Background
Jeremy Brad Bauer was indicted on three counts of lewd conduct with a child under sixteen. The State organized the counts primarily by location: the victim’s mother’s apartment, Bauer’s home, and Bauer’s vehicle. The victim testified to multiple alleged acts at Bauer’s home, including conduct in the living room, spare bedroom, crawl space, bathroom area, and hot tub.
At trial, Bauer generally denied ever touching the victim inappropriately. The jury acquitted him on Counts I and III but convicted him on Count II, which alleged manual-to-genital and oral-to-genital contact at Bauer’s home. The district court did not give a specific unanimity instruction for Count II, and Bauer neither requested one nor objected to its omission.
The Court’s Holding
The Idaho Court of Appeals held that the omission of a specific unanimity instruction on Count II was fundamental error. Where evidence shows multiple discrete acts that could each support a charged offense, the jury must be instructed that it must unanimously agree on one particular incident supporting guilt.
The State conceded that Bauer established the first two fundamental-error requirements: a violation of his right to a unanimous verdict and an error clear from the record. The court concluded that the omission also affected the verdict. Unlike prior cases in which juries convicted on every count and therefore plainly credited the victim’s testimony, this jury acquitted Bauer on the two counts tied to single incidents and convicted only on Count II, for which the State expressly invited conviction based on any one of several incidents in the home. The court could not conclude beyond a reasonable doubt that the jurors agreed on a single event.
Key Takeaways
- A specific unanimity instruction is required when trial evidence presents more discrete criminal acts than the charged count encompasses.
- The instruction is required even without a defense request.
- Mixed verdicts may defeat a claim that the missing instruction was harmless because they do not establish that the jury accepted all of the victim’s allegations.
Why It Matters
The decision underscores that a single count cannot rest on a collection of alleged acts unless the jury is directed to unanimously select the same act. Prosecutors charging repeated abuse across multiple locations or occasions must either distinguish the incidents through charging decisions or ensure the jury receives a proper unanimity instruction.
The court vacated Bauer’s Count II conviction and remanded for a new trial on that count.