STATE v. WAHLSTROM (2026)

Opinion

¶1 Mark Allan Wahlstrom was arrested when officers found him intoxicated and sitting in the driver seat of a truck parked in the mountains with the key in the ignition. At trial, his counsel (Counsel) argued that Wahlstrom had not been in actual physical control of the truck, as required for the driving-under-the-influence crime (DUI) with which he was charged. After deliberating for some time, the jury did not reach a consensus on DUI, and the court gave the jury an Allen charge ¹ to encourage it to reach a verdict. The jury subsequently convicted Wahlstrom of DUI, among other things. Wahlstrom appeals, arguing that Counsel performed deficiently by failing to object to the Allen charge because it was coercive. We agree that the Allen charge was coercive and that Counsel's failure to object constituted ineffective assistance. We therefore reverse Wahlstrom's conviction for DUI and remand this matter for a new trial or other proceedings as may be appropriate on that charge. Wahlstrom does not challenge his other convictions, and we do not disturb them.

¶2 Wahlstrom also asserts that the trial court erred by not correcting an alleged error in his presentence investigation report (PSI). Because Wahlstrom's other convictions stand, our decision on the DUI charge does not render this issue moot, and the State concedes error on this issue. Thus, we remand this matter for the additional limited purpose of the trial court appropriately addressing the apparent error in the PSI.

BACKGROUND 2

Wahlstrom and a Friend Drive into the Mountains

¶3 One day in October 2021, Wahlstrom and an “old friend”—Sadie ³ —agreed to “hang out.” Sadie “was going through a breakup” and “needed a friend ․ to talk to,” so the two headed into the mountains in Wahlstrom's work truck. The pair eventually made it “pretty far up” the mountain. At some point while Sadie and Wahlstrom were together, three other things occurred: Sadie began drinking alcohol, Wahlstrom “pulled out a bottle of vodka from the back and started drinking it,” and the pair parked the truck.⁴ After they got into an argument, Wahlstrom pushed Sadie out of the truck. Sadie walked down one portion of the mountain, received a ride down another portion from passersby, and then called the police.

Officers Speak with Sadie and Find and Arrest Wahlstrom

¶4 Officers came to Sadie's location and spoke with her. She told them she was intoxicated, and they noticed signs of intoxication in her appearance and behavior. She related that she had come up the mountain with a friend, that they “did ․ some shots,” and that “at one point, there [was] a verbal altercation.” She also stated that “she was not the one driving, ․ her friend was” and that after pushing her from the vehicle, he “had continued up the mountain.” She gave officers a description of her friend's work truck, though she was reluctant to provide his name.

¶5 When asked about the drinking the pair had done, Sadie “point[ed] up to the mountain” and said, “We just drank up there.” After officers explained the risks associated with her friend driving down the mountain while intoxicated and asked if her friend “is DUI,” Sadie responded, “I can't say that he is.” She added, “He wasn't drinking and driving today. We started drinking up on the mountain.”

¶6 One officer (Sergeant) gave Sadie a ride down the remainder of the mountain, while another (Deputy) waited to see if the vehicle Sadie had described came down the mountain. During the drive, Sadie provided Wahlstrom's name to Sergeant, who passed it on to Deputy. Deputy performed a records check and discovered that Wahlstrom had a suspended driver license and was required to use an ignition interlock device. Once Sergeant returned from dropping Sadie off, he and Deputy headed up the mountain to try to locate Wahlstrom. They split up at a fork, and Deputy eventually came upon the described truck, which was located about eight miles from where officers had met with Sadie.

¶7 The truck was “pulled to the side of the road facing south with its lights on.” Deputy parked behind the truck, turned on his overhead white lights, and approached the truck on foot. “The window was rolled down on the driver's side, and [Deputy] was able to identify, by the picture that was on the driver's record, that” Wahlstrom was the person sitting in the driver seat. Wahlstrom was awake, “[a]ppeared to be listening to music,” and was looking at his phone. The truck's engine was not running. Deputy asked Wahlstrom to step out of the vehicle, but Wahlstrom did not immediately comply, so Deputy “opened the door to further persuade him out of the vehicle.” Upon opening the door, Deputy noted that “[t]he keys were in the ignition ․ and the door chime was going off.” Deputy saw no interlock device in the truck. He “could smell the heavy odor of alcohol ․ emitting [from] the vehicle.” Wahlstrom turned the key to the off position and then put the key “to his right side either on the seat or on the center console.”

