State v. Macleod

2024 UT App 32

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CAILEAN TORQUIL MACLEOD,
Appellant.

Opinion
No. 20220163-CA
Filed March 14, 2024

Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 201909556

Robert T. Denny, Attorney for Appellant
Sean D. Reyes and Daniel L. Day,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

ORME, Judge:

¶1 Cailean Torquil Macleod appeals his convictions on one
count each of rape and object rape and on two counts of forcible
sexual abuse. In challenging his rape and object rape convictions,
he argues that his trial counsel (Counsel) was ineffective for not
objecting to alleged prosecutorial misconduct and inadmissible
hearsay testimony. As concerns his forcible sexual abuse
convictions, he contends that Counsel was ineffective for not
requesting that the jury be adequately instructed on the
constitutional unanimity requirement. Macleod’s unanimity
argument is well taken, and we therefore reverse his forcible
sexual abuse convictions. But because his rape and object rape
 State v. Macleod

convictions withstand his other claims of ineffective assistance,
we affirm those convictions.

BACKGROUND 1 0F

¶2 In 2020, Macleod and Hannah 2 connected on a dating app.
1F

After a day of messaging back and forth, Hannah invited Macleod
to her house. There, while lying on her bed, Macleod told Hannah
“some personal stuff about him that he doesn’t really share with
a lot of people.” Hannah then disclosed to him that she had
herpes. Macleod “didn’t seem to mind” and “was very
understanding,” so the two proceeded to have consensual sex.
Afterward, Hannah told Macleod that she wanted to wait three
months before having sex again because she wanted to see
whether “this was going to turn into . . . an actual relationship”
and because she “didn’t want it to be a hook-up.”

¶3 Macleod saw Hannah again at her house a few days later.
They first socialized with Hannah’s two roommates in the
basement of her house before going upstairs to talk alone for a
while. Macleod eventually became frustrated because Hannah
did not want to have sex, and he went outside. There, he spoke
with Hannah’s male roommate (Roommate), who mentioned that
Hannah had sex with another man the other day when she was
drunk. Macleod then returned inside the house and told Hannah,
“Oh, I just have to get you drunk to have sex with you.”

¶4 The next day, Macleod met Hannah and Roommate at a
grocery store. There, Macleod “kept trying to touch [Hannah’s]

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.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

2. A pseudonym.

20220163-CA 2 2024 UT App 32
 State v. Macleod

butt” and “to hug [her] from behind.” Hannah told him “no”
repeatedly, as well as “stop,” and that she needed “space.”
Despite her protestations, Macleod was undeterred, so Hannah
yelled, “Just stop touching me!” Hannah testified that “his hands
did kind of touch my butt” over her clothing “but it wasn’t like
grabbing it.” Roommate testified that he saw Macleod groping
Hannah’s “breasts, thighs, and sides” at the store.

¶5 After buying groceries, Hannah, Macleod, and Roommate
returned to Hannah’s house. There, they sat in the kitchen for
about half an hour, each drinking a beer. They then went outside,
where Macleod and Hannah played basketball while Roommate
sat nearby, alternating between watching them and playing on his
phone. Hannah testified that during the game of basketball,
whenever she went to shoot, Macleod would grab her by the waist
or touch her buttocks over her clothes, and at one point he
touched her breasts over her clothes. Roommate testified that
during the game Macleod tried to kiss Hannah and that he was
groping her inner thighs and breast area. Hannah testified she
repeatedly told him, “That’s not how you play basketball” and
that she “didn’t want him to touch [her] like that.” Eventually, she
became very “frustrated and annoyed,” so she ended the game
and went to sit next to Roommate.

¶6 Hannah asked Macleod to go back into the house and
retrieve another beer for her, which he did. While drinking it,
Hannah began to feel tired and stated that she wanted to go
inside, where they could lie down and watch a movie. She and
Macleod then went to her bedroom. Hannah explained that
although there were other televisions in the house, the one in her
bedroom was the only one that was “plugged into . . . the cable.”
In her room, Hannah changed into pajamas. She was also wearing
teal underwear and socks. While lying on their sides on the bed
together, Macleod “tr[ied] to cuddle with” Hannah by placing one
arm under her head and the other on her stomach. Hannah was
“okay” with this touching.

20220163-CA 3 2024 UT App 32
 State v. Macleod

¶7 Macleod then touched Hannah’s buttocks and vagina over
her clothes. She told him “to stop” and that she “just wanted to go
to bed,” and she moved his hand away. At first, Macleod “let it go
for a little bit,” but he then touched her buttocks and vagina again.
Hannah again told him “no” and that she “just wanted to go to
bed.” Then, while Hannah was still lying on her side, Macleod
pulled down her pants and inserted his fingers into her vagina.
Hannah grabbed his hand and pulled it away and again said “no,”
“I just want to go to bed,” and that she “didn’t want anything to
happen.” Macleod did not say anything in response.

¶8 Hannah testified that she next remembered “dozing off,”
but she was not certain whether she fell asleep. The next thing she
knew, she was lying on her stomach with her pants and
underwear pulled down and Macleod was on top of her with his
penis inside her vagina. Hannah told him to “get the fuck off” her,
to which he said, “Don’t you like that?” Hannah responded, “No.
Get the fuck off me.” After a few seconds, Macleod removed
himself from on top of her.

¶9 Hannah then pulled up her pants and underwear, moved
back onto her side, hid under the covers, and texted Roommate.
She typed, “Lol your still up,” “He just tried to have sex with me
while I was half a sleep,” and “I dont feel comfortable at all going
to bed.” At one point, Hannah thought Macleod had left when she
heard him exit through the front door of the house, so she went
into the kitchen. But Macleod quickly returned to the house to
retrieve a hat he had left behind. Upon seeing Hannah, he said,
“Oh, you’re still awake. I was going to leave you a note telling you
that I had to leave, that I didn’t have my medication, and that I’m
not in the right state of mind and I need to leave.” Hannah replied,
“[O]kay.” When Macleod left for a second time, Hannah texted
Roommate, “He left finally.”

¶10 Roommate testified at trial that he heard Hannah shout,
“Get the fuck away from me!” through the shared wall between

20220163-CA 4 2024 UT App 32
 State v. Macleod

their bedrooms, but he remained in his room because he “was
already passed out.” Because he had fallen asleep, he did not see
Hannah’s messages until right before he left for work the next
morning. Roommate testified that after work, Hannah told him
about the previous night and that as she was falling asleep, “out
of nowhere she felt something inside her and woke up” and that
“what was inside her was [Macleod’s] fingers.” Roommate then
stated that she told Macleod, “No. Get the fuck off me.”
Roommate continued, “And then a couple more minutes later, she
passed out again. But this time, instead of hands, he flipped her
over, pulled down her pants, and stuck his dick in” her vagina.
During cross-examination by Counsel, Roommate acknowledged
that although he heard Hannah shout at Macleod, he was not in
the room and did not see any of this happen.

¶11 The next day—about a day and a half after the sexual
assault—Hannah, accompanied by Roommate and with his
encouragement, went to the hospital for an examination and to
report what had happened. She brought the clothes she was
wearing at the time of the assault with her. At the hospital,
Hannah met with a sexual assault nurse examiner (Nurse). Nurse
testified at trial that Hannah told her that while on the basketball
court, Macleod “kept hugging her [and] kept trying to touch her
and she kept telling him to stop,” and that later in the bedroom,
as Nurse recounted, “he kept trying to pull her pants off and she
kept telling him to quit.” Hannah told Nurse that after she fell
asleep, “she woke up because she was being rolled over on her
stomach and then he was penetrating her from behind.” Hannah
said that Macleod stopped penetrating her “shortly after” she told
him to stop.

