counts, even though it heard nothing about the
precise reason for the separation of Victim’s parents, would have
also acquitted him of the one lesser included offense of which he
was convicted had only they known more about the reason for the
separation. Victim’s lack of credibility in the eyes of the jury—not
the inference to be drawn from her changed behavior—explains its
verdict.
¶19 Despite its several acquittals and apparent disbelief of much
of what Victim had to say, the jury could nonetheless readily
conclude that Defendant had an unlawful sexual relationship with
her in the total absence of any evidence about a change of behavior
on her part, and the same would be true if it knew that infidelity
explained the marital separation and concluded that the separation
was the sole cause of her changed behavior. Defendant himself
made incriminating statements that would support the jury’s
conclusion that Defendant was at least guilty of unlawful sexual
activity with a minor. For instance, Defendant testified that Victim
attempted to seduce him by luring him into a garage where she
was waiting in the nude. Explaining why he did not stay in the
garage for very long, he testified, “It’s something I wouldn’t want
to risk . . . . Like I say, it was a common area and, you know.
Granted nothing happened [but], it would look incredibly

State v. Hunt
20120886-CA 10 2014 UT App 109
awkward . . . if a parent [came] out to smoke or something[.]” He
then testified that he did not tell Victim’s parents about the incident
because he “didn’t feel it was necessary.” Additionally, during a
recorded telephone call with Defendant, Victim asked him if he had
told anyone that they had sexual intercourse. He did not deny the
encounter. Instead, he said he had not, and asked Victim, “Did
you?” The jury could have inferred from all this, without any
consideration of Victim’s change in behavior, that Defendant had
a sexual encounter with Victim, one that was unlawful given her
age.
¶20 In sum, even if the jury had heard all about Father’s alleged
infidelity and attributed all of Victim’s behavioral changes to the
trauma caused by his infidelity, the jury would still have convicted
Defendant of unlawful sexual activity with a minor based on the
totality of the evidence presented at trial. It follows that any error
in this regard did not prejudice Defendant because “no reasonable
likelihood exists that the error affected the outcome of the
proceedings.” Jones v. Cyprus Plateau Mining Corp., 944 P.2d 357, 360
(Utah 1985).
IV. Allen Instruction
¶21 Finally, Defendant argues that he did not receive a fair trial
because the trial court delivered a modified Allen instruction. Trial
counsel did not preserve this issue, and we therefore review it for
plain error. See State v. Moa, 2012 UT 28, ¶ 24, 282 P.3d 985. We note
that Allen instructions are not invariably coercive, see State v. Harry,
2008 UT App 224, ¶ 8, 189 P.3d 98, and can “be a reasonable and
proper exercise of the court’s power to guide the jury to a fair and
impartial verdict,” State v. Lactod, 761 P.2d 23, 30 (Utah Ct. App.
1988). Under certain circumstances, however, an Allen instruction
can be coercive and result in an unfair trial. See Harry, 2008 UT App
224, ¶ 27.
¶22 In this case, we conclude that the trial court gave no Allen
instruction, coercive or otherwise, to the jury. The jury asked the
trial court for help in reaching a verdict, and the trial court obliged

State v. Hunt
20120886-CA 11 2014 UT App 109
by accurately describing several available options, including
offering an appropriate description of an Allen instruction. The trial
court, however, concluded that it did not want to “change the
instructions we’ve given you about not surrendering your honest
convictions and . . . all of those instructions stand.” Instead, at the
urging of Defendant’s trial counsel, the court allowed the jurors to
decide how they wanted to proceed. They left to discuss their
options, turned to completing their deliberations, and arrived at a
verdict. Aside from his claim that the trial court gave a coercive
Allen instruction, Defendant does not contend that the trial court’s
instructions, comments, or demeanor were coercive in any way.
¶23 We conclude that no Allen instruction was actually given,
and that the court did not otherwise inappropriately coerce the jury
to reach a verdict. Moreover, as previously stated, see supra ¶ 11, to
the extent that the trial court urged the jury to come to a decision
if possible, this approach had the support of Defendant’s counsel
and may well have worked to his advantage given his acquittal on
all but one of the many charges he faced.
¶24 Affirmed.