¶8 Wahlstrom got out of the truck, and Deputy asked him to perform field sobriety tests, but he refused. As Deputy moved Wahlstrom to the front of Deputy's vehicle, Deputy noticed that Wahlstrom “had kind of glazed, glossy eyes” that were “kind of [drooped] down low,” as well as slurred speech, and that while he walked he was taking “swaying, stuttered steps” and appeared unable “to maintain his balance.” Deputy “could smell [alcohol] emitting from his person and from his breath.” Deputy handcuffed Wahlstrom and informed him that he was under arrest. Wahlstrom argued that he was just “sitting in the truck ․ while ․ waiting for a ride,” though he would not provide the name of the driver he was waiting for. He said the key was “in the car” but “not in the ignition.” He also said that Sadie was the one who had driven the truck up the mountain. Deputy placed Wahlstrom inside Deputy's vehicle and transported him to jail, where Deputy obtained a warrant for a blood draw. Wahlstrom's blood alcohol concentration (BAC) was .17.

¶9 Sergeant performed an inventory of Wahlstrom's truck and found, among other things, a “large” bottle of vodka “[i]n the back seat, underneath the passenger seat in the rear.” The bottle was about half empty.

Opening Statements at Trial Focus on Actual Physical Control

¶10 Wahlstrom was charged with DUI, operating or being in actual physical control of a vehicle without an ignition interlock device, driving on a suspended license (alcohol-related), and having an open container of alcohol in a vehicle.

¶11 The case proceeded to a jury trial, which was scheduled for two days. From the attorneys’ opening statements, it was clear that the chief issue would be whether Wahlstrom had been in actual physical control of the vehicle. Specifically, the State told the jury:

What you're not going to hear today is some sort of driving pattern․ What you are going to hear is that [Wahlstrom] was in actual physical control of the vehicle․ DUI, it's a unique law. It's preventative and reactionary, but this is a preventative portion of it[,] [t]hat if you are in actual physical control of the vehicle and you are intoxicated, you are DUI.

¶12 Similarly, Counsel said that the defense was “not disputing that [Wahlstrom] was drunk” but that the jury was “going to have to decide ․ actual physical control.” He asserted that the evidence would show that “[n]obody drank until they got up on the mountain” and that the “truck [was] parked in the mountains” for several hours while “Wahlstrom had the opportunity to drive his truck down” but did not do so. Counsel informed the jury that a witness—a different friend of Wahlstrom's (Friend)—would “testify that [Wahlstrom] had called him and asked him to come get [Wahlstrom]” and that Friend confirmed he would pick Wahlstrom up after getting off work and would bring his girlfriend to drive Wahlstrom's truck down the mountain. Then Counsel stated, “[T]hat's the sole issue here ․ He was drunk, sitting in the truck, but he wasn't going to drive anywhere. That's the defense position.”

The Jury Hears Testimony and Evidentiary Stipulations

¶13 The State called Sadie as a witness, and she testified that Wahlstrom picked her up from her house in his work truck so the pair could hang out. She said she “wanted a drink” so—before heading to the mountains—Wahlstrom drove her to a store, where she purchased “a small bottle” of what she later recollected to have been whiskey—“the cheapest one [she] could find.” She said she began drinking this while Wahlstrom drove and that at no point did she share any with Wahlstrom. Instead, she testified, Wahlstrom pulled out the vodka and began drinking it while the pair “were on [their] way up the mountain.” She continued, “I got really frustrated, and I didn't understand why he was drinking and driving. I didn't know that he was going to be drinking and driving. That's why I got upset. And I asked him not to drink ․” When asked how he responded to that request, Sadie replied, “He said, ‘Don't worry about it. I'm fine.’ ” She testified that she told him, “I don't think that it's a good idea for [you] to be doing that, especially [because] it's dangerous, ․ we're in the mountains, and I don't want to be put in harm's way.” She said the two argued and then “[h]e pushed [her] out of the truck.”