¶12 Nurse also collected some of the clothing Hannah brought
to the hospital, including the teal underwear, and swabbed
Hannah’s breasts, neck, fingernails, mouth, “pubis to anus,” and
“vaginal vault.” Subsequent DNA testing revealed male DNA in
her vagina, but of an insufficient quantity to allow for further

20220163-CA 5 2024 UT App 32
 State v. Macleod

testing. DNA testing of the teal underwear revealed “touch
DNA” 3 belonging to Macleod and seminal fluid belonging to the
2F

other man Hannah had sex with a few days earlier.

¶13 A police officer (Officer) also spoke with Hannah at the
hospital. Officer testified at trial that when he first saw Hannah in
the hospital room, she was sitting on the hospital bed “in a fetal
position” with her arms wrapped around her legs. She appeared
to him as though she had been crying, and she was “very jittery,
tense, on edge” with “[p]retty frantic eye movement.” Officer
testified that Hannah told him that while playing basketball,
Macleod “kept trying to grab her . . . private areas: Buttocks,
thighs, breasts, vagina area,” and that Hannah kept having to
push him away and tell him, “No . . . don’t touch me. I don’t want
that.” Officer testified that Hannah told him that later that
evening, she and Macleod watched a movie in her bedroom and
she eventually fell asleep. At approximately 3:00 a.m., Hannah
said, she woke up “with her pants down and she was being
penetrated by” Macleod. She told Officer that Macleod’s “fingers
and his penis had entered her vagina.” Officer understood
Hannah to mean that both forms of penetration occurred at
“[a]pproximately” the same time. Hannah told Officer that she
told Macleod “to get off” her, which he did, and that Macleod then
asked her “if they were okay, if everything was fine, and then left
her home.”

¶14 A few days later, a detective (Detective) interviewed
Macleod. At trial, Detective testified that Macleod gave the

3. At trial, one of the State’s expert witnesses explained that
“touch DNA” is “any potential DNA left behind from touching.
Just skin contact really.” The expert also explained that the
difference between touch DNA and bodily fluid DNA is that the
latter yields more DNA.

20220163-CA 6 2024 UT App 32
 State v. Macleod

following version of events during the interview. 4 Macleod told
3F

Detective that he met Hannah on a dating app and that when they
met in person, Hannah disclosed to him that she had herpes and
they had consensual sex. After they had sex, she told him that she
wanted to wait three months to have sex again because “she
didn’t want the relationship based on sex.” The second time they
met, “there was no sexual contact,” although Hannah “was
touchy.” At that second meeting, Macleod was aware that
Hannah had sex with another man.

¶15 The third time they met, he, Hannah, and Roommate were
at the grocery store. According to Macleod, nothing of note
happened at the store. They then went back to Hannah’s house,
where he and Hannah played basketball, during which he hugged
her around the waist, but he stated that “he didn’t touch any of
her parts, that it was just a normal hug.” Hannah then told him
that “basketball is a no contact sport.”

¶16 Macleod told Detective that afterward, he suggested they
go inside to watch a movie. While on Hannah’s bed cuddling,
Macleod “made a move” on Hannah and they started kissing.
He then “tugged at her pants and she told him no and moved
his hand away.” Macleod denied both that “his hand ever went
down her pants” and that “his fingers ever went in her vagina.”
Macleod told Detective that “he respected” Hannah’s request
“and stopped touching her and they just cuddled” until she fell
asleep. Macleod said he then kissed her neck and “tried to make
another move.” They “kissed passionately” but Hannah told him,
“Remember what I told you earlier.” When Detective asked
Macleod to clarify what Hannah meant by that statement,
Macleod said “that meant that she didn’t want to go any further.”

4. A recording of this interview was submitted into evidence as an
exhibit at trial, but the State played only a few minutes of the
hour-long interview for the jury as part of its cross-examination
of Macleod. See infra ¶ 24.

20220163-CA 7 2024 UT App 32
 State v. Macleod

Macleod stated that he then “stopped and that was the end of their
passionate kissing.”

¶17 Macleod stated that once Hannah fell back asleep, he began
to feel anxious because he had not taken his medication, so he left.
But he soon returned to retrieve his hat and found Hannah sitting
in the kitchen. Because he “felt bad like he was sneaking out in the
middle of the night,” he apologized for leaving after kissing her.
He then asked Hannah out on another date, to which she agreed,
and he left.

¶18 Detective testified that Macleod told her that he and
Hannah “were no longer together” because “they just didn’t seem
like a good fit” and that he was seeing someone else. He explained
that he and Hannah had “different political views” and that “they
got in a very heated discussion” on the subject during their third
meeting. Despite not “feeling it” after the argument, Macleod said
he still wanted to have sex with her that night.

¶19 The State charged Macleod with one count each of rape and
object rape and two counts of forcible sexual abuse. At trial, as
part of its case-in-chief, the State presented testimony from
Hannah, Roommate, Officer, Nurse, and expert witnesses. This
testimony is recounted above.

¶20 Macleod testified in his defense. He stated that Hannah
was wearing teal underwear when they had consensual sex
during their first meeting. And after they had sex, she told
him that she did not want to have sex again for another three
months to “set the basis for a serious relationship.” But Macleod
testified that during their second meeting, Hannah told him that
she had “sex approximately six times” the previous night with
another man. Upon hearing this, Macleod did not believe that
they “could have a serious relationship” anymore, and he
expected to have only a “[p]urely casual” relationship going
forward.

20220163-CA 8 2024 UT App 32
 State v. Macleod

¶21 He testified that when he met her and Roommate at
the grocery store the next day, he and Hannah had “an established
casual relationship” and any touching that occurred there
was “casual.” He stated that Hannah never asked him to stop
touching her or yelled at him in the grocery store. And when they
later played basketball at her house, although Macleod
acknowledged that there was contact between them and that
Hannah told him that “[b]asketball is a no contact sport,” he
stated that he “did not inherently do anything sexual to her at all.”
He stated that he believed the only reason she wanted “a physical
barrier” between them was that she did not want Roommate “to
feel awkward.”

¶22 He stated that once the game ended, he asked Hannah if
she wanted “to watch a movie and cuddle.” She responded,
“Yeah, that sounds nice.” He stated that while cuddling on her
bed, they started to kiss and he “proceeded to try and go further”
but Hannah stopped him, saying, “Remember, I wanted to wait.”
Macleod testified that Hannah then explained that she wanted to
wait not only because of their relationship but also because “she
had an incurable lifelong . . . sexually transmitted disease.”
Macleod stated that at that point the relationship was already
casual, but “now I find out that in said casual relationship I could
contract something that would stay with me for life.” He thus
decided that “there is nothing there” between them and that when
he later left Hannah’s house, he considered their casual
relationship “[t]o be terminated.” He denied inserting his penis or
fingers into her vagina that night. He also denied groping her
breasts or buttocks.