¶14 On cross-examination, Counsel suggested that Sadie had driven her car to Wahlstrom's house and then had been the one to drive the truck. Sadie countered, “I never drove his truck.” She reiterated that she began drinking before Wahlstrom did—and before the pair got to the mountain—and that he began drinking “once [they] got up to the mountain,” “while [he was] driving the vehicle” “up the dirt road.” Counsel asked, “But at the time when you talked to [Deputy], you said, ‘We didn't start drinking until we got up on top of the mountain’?” Sadie replied, “I—I'm sorry if I—I think I was drinking before we got up there.” Sadie also stated that the pair “were parked for a little bit and talking” before Wahlstrom “pushed [her] out of the truck.”

¶15 The State called Deputy and Sergeant as witnesses, and they testified in accordance with the facts recounted above. Additionally, Deputy estimated that an hour and a half to two hours passed between when Sergeant drove Sadie down the mountain and when Deputy found Wahlstrom. Sergeant testified that he had searched Sadie before giving her a ride and had not located a bottle of whiskey on her. The State presented bodycam footage of Deputy's interactions with Wahlstrom and Sergeant's inventory of the truck.

¶16 After the State presented its evidence, the court took a recess, during which the attorneys decided that the presentation of evidence could be completed that day through evidentiary stipulations. When the jury returned, the court announced the parties’ stipulation that Friend would have testified that he had a long friendship with Wahlstrom; that Wahlstrom called him, asking for a ride down the mountain; and that he told Wahlstrom he would be there around 8:00 p.m., after he got off work. The parties also stipulated that at the time of these events, Wahlstrom's license had been suspended for an alcohol-related offense and Wahlstrom was an ignition interlock restricted driver. Finally, the parties stipulated that Wahlstrom's BAC was .17. After the court informed the jury of the stipulations, both sides rested.

Jury Instructions Define DUI and Actual Physical Control

¶17 The court then read the closing jury instructions. Instruction 49 provided the elements of DUI as follows:

I. The defendant, [Wahlstrom], either operated a vehicle, or was in actual physical control of a vehicle;

AND

II. The defendant, [Wahlstrom]:

a. Had sufficient alcohol in his body that a subsequent chemical test showed that the defendant had a blood or breath alcohol concentration of .05 grams or greater at the time of the test[.]

¶18 Instruction 53 read, in relevant part:

2. In determining actual physical control under the totality of the circumstances, no single factor is dispositive. Some factors may include:

a. Whether the person was asleep or awake when discovered

b. The position of the automobile

c. Whether the automobile's motor was running

d. Whether the person[ ] was positioned in the driver's seat of the vehicle

e. Whether the person was the vehicle's sole occupant

f. Whether the person had possession of the ignition key

g. The person's apparent ability to start and move the vehicle

h. How the car got to where it was found; and

i. Whether the person drove it there.

3. A person need not actually move, or attempt to move, a vehicle in order to have actual physical control; the person only needs to have the apparent ability to start and move the vehicle.

Closing Arguments Focus on Actual Physical Control

¶19 The parties then made their closing arguments. The prosecutor began by thanking the jurors for their patience and saying, “I apologize. We're going to keep you a little late. Hope that you will forgive us because we're giving you tomorrow off.” The prosecutor then walked through the elements of each charge and the evidence that supported each element. Based on the stipulated and undisputed facts, the prosecutor asserted that all that was really at issue was whether Wahlstrom had actual physical control of the truck, and the prosecutor argued that Wahlstrom did because “[l]iterally nothing” was stopping him from turning on the truck.