¶23 During cross-examination by the State, Macleod denied
touching Hannah’s buttocks at the grocery store, but he stated he
“might have” touched Hannah’s waist and that he did not
“believe” he touched her breasts. He also stated that when
Hannah later told him on the basketball court that “[b]asketball is
a no-contact sport,” she did so “[j]okingly,” “in a very

20220163-CA 9 2024 UT App 32
 State v. Macleod

light-hearted manner.” He also stated that they were playing a
game of HORSE. 5 4F

¶24 The State played portions of Detective’s recorded
interview with Macleod as part of its cross-examination. These
points are noteworthy:

• Macleod told Detective that Hannah disclosed to him that
she had herpes on their first meeting, which contradicted
Macleod’s claim at trial that she told him about it for the
first time during their third meeting. Macleod explained
the discrepancy by stating that the interview “was
confusing” and “there were multiple points in which
[Detective] asked me to clarify things that I thought I had
said.” The State, however, pointed out that this statement
was made four minutes into the interview and asked
whether he was “already confused at that point.” Macleod
replied, “I’m not sure how to answer the question.”

• Macleod told Detective that he and Hannah ended their
relationship over political differences, but at trial he stated
that he ended the relationship because Hannah told him
she had herpes. Macleod testified that he did not mention
herpes during the interview as a reason for ending their

5. Macleod described the rules of the game as follows: “One
person lines up and takes a shot, the next person, if that shot is
made, has to make that same shot.” He also acknowledged that
“there is no defense involved” in a game of HORSE. See How to
Play Horse (the Basketball Game), WikiHow, https://www.wikihow
.com/Play-Horse-(the-Basketball-Game) [https://perma.cc/NQK4-
QYPF] (“[HORSE] is a basketball shooting game where players
take turns shooting at the hoop from different locations. If
someone makes a shot but everyone else misses, those people get
a letter toward the word ‘HORSE.’ The last person left standing
wins!”).

20220163-CA 10 2024 UT App 32
 State v. Macleod

relationship because he “tried not to make it a focal point,”
although he acknowledged that he mentioned it several
times at other points during the interview. 6
5F

• Macleod told Detective that he would have had sex with
Hannah that night if she had consented, but at trial he said
he no longer wanted even a casual relationship with her
after finding out about her having herpes. Macleod
testified that he “was not trying to focus on that aspect,”
referring to her herpes, during the interview.

¶25 During closing argument, the State told the jury, in
relevant part, that the count of rape corresponded to the allegation
that Macleod inserted his penis into Hannah’s vagina and the
count of object rape corresponded to the allegation that he
inserted his fingers into her vagina. Concerning the two counts of
forcible sexual abuse, the State told the jury,

Count 3 and 4 are the same elements but for
different actions. The defendant touched
[Hannah’s] breast and touched her buttocks without
her consent. This occurred on the basketball court.
[Hannah] and [Roommate] described the defendant
repeatedly touching and groping [Hannah’s]
bottom, specifically her breasts and buttocks. He did
so just by being told to stop in the store and then
being told to stop again while playing basketball.

¶26 The State also highlighted the discrepancy between what
Macleod told Detective and his trial testimony concerning when

6. In Part I below, we provide an excerpt of this portion of the
cross-examination and also provide a transcription of a portion of
the recorded interview that was not played for the jury in which
Macleod mentioned Hannah’s herpes and the other man with
whom she was having sex as reasons for their relationship ending.

20220163-CA 11 2024 UT App 32
 State v. Macleod

Hannah disclosed to him that she had herpes and why he left the
house on the night in question, stating,

The defendant says that on the night [Hannah] told
him about the herpes, that made him leave, but
exactly none of that is in his interview. The exact
opposite is. He says he touched her, he pulled on her
pants, and she said no. He kissed her while she was
asleep, she woke up and said no. He said he then
waited . . . for her to sleep again and then he left.

He said he was anxious because he hadn’t
taken his medications and so he leaves and he tells
[Hannah] this. And he told [Detective] that that was
why he left. Today he says this was an excuse he
made up to get out of an uncomfortable situation
with [Hannah], but that is not what he told
[Detective], that it’s really about the herpes, that it’s
really about this other sexual partner that [Hannah]
is having.

¶27 Counsel stated during closing argument that Macleod
“categorically denied having any sexual intercourse” that night,
including inserting his fingers into Hannah’s vagina or groping
her breasts, buttocks, inner thighs, or vagina. Counsel asserted
that when Hannah told Macleod about her herpes on the night
of their third meeting, he realized he no longer wanted to have
even casual sex with her, so he left. Counsel then suggested
that after Macleod left, Hannah and Roommate “had 36 hours
to concoct a story about being scorned and” to “alleg[e]
particular things to have happened.” In support of this theory,
Counsel rhetorically asked what kind of roommate would go to
sleep after hearing Hannah yell, “Get the fuck off me!” He also
suggested that Macleod’s touch DNA appeared on Hannah’s
underwear because the pair she brought to the hospital was the
pair she had worn when they had consensual sex on their first

20220163-CA 12 2024 UT App 32
 State v. Macleod

meeting and not the pair she wore on the night of the alleged
sexual assault.

¶28 The jury convicted Macleod on all charges. This appeal
followed.

ISSUES AND STANDARD OF REVIEW

¶29 Macleod raises three claims of ineffective assistance of
counsel that we reach on the merits. “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. Elkface, 2023 UT App 24, ¶ 7, 527 P.3d 820
(quotation simplified), cert. denied, 534 P.3d 752 (Utah 2023).

ANALYSIS

¶30 A successful ineffective assistance of counsel claim
requires a criminal defendant to show that (1) “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” 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. Hatch, 2019
UT App 203, ¶ 29, 455 P.3d 1103 (quotation simplified), cert.
denied, 462 P.3d 801 (Utah 2020).

¶31 Under the first element, defense counsel’s acts or omissions
amount to deficient performance when they fall “below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688.
When conducting this analysis, courts “indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. See id. (“Judicial
scrutiny of counsel’s performance must be highly deferential.”). It
is thus insufficient to merely show that counsel erred. See State v.

20220163-CA 13 2024 UT App 32
 State v. Macleod

Ray, 2020 UT 12, ¶ 34, 469 P.3d 871 (“Even if an omission is
inadvertent and not due to a purposeful strategy, relief is not
automatic.”) (quotation simplified). Rather, “the 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.

¶32 Under the second element, to establish prejudice, “[t]he
defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. In conducting this inquiry, “an
appellate court should 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.” Gregg v. State, 2012 UT 32,
¶ 21, 279 P.3d 396 (quotation simplified).

¶33 Macleod argues that Counsel was ineffective for (1) not
objecting to statements that amounted to prosecutorial
misconduct, (2) not objecting to inadmissible hearsay evidence,
and (3) not requesting more detailed unanimity instructions. 7 The
6F

first two claims relate to his rape and object rape convictions,
while the third claim relates to his two forcible sexual abuse
convictions. We address each argument in turn.

7. Macleod raises a fourth claim that Counsel was ineffective for
not requesting “lesser included [jury] instructions for the two
charges of forcible sexual abuse.” Because we reverse both
forcible sexual abuse convictions on jury unanimity grounds, see
infra Part III, we need not also address this challenge to those
convictions.

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 State v. Macleod

I. Prosecutorial Misconduct

¶34 Macleod contends that the prosecutor 8 committed 7F

prosecutorial misconduct “by misrepresenting evidence critical to
his defense on the rape and object rape charges.” He asserts that
his defense to those charges was that he did not have sex with
Hannah on the night in question “because (1) she had herpes and
(2) she was having sex with another man,” but that the prosecutor
improperly undermined this defense by twice incorrectly
claiming that during Macleod’s interview with Detective he made
no mention of herpes as a reason for the relationship ending.

¶35 The first instance of alleged prosecutorial misconduct
occurred during Macleod’s cross-examination, when the
following exchange took place:

[Prosecutor]: And your position today is that the
reason that the relationship ended is because there
was nothing left in it for you, as far as a casual
relationship because you could catch herpes; right?

[Macleod]: Correct.

[Prosecutor]: But that’s not what you told
[Detective], that’s something you’re saying for the
first time today; isn’t it?

[Macleod]: Not for the first time. I’ve told my lawyer
multiple occasions.

[Prosecutor]: I’m sure you have. So the first time that
we are hearing about it is today; is that right?

8. Although there were two prosecutors at trial, for simplicity we
refer to them in the singular.

20220163-CA 15 2024 UT App 32
 State v. Macleod

[Macleod]: I—I’m—again, 16 months ago. I don’t
know exactly what this is said so I can’t, yeah.

[Prosecutor]: But you did mention reasons for your
relationship ending with [Hannah] to [Detective]?

[Macleod]: I did.

[Prosecutor]: And you didn’t bother to include
herpes as one of those reasons.

[Macleod]: Apparently I brought it up.

[Prosecutor]: You brought it up but not in that
context; right?

[Macleod]: I tried not to make it a focal point. I
didn’t want [Detective] to believe that I was trying
to shame her in any way. . . .

¶36 The second instance of alleged prosecutorial misconduct
occurred when the prosecutor stated during closing argument,
“Today [Macleod] says [the medication] was an excuse he made
up to get out of an uncomfortable situation with [Hannah], but
that is not what he told [Detective], that it’s really about the
herpes, that it’s really about this other sexual partner that
[Hannah] is having.”

¶37 Macleod contends that these representations by the
prosecutor that Macleod did not mention herpes as a reason for
the relationship ending is refuted by a portion of the recorded
interview that was not played for the jury. Specifically, the
prosecutor stopped playing the recording immediately after
Macleod told Detective,

So the first night like I don’t know we talked
about—we talked about like, pasts and got to know

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 State v. Macleod

each other a little bit. And we ended up sleeping
together. And then in—and then, actually, she told
me that she had herpes. And then that was kind of
weird.

But if the recording had continued playing, the jury would have
heard Macleod stating some 30 seconds later, with our emphasis,

Regardless of any views or anything like that, so.
That was the only time we had sex. It was—well, and
it was partially too like, one, she had herpes and I just—
I don’t know. I wasn’t really—I’m not trying to, you
know, get ahead of myself in that department. And,
you know, we had talked about if we were going to
see other people or not. And she said that—I think it
was the second time I came over. She like told me she was
still seeing this guy. He’s a rapper, I don’t know. And
they were having sex a lot and so—I don’t know. I
mean, that kind of made me pull away a little bit too.
I mean, that’s—I mean, that’s about it.

¶38 Based on this excerpt from the interview with Detective,
Macleod asserts that he did, in fact, identify herpes and Hannah’s
sexual relationship with the other man as reasons for the
relationship ending. He therefore argues that Counsel’s failure to
object to the prosecutor’s claims to the contrary “left the
prosecution’s misrepresentations unscathed, likely leaving the
jury with the impression that [his] sexual health-based defense
was fabricated.” And he argues that “[b]ecause the charges of
rape and object rape turned on the jury’s assessment of
[Hannah’s] and [his] credibility, failing to remedy the
prosecutor’s misstatements was objectively unreasonable.” But
even assuming, without deciding, that the comments to which

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 State v. Macleod

Macleod points amounted to prosecutorial misconduct, 9 Counsel
8F

nonetheless did not perform deficiently by not objecting.

¶39 “If it appears counsel’s actions could have been intended
to further a reasonable strategy, a defendant has necessarily failed
to show [deficient] performance.” State v. Ray, 2020 UT 12, ¶ 34,
469 P.3d 871. See id. ¶ 32 (“We must view a decision to not object
in context and determine whether correcting the error was
sufficiently important under the circumstances that failure to do
so was objectively unreasonable—i.e., a battle that competent
counsel would have fought.”). And here, we can readily conceive
of a strategic reason why Counsel would have foregone an
objection both during Macleod’s cross-examination and during
closing argument. Namely, Counsel could have decided not to
object to avoid prompting the prosecutor, particularly during
closing argument, to highlight other arguably more glaring issues
with the defense’s claim that Macleod did not wish to have sex
with Hannah on the night of the alleged assault due to his
discovery that she had herpes and a sexual relationship with
another man.

¶40 Although Macleod’s statement in the interview is
somewhat ambiguous as to whether Hannah told him that she
had herpes before or after they had sex, Macleod told Detective
that the disclosure took place during their first meeting. This
contradicted Macleod’s trial testimony that Hannah told him on
the third night, which caused him to no longer wish to have even
a casual sexual relationship with her going forward—his

9. The State argues that the prosecutor’s comments “fairly
characterized the evidence” because although “Macleod may
have mentioned once in [the] interview that herpes was one
possible reason for ending his relationship with Hannah,” he
placed greater emphasis on their political differences and that
they were not “a good match,” and he “did not make [herpes] his
entire defense [during the interview] like he did at trial.”

20220163-CA 18 2024 UT App 32
 State v. Macleod

discovery during their second meeting that she had had sex with
another man already having caused him to abandon any intention
of pursuing a serious relationship with her. If she told him about
the herpes on the first night, the fact that he met with her two
more times undercuts his health-based claim that he was no
longer interested in a sexual relationship with her following the
disclosure. In any event, regardless of what day Hannah made the
disclosure, Macleod also told Detective that he would have had
sex with her that night if she had consented, which is completely
at odds with his claim that he was no longer interested in having
sex with her after he found out about her herpes.

¶41 These blatant contradictions arguably undercut Macleod’s
health-based defense more than the alleged prosecutorial
misconduct because Macleod was able to somewhat explain his
failure to name herpes and the other man as reasons for the
relationship ending by stating that he did not wish to appear to
be “sham[ing]” Hannah “in any way.” Although he did mention
herpes in other contexts during the interview, a reasonable jury
could accept this explanation. But Macleod’s justifications for the
other contradictions were much weaker. Macleod stated that he
told Detective that he found out about the herpes on the first date,
when it was actually the third date because the interview was
“confusing.” But the prosecutor quickly rebutted this claim by
pointing out that he made the statement only four minutes into
the interview and asking whether the interview had already
become confusing at that point, to which Macleod responded,
“I’m not sure how to answer the question.” Additionally,
Macleod’s assertion that he told Detective that he was willing to
have sex with Hannah that night because he “was trying not to
focus on” Hannah’s herpes makes less sense in that context than
when he used the same explanation for not naming herpes as a
reason for the relationship ending.

¶42 In light of all this, Counsel could have reasonably decided
to forego objecting to the two instances of alleged prosecutorial

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 State v. Macleod

misconduct so as not to cause the prosecutor to place even greater
emphasis on the above-mentioned contradictions. Accordingly,
Counsel did not perform deficiently when he did not object to
either instance of alleged prosecutorial misconduct, and
Macleod’s claim of ineffective assistance therefore fails.

II. Hearsay

¶43 Hearsay is a “statement that . . . the declarant does not
make while testifying at the current trial or hearing” and that “a
party offers in evidence to prove the truth of the matter asserted
in the statement.” Utah R. Evid. 801(c). Unless otherwise
authorized by the Utah Rules of Evidence or by statute, hearsay
statements are inadmissible at trial. See id. R. 802.

¶44 Macleod argues that Counsel was ineffective for not
objecting on hearsay grounds to portions of Roommate’s and
Officer’s testimonies regarding what Hannah told them
transpired in her bedroom. He asserts that by not objecting,
Counsel “provided the State an opportunity to prove their case
through two additional witnesses.” We hold that Counsel was not
ineffective in either instance.

A. Roommate’s Testimony

¶45 At trial, Roommate testified that Hannah told him that
while she and Macleod were alone in her bedroom, “she was
falling asleep and then out of nowhere she felt something inside
her and woke up” and that “what was inside her was [Macleod’s]
fingers.” Roommate further testified, “And then a couple more
minutes later, she passed out again. But this time, instead of
hands, he flipped her over, pulled down her pants, and stuck his”
penis into her vagina.

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 State v. Macleod

¶46 Macleod argues that Counsel was ineffective for not
objecting to this inadmissible hearsay testimony. 10 But because
9F

Counsel could have elected to forego an objection for a reasonable
strategic purpose, Counsel did not perform deficiently, so this
claim of ineffective assistance of counsel necessarily fails. State v.
Ray, 2020 UT 12, ¶ 34, 469 P.3d 871 (“If it appears counsel’s actions
could have been intended to further a reasonable strategy, a
defendant has necessarily failed to show [deficient]
performance.”).

¶47 As part of his trial defense, Macleod claimed that Hannah
and Roommate fabricated the allegations against him. In support
of this theory, Counsel highlighted during closing argument the
fact that Hannah did not go to the hospital for approximately 36
hours after the alleged rape and object rape occurred, during
which time, he asserted, she and Roommate “concoct[ed]” their
story. In support of this fabrication defense, Counsel suggested
that the pair of teal underwear Hannah brought to the hospital
was the pair she wore on the day of the first meeting when she
and Macleod had consensual sex—it was not the pair she actually
wore on the night of the sexual assault. Counsel also cast doubt
on Roommate’s credibility and further promoted the fabrication
defense by pointing to Roommate’s counterintuitive response of
simply going to sleep after hearing Hannah shout at Macleod to
get off her. Counsel then rhetorically asked, “What roommate
does that?” Presumably, if Macleod had caused Hannah to yell
such a thing loud enough for Roommate to hear it through the
wall, Roommate would have checked to see if Hannah needed
help or, at the very least, stayed up a bit longer to monitor the
situation. See also infra ¶ 55.

¶48 Counsel’s cross-examination of Roommate’s account of the
rape and object rape also advanced the defense’s fabrication

10. The State does not contend that this testimony was admissible
under an exception to the hearsay rule.

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 State v. Macleod

theory. Namely, during cross, Roommate acknowledged that his
testimony regarding the rape and object rape was entirely based
on what Hannah told him and that he was not present and did not
personally witness what he was alleging occurred in the bedroom.
Roommate testifying to things he had no personal knowledge of,
and that he could not possibly know without speaking with
Hannah, thus arguably supported the defense’s assertion that the
two colluded to get their stories straight.

¶49 For this reason, because Counsel could have reasonably
decided to cross-examine Roommate regarding his hearsay
testimony rather than object to it, Counsel did not perform
deficiently by not objecting to Roommate’s testimony.

B. Officer’s Testimony

¶50 At trial, the State asked Officer to recount what Hannah
told him at the hospital. Officer answered that she told him she
had fallen asleep while watching a movie with Macleod in her
bedroom and that “approximately at 3:00 in the morning, she had
woken up with her pants down and she was being penetrated by
[Macleod]. She told him to get off. He got off her, asked if they
were okay, if everything was fine, and then left her home.” 11 10F

Shortly afterward, Officer added that Hannah told him that
Macleod’s “fingers and his penis had entered her vagina.” During
cross-examination by Counsel, Officer stated he believed Hannah
told him that both forms of penetration occurred at
“[a]pproximately” the same time.

11. Officer also testified that Hannah told him that Macleod
touched her “[b]uttocks, thighs, breasts, [and] vagina area” on the
basketball court. But because this testimony went toward the
forcible sexual abuse convictions, which we reverse on unanimity
grounds, see infra Part III, we do not discuss Macleod’s challenge
to that portion of Officer’s testimony here.

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 State v. Macleod

¶51 Macleod claims that Counsel was ineffective for not
objecting to this testimony on hearsay grounds. But even
assuming, without deciding, that this portion of Officer’s
testimony was inadmissible hearsay and that Counsel’s failure to
object amounted to deficient performance, 12 this claim of
11F

ineffective assistance nonetheless fails for lack of prejudice. See
State v. Hatch, 2019 UT App 203, ¶ 29, 455 P.3d 1103 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice that course should be followed.”) (quotation
simplified), cert. denied, 462 P.3d 801 (Utah 2020).

¶52 In arguing that Counsel’s failure to object was prejudicial,
Macleod asserts that Hannah’s testimony was the only direct
evidence of rape and object rape and thus that Officer’s
corroboration of her allegations likely affected the outcome of the
case to Macleod’s detriment. See State v. Burnett, 2018 UT App 80,
¶ 39, 427 P.3d 288 (stating that cases in which there are “no
confession, no third-party eyewitnesses, and no physical
evidence” and in which “the only direct evidence that abuse
occurred [is the alleged victim’s] testimony” are cases that are
“not strongly supported by the record”) (quotation simplified),
cert. denied, 432 P.3d 1232 (Utah 2018). But Macleod’s convictions
on these two counts were not as weakly supported by the record
as Macleod asserts. Hannah’s contemporaneous text message to
Roommate stating that Macleod “just tried to have sex with me
while I was half a sleep” and Macleod’s touch DNA on the teal
underwear corroborate her allegations to some degree. Although
Hannah’s message did not specify that Macleod inserted his
fingers and penis into her vagina, they supported Hannah’s

12. The State argues that Counsel could have reasonably
concluded that Officer’s “testimony about what Hannah told him
at the hospital about the rape and object rape was not hearsay
because it was necessary to explain his sex offense investigation.”
Because we decide this issue on prejudice grounds, we do not
address this argument.

20220163-CA 23 2024 UT App 32
 State v. Macleod

account that Macleod made some sort of unwanted sexual
advance—which could include the alleged rape and object rape—
and refuted Macleod’s testimony that he was not interested in
having sex with her that night. Additionally, the touch DNA on
the teal underwear is physical evidence that some part of
Macleod’s body came, at the very least, in very close proximity to
Hannah’s vagina.

¶53 In any event, Officer’s testimony was merely cumulative of
Hannah’s testimony. “When testimony is merely cumulative,”
“we are usually disinclined to find prejudice even when the
testimony was improperly admitted.” State v. Samples, 2022 UT
App 125, ¶ 74, 521 P.3d 526 (quotation simplified), cert. denied, 525
P.3d 1279 (Utah 2023). This is because such testimony does not
typically “offer anything new or additional to the evidentiary
picture.” Id. (quotation simplified). Although there are
conceivably situations in which the mere repetition of testimony
could prejudice a defendant, see id. ¶ 75, such is not the case here
for several reasons.

¶54 First, Officer’s account was less detailed than Hannah’s. See
id. ¶ 76. Hannah testified that while she was lying on her side in
bed with Macleod, Macleod pulled down her pants and inserted
his fingers into her vagina. After rebuking him, she “doz[ed] off,”
only to be woken up to find herself lying on her stomach, her
pants pulled down, and Macleod on top of her with his penis
inside her vagina. Officer, on the other hand, recounted only the
penetration that occurred after Hannah had fallen asleep.
Although Officer later stated that Macleod penetrated Hannah
both with his fingers and penis, the only penetration that he
detailed occurred after Hannah had fallen asleep.

¶55 This leads us to our second point. Because certain parts of
Officer’s testimony were at odds with Hannah’s testimony, it may
well have helped the defense. See id. ¶ 78. Officer stated that from
speaking with Hannah, it was his understanding that both forms

20220163-CA 24 2024 UT App 32
 State v. Macleod

of penetration occurred at “[a]pproximately” the same time.
Indeed, he testified that Hannah was penetrated only after she fell
asleep. But Hannah testified that the digital penetration occurred
while she was still awake and that the penile penetration occurred
after she had fallen into a more sleep-like state. This conflict may
well have helped bolster the defense’s fabrication theory, which is
discussed in more detail in Part II.A above. That is, a jury could
reasonably infer from this discrepancy that Hannah told Officer
one story but later changed it.

¶56 Finally, the jury heard similar testimony from Nurse.
Nurse testified that Hannah told her during the examination that
after she fell asleep, “she woke up because she was being rolled
over on her stomach and then he was penetrating her from
behind.” Because Nurse’s testimony was unchallenged both at
trial and on appeal, Officer’s testimony was also “merely
cumulative of other evidence that [Macleod] has not challenged.”
State v. Verde, 770 P.2d 116, 119 (Utah 1989). See RJW Media Inc. v.
Heath, 2017 UT App 34, ¶ 38, 392 P.3d 956 (stating that in light of
other unchallenged evidence containing “the same information”
as the challenged testimony, the appellant “cannot show that it
was prejudiced by [the] cumulative testimony”). Cf. State v.
Miranda, 2017 UT App 203, ¶ 47, 407 P.3d 1033 (“[W]hen
erroneously admitted evidence is cumulative of evidence already
before the factfinder, the error may be considered harmless.”),
cert. denied, 417 P.3d 581 (Utah 2018). Thus, in light of Nurse’s
similar testimony, a successful objection to Officer’s hearsay
testimony would not have prevented the negative impact to the
defense Macleod claims on appeal to have suffered.

¶57 For these reasons, we are not convinced that Officer’s
“brief recitation of certain portions of [Hannah’s] testimony
would have persuaded the jury to give her testimony any more or
less credence.” Samples, 2022 UT App 125, ¶ 81. We therefore hold
that any error on Counsel’s part for not objecting to Officer’s

20220163-CA 25 2024 UT App 32
 State v. Macleod

alleged hearsay testimony was not prejudicial, and this claim of
ineffective assistance fails.

III. Unanimity Instruction

¶58 Macleod argues that Counsel was ineffective for not
requesting that the jury be fully instructed on unanimity for the
two forcible sexual abuse charges. 13 We agree.
12F

¶59 The Utah Constitution directs that “[i]n criminal cases the
verdict shall be unanimous.” Utah Const. art. I, § 10. To satisfy this
constitutional requirement, it is insufficient for a jury to
unanimously find “only that a defendant is guilty of a crime” and
render “a generic ‘guilty’ verdict that does not differentiate
among various charges.” State v. Hummel, 2017 UT 19, ¶ 26, 393
P.3d 314 (emphasis in original; quotation otherwise simplified).
Rather, it “is well-established in our law” that a jury must be
unanimous “as to a specific crime” and “on all elements of a
criminal charge.” Id. ¶¶ 28–30 (quotation simplified). For
example, a verdict would not be unanimous “if some jurors found
a defendant guilty of a robbery committed on December 25, 1990,
in Salt Lake City, but other jurors found him guilty of a robbery
committed January 15, 1991, in Denver, Colorado, even though
. . . all the jurors together agreed that he was guilty of some
robbery.” State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951.

¶60 Thus, where evidence is presented that the defendant
committed more distinct criminal acts than what the defendant
was charged with, “the jury must be unanimous as to which act
or incident constitutes the charged crime.” State v. Case, 2020 UT
App 81, ¶ 21, 467 P.3d 893 (quotation simplified), cert. denied, 474

13. Macleod also argues that the trial court plainly erred by failing
to properly instruct the jury on unanimity. Because we reverse
both of his forcible sexual abuse convictions on ineffective
assistance of counsel grounds, we need not address this
additional argument.

20220163-CA 26 2024 UT App 32
 State v. Macleod

P.3d 948 (Utah 2020). “[T]o ensure unanimity in such
multiple-acts cases, the jury instructions must either (1) link an
alleged criminal act to a charge or (2) inform the jury that it must
unanimously agree that the same alleged criminal act has been
proven beyond a reasonable doubt.” State v. Gollaher, 2020 UT
App 131, ¶ 32, 474 P.3d 1018, cert. denied, 481 P.3d 1040 (Utah
2021). Such instruction is “critical to ensuring unanimity.” State v.
Alires, 2019 UT App 206, ¶ 23, 455 P.3d 636, cert. denied, 466 P.3d
1076 (Utah 2020). Otherwise, “the jurors could have completely
disagreed on which acts occurred or which acts were illegal,” id.,
“thereby effectively lowering the State’s burden of proof at trial,”
State v. Granere, 2024 UT App 1, ¶ 38, petition for cert. filed, Feb. 12,
2024 (No. 20240134). See Alires, 2019 UT App 206, ¶ 25.

¶61 Here, the State charged Macleod with two counts of
forcible sexual abuse. Under the relevant elements of the crime,

an actor commits forcible sexual abuse if . . . without
the consent of the individual, the actor:

(A) touches the anus, buttocks, pubic area, or any
part of the genitals of another individual;

(B) touches the breast of another individual who is
female; or

(C) otherwise takes indecent liberties with another
individual[.]

Utah Code Ann. § 76-5-404(2) (LexisNexis Supp. 2023). Notably,
“each unlawful touch of an enumerated body part (or each
unlawful taking of indecent liberties) constitutes a separate
offense of” forcible sexual abuse. Alires, 2019 UT App 206, ¶ 21. 14 13F

14. In State v. Alires, 2019 UT App 206, 455 P.3d 636, cert. denied,
466 P.3d 1076 (Utah 2020), this court was specifically discussing
(continued…)

20220163-CA 27 2024 UT App 32
 State v. Macleod

In other words, the forcible sexual abuse statute “contains
alternative actus reus elements by which a person could be found
guilty of sexual abuse.” Id. (quotation simplified).

¶62 The verdict form in this case specified that one count of
forcible sexual abuse was for illegal “touching of the breast,” and
the second was for illegal “touching of the buttocks.” But between
Hannah’s and Roommate’s testimonies, the jury heard testimony
that Macleod touched Hannah’s breasts and buttocks without her
consent at the grocery store (breasts and buttocks), on the
basketball court (breasts and buttocks), and in Hannah’s bedroom
(buttocks). Thus, the jury heard more than one allegation that
could satisfy each count.

¶63 Additionally, the jury instructions were insufficient to
satisfy the constitutional unanimity requirement for the two
forcible sexual abuse counts. Jury Instruction 34 stated, in relevant
part, “Open discussion should help you reach a unanimous
agreement on a verdict”; “Try to reach unanimous agreement, but
only if you can do so honestly and in good conscience”; and
“Because this is a criminal case, every single juror must agree with
the verdict before the Defendant can be found ‘guilty’ or ‘not
guilty.’” Jury Instruction 35 also referenced unanimity, stating,
“Once the jury has reached a unanimous verdict, the foreperson
is responsible for filling out and signing the verdict form on behalf
of the entire jury,” and “The foreperson will fill in the appropriate
blank [on the verdict form] to reflect the jury’s unanimous
decision.” None of these instructions specifically “link[ed] an
alleged criminal act to a charge” or “inform[ed] the jury that it

the sexual abuse of a child statute. But other than additionally
requiring nonconsent, the relevant elements of the forcible sexual
abuse statute are identical to that of the sexual abuse of a child
statute. Compare Utah Code Ann. § 76-5-404.1(2) (LexisNexis
Supp. 2023) (sexual abuse of a child), with id. § 76-5-404(2) (forcible
sexual abuse).

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 State v. Macleod

must unanimously agree that the same alleged criminal act has
been proven beyond a reasonable doubt,” Gollaher, 2020 UT App
131, ¶ 32, which was “critical to ensuring unanimity,” Alires, 2019
UT App 206, ¶ 23. “And this court has repeatedly held that failure
to request a proper unanimity instruction constitutes deficient
performance.” Granere, 2024 UT App 1, ¶ 38. See, e.g., id.; State v.
Garcia-Lorenzo, 2022 UT App 101, ¶ 40, 517 P.3d 424, cert. granted,
525 P.3d 1263 (Utah 2022); State v. Baugh, 2022 UT App 3, ¶ 19, 504
P.3d 171, cert. granted, 525 P.3d 1257 (Utah 2022); Alires, 2019 UT
App 206, ¶¶ 24–25.

¶64 The State argues that “competent counsel could reasonably
conclude that a request for additional instructions was
unnecessary here because the prosecutor elected to tie specific acts
to each specific charge in closing argument.” But this argument
relies on the assumption that the prosecutor “cured” any
inadequacy in the jury instructions during closing argument. Our
Supreme Court recently held that counsel may reasonably “rely
on the State’s clear identification” of the sole alleged act that a jury
may consider as the basis for conviction on a certain count in lieu
of requesting additional unanimity instructions. State v. Paule,
2024 UT 2, ¶ 82 (emphasis added). Alternatively, the Court held
that reasonable counsel may forego seeking specific unanimity
instructions to avoid “broaden[ing] the State’s arguments against
[the defendant] to his detriment.” Id. ¶ 74. Put differently,
reasonable counsel could conclude that the State elected to put all
its eggs in one basket and that the introduction of proper
unanimity instructions could prompt the State to introduce
alternative alleged acts for the jury to consider as a basis for
conviction. See id. ¶ 76. But this is not the case here. As discussed
in greater detail below, the prosecutor’s closing argument did not
clearly identify for the jury which alleged touch it was limited to
considering for each of the forcible sexual abuse counts.
Accordingly, Counsel performed deficiently in failing to request
that the jury receive sufficient unanimity instructions.

20220163-CA 29 2024 UT App 32
 State v. Macleod

¶65 We next turn to whether that deficient performance
prejudiced Macleod. “[W]e have rejected ineffective assistance
claims on prejudice grounds in two types of jury unanimity
cases.” Garcia-Lorenzo, 2022 UT App 101, ¶ 49. The first instance is
when “we have concluded that the State made clear, in closing
argument or elsewhere, which act went with each count, and
therefore a specific instruction on jury unanimity would not have
changed the outcome of the case.” Id. The second instance is when
“we have concluded that, for various case-specific reasons, the
outcome of the case would not have changed had the jury been
given a specific jury unanimity instruction.” Id. ¶ 50.

¶66 Our main focus is on whether the instant appeal falls under
the first set of cases, i.e., whether the State’s closing argument
mitigated the prejudicial effect of Counsel’s failure to request a
proper unanimity instruction. Although the State may alleviate
the prejudice caused by insufficient unanimity instructions by
providing such guidance “in closing argument or elsewhere,” see
id. ¶ 49, it must do so by “clearly identif[ying] for the jury which
factual circumstance formed the basis for [the] charge,” State v.
Paule, 2021 UT App 120, ¶ 48, 502 P.3d 1217 (emphasis added),
aff’d, 2024 UT 2. See Granere, 2024 UT App 1, ¶¶ 45–46;
Garcia-Lorenzo, 2022 UT App 101, ¶¶ 49, 52–53; Alires, 2019 UT
App 206, ¶ 22. Here, because there was some ambiguity in the
prosecutor’s closing argument on this point, the argument “fell
short of sufficiently and clearly instructing the jury regarding
which act corresponded with” which forcible sexual abuse count.
Garcia-Lorenzo, 2022 UT App 101, ¶ 52.

¶67 During closing argument, in referencing the two forcible
sexual abuse counts, the prosecutor stated,

Count 3 and 4 are the same elements but for
different actions. The defendant touched
[Hannah’s] breast and touched her buttocks without
her consent. This occurred on the basketball court.

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 State v. Macleod

[Hanna] and [Roommate] described the defendant
repeatedly touching and groping [Hannah’s]
bottom, specifically her breasts and buttocks. He did
so just by being told to stop in the store and then
being told to stop again while playing basketball.

¶68 Pointing to this statement, the State argues that “[t]he jury
was instructed on general unanimity principles” because “[t]he
prosecutor told the jury that the two forcible sexual abuse counts
occurred ‘on the basketball court’ when Macleod ‘touched
[Hannah’s] breast and touched her buttocks without her
consent.’” Concerning the statement’s mention of “the store,” the
State asserts that “[t]he prosecutor was only referencing how
Macleod was ‘told to stop in the store’ to provide context for the
lack of consent to the criminal touches later ‘while playing
basketball.’” Macleod, on the other hand, asserts that the State did
not mitigate prejudice because “[w]hile the prosecutor said the
actions ‘occurred on the basketball court,’ in the next sentence she
said it happened ‘in the store’ and ‘while playing basketball.’”
Thus, quoting Garcia-Lorenzo, he asserts that “it is entirely possible
(and perhaps even likely) that the jury simply understood the
prosecutor to be saying that, because [the forcible sexual abuse]
allegedly happened on multiple occasions, it was more likely to
have also happened on [the basketball court].” See 2022 UT App
101, ¶ 52.

¶69 Absent the mention of “the store” during that portion of
closing argument, the statement likely would have mitigated any
prejudice resulting from Counsel’s deficient performance. See
Paule, 2021 UT App 120, ¶¶ 45, 48 (holding that the prosecutor
“clearly identified for the jury which factual circumstance formed
the basis for its obstruction of justice charge” when he stated
during his opening statement “that the obstruction count was for
when . . . Paule took that shotgun, and threw it off the balcony in
order to hinder, delay, or prevent the investigation,” and when,
during closing argument, he “reemphasized that the obstruction

20220163-CA 31 2024 UT App 32
 State v. Macleod

charge was for when Paule threw the gun over the balcony”)
(quotation simplified). But the somewhat confusing reference to
“the store” muddied the waters, rendering the statement
insufficiently clear to “cure” the prejudice resulting from
Counsel’s failure to request an adequate unanimity instruction.

¶70 Even if the State is correct that the prosecutor referenced
“the store” incident for the purpose of demonstrating lack of
consent, the phrasing was confusing. 15 The sentence, “He did so
14F

just by being told to stop in the store and then being told to stop
again while playing basketball,” without more, does not explicitly
inform the jury that the prosecutor had switched gears from
discussing unanimity to discussing consent. Furthermore,
without specific mention of “consent,” members of the jury could
have understood the phrase “He did so” to reference the unlawful
touches for which Macleod was charged and thus to also include
any touches that took place at the grocery store as well as on the
basketball court. Thus, at the very least, the purpose for which the
prosecutor mentioned “the store,” especially when delivered
through the medium of speech, was subject to reasonable
misinterpretation. See Garcia-Lorenzo, 2022 UT App 101, ¶ 52
(stating that “it is entirely possible” for the jury to have
understood the prosecutor’s statement to mean something other
than what the State was arguing on appeal). For these reasons, we
hold that the State’s closing argument did not sufficiently clarify
for the jury that the two counts of forcible sexual abuse were
limited to unlawful touching of the breasts and buttocks that
occurred on the basketball court, and thus the State failed to
mitigate the prejudice Macleod suffered as the result of Counsel’s
deficient performance.

¶71 Additionally, the evidence supporting the two forcible
sexual abuse convictions was “not so overwhelming that we can

15. On appeal, we have the benefit of parsing a transcript of the
statement. The jury, however, did not have that opportunity.

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 State v. Macleod

conclude that the jury must have unanimously agreed on [the
same] act—as opposed to [other alleged acts]—as the basis for its
conviction” on those counts. State v. Baugh, 2022 UT App 3, ¶ 22,
504 P.3d 171, cert. granted, 525 P.3d 1257 (Utah 2022). See Strickland
v. Washington, 466 U.S. 668, 696 (1984) (“[A] verdict or conclusion
only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.”).
“Our supreme court has described convictions in” cases where
“there was no confession, no third-party eyewitnesses, and no
physical evidence” as “not strongly supported by the record.”
State v. Burnett, 2018 UT App 80, ¶ 39, 427 P.3d 288 (quotation
simplified), cert. denied, 432 P.3d 1232 (Utah 2018). See State v.
Saunders, 1999 UT 59, ¶ 13, 992 P.2d 951 (noting, among other
things, the lack of physical evidence or third-party witnesses
corroborating the victim’s testimony in that case). Here, there was
no confession and no physical evidence corroborating Hannah’s
allegations of forcible sexual abuse. 16 And although Roommate
15F

corroborated certain portions of Hannah’s testimony, Roommate
also contradicted her testimony in ways that have potentially
significant unanimity implications.

¶72 Hannah’s and Roommate’s testimonies were “conflicting
. . . as to which acts occurred,” State v. Alires, 2019 UT App 206,
¶ 28, 455 P.3d 636, cert. denied, 466 P.3d 1076 (Utah 2020), at the
grocery store and which on the basketball court. 17 Namely,
16F

16. Because Hannah testified the alleged touching at the store and
on the basketball court occurred over the clothes, the touch DNA
found on the teal underwear was not attributable to the alleged
forcible sexual abuse.

17. For purposes of this argument, we assume that the jury
understood the State’s closing argument to limit its consideration
to allegations of nonconsensual touching that occurred at the
grocery store and on the basketball court, to the exclusion of the
allegations of touching that Hannah alleged occurred on her bed.

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 State v. Macleod

Hannah testified that at the grocery store, Macleod’s “hands did
kind of touch my butt, but it wasn’t like grabbing it,” whereas
Roommate testified that he saw Macleod “[g]roping breasts,
thighs, and sides.” And on the basketball court, Hannah testified
that Macleod grabbed her by the waist, touched her buttocks over
the clothes, and at one point touched her breasts, 18 but Roommate
17F

testified that he saw Macleod grope her inner thighs and “breast
area.” Thus, although Roommate’s testimony corroborated
Hannah’s general allegations that Macleod touched her, it largely
contradicted her account when it came to specifics. Depending on
whose testimony the individual jurors credited, it is entirely
possible that they disagreed on which touches occurred where,
even if they unanimously agreed that unlawful touches occurred
at one location or another. See generally id. ¶ 29 (“Where the
evidence is so readily subject to different interpretations, we are
not persuaded that the jury would have unanimously convicted
had the error not existed.”) (quotation simplified); id. ¶¶ 28–29
(holding that the defendant was prejudiced by erroneous
unanimity instructions where the evidence supporting the
conviction “was not overwhelming,” the testimony “was
conflicting . . . as to which acts occurred,” and “the surrounding
circumstances were sufficiently ambiguous”). And although
Hannah and Roommate both testified that Macleod touched her
breasts while on the basketball court, the factual issue remained
as to whether that touch was intentional, given that Hannah said
they were playing a game of basketball and Macleod said they
were playing HORSE at the time of the touch.

¶73 In sum, Macleod has established that he was prejudiced by
Counsel’s failure to request more specific unanimity instructions
on the two forcible sexual abuse counts. We accordingly reverse

18. Officer additionally testified that Hannah told him at the
hospital that on the basketball court, Macleod “kept trying to grab
her . . . private areas: Buttocks, thighs, breasts, vagina area.”

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 State v. Macleod

those convictions and remand the case for a new trial on those
counts.

IV. Cumulative Error

¶74 Macleod also argues that the cumulative effect of multiple
instances of Counsel’s deficient performance was prejudicial. “A
reviewing court will reverse a jury verdict under the cumulative
error doctrine only if the cumulative effect of the several errors
undermines confidence that a fair trial was had.” State v. Killpack,
2008 UT 49, ¶ 56, 191 P.3d 17 (quotation simplified). Although we
reversed his two forcible sexual abuse convictions on ineffective
assistance grounds, the prejudice Macleod suffered from
Counsel’s failure to request a proper unanimity instruction was
limited to those convictions. The lack of a proper unanimity
instruction on the forcible sexual abuse counts had no prejudicial
effect on his rape and object rape convictions. 19 We also held that
18F

Counsel did not perform deficiently by not objecting to alleged
prosecutorial misconduct or to Roommate’s hearsay testimony.
This leaves only Macleod’s claim that Counsel was ineffective for
not objecting to Officer’s alleged hearsay testimony. We decided
that issue on prejudice grounds, holding that the alleged error
was not prejudicial. Thus, there are no errors to accumulate, and
this argument therefore necessarily fails. See State v.
Martinez-Castellanos, 2018 UT 46, ¶ 40, 428 P.3d 1038 (stating that
the cumulative error “doctrine will not be applied when claims

19. As noted above, we do not reach the merits of Macleod’s claim
that Counsel was ineffective for not requesting lesser included
offense jury instructions on the forcible sexual abuse counts. See
supra note 7. We also need not do so for the purposes of this
cumulative error argument because, as with the ineffective
assistance claim related to the lack of sufficient unanimity
instructions, any prejudice would be limited to the forcible sexual
abuse convictions and not extend to the remaining rape and object
rape convictions.

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 State v. Macleod

are found on appeal to not constitute error, or the errors are found
to be so minor as to result in no harm”) (quotation simplified).

CONCLUSION

¶75 Because Counsel was not ineffective for not objecting to
comments that allegedly amounted to prosecutorial misconduct
or to inadmissible hearsay testimony, we affirm Macleod’s rape
and object rape convictions. But because Counsel was ineffective
for not requesting sufficient unanimity instructions on the two
forcible sexual abuse counts, we reverse those convictions and
remand for a new trial on those counts.

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