¶20 When it was Counsel's turn, he also acknowledged that it had “been a long day.” He said, “I'm going to try to move through this pretty quick so we can get the day over with.” Counsel conceded that Wahlstrom was guilty of the open container charge. Beyond that, he argued that Sadie was not credible based on her intoxication and the differences between her story on the day of the events and her testimony in court. Accordingly, he encouraged the jury to accept Wahlstrom's statement that Sadie was the one who drove up the mountain and to find that Wahlstrom did not drink until they were parked in the mountains. Regarding the DUI charge, Counsel argued:

When you look at the totality of circumstances in this case, I think it cuts against that ․ Wahlstrom was in actual physical control of the vehicle.

Think about [it.] [H]e's sitting in that truck. And I think [Deputy] said about one and a half hours—from the time [the officers] made contact [with Sadie], [took] her down and then [went] up, there's one and a half hours. He could have dr[iven] home. He didn't. There's an eight-mile difference. He could have dr[iven] down the mountain. He didn't.

․

The State stipulated to the testimony that [Friend] was his buddy that had been called and was on his way to go up there and get him. And so he was waiting in his car for a ride to come get him, so he didn't have to drive home.

The Jury Poses Several Questions to the Court

¶21 The court excused the jury to deliberate at 6:37 p.m., saying, “You're going to go back to the jury room. You are to deliberate and discuss matters ․ and reach a verdict. Do whatever you need to to accomplish that.”

¶22 At 7:59 p.m., the court and attorneys held a telephone conference about two questions the jury had submitted: “When were rights read to the defendant?” and “Is that an issue to consider?” After this conference, the court responded to the jury, “[T]hat is not an issue to consider. The evidence and instructions as provided are all you are to consider.”

¶23 At 8:43 p.m., the attorneys met in chambers with the court regarding another message from the jury. This one read, “If the instructions stipulate ‘physical control’ on Count 1, why is there no reference to it on the actual verdict? But are we required to use the instructions to make our argument?” On the back of the page, the jury provided further explanation, saying, “Some of us are not comfortable voting on an inconsistency of the language in the instructions and the verdict form.” Based on the jury's questions, the attorneys and court realized that the verdict form for the DUI charge inadvertently contained a recitation of the elements of DUI, while the verdict forms for the other charges contained no such recitations, and they agreed to alter the verdict form for the DUI charge to remove the recitation of the elements.⁵ During this discussion, the bailiff said, referring to the verdict form for the DUI charge, “I only need that one because they've already come to an agreement on the other two and signed that.”⁶ The court sent the following response to the jury: “The verdict form for count one has been revised. There is no stipulation regarding the elements[.] But they are not in the verdict form. The elements are only noted in [I]nstruction 49.”

¶24 The revised verdict form for count one made no mention of actual physical control, saying only:

We, the Jurors impaneled in the above case, find [Wahlstrom] ․

_ NOT GUILTY of DRIVING UNDER THE INFLUENCE OF ALCOHOL

OR

_ GUILTY of DRIVING UNDER THE INFLUENCE OF ALCOHOL.

In contrast, the verdict form for count two mentioned actual physical control, referring to the charge as “OPERATING OR BEING IN ACTUAL PHYSICAL CONTROL OF A VEHICLE WITHOUT AN IGNITION INTERLOCK SYSTEM.”

¶25 At 9:20 p.m., the court and attorneys again met in chambers regarding two new jury questions: “[I]s actual physical control considered driving?” and “Should we consider 49(I) in jury instructions even though it doesn't show on the verdict form?”⁷ The court's response to the first question was, “This is not a driving case. For actual physical control see [I]nstruction 53 for the definition of ‘actual physical control.’ ” Its response to the second question was, “The verdict form represents your conclusions after considering [I]nstruction 49 in its totality.”

The Court Gives the Jury an Allen Charge

¶26 At 10:10 p.m., the attorneys again met in chambers, and the court said on the record, “[The attorneys] have been in consultation with the [c]ourt after we were advised by [the bailiff] that the jury had not come to a total consensus as to how to move forward. Counsel[⁸ ] undertook some investigation and located a [case] ․ [t]hat contained an appropriate Allen charge, which we have now reduced to writing, and we'll deliver it to the jury, and see if this helps them in that regard.” The prosecutor indicated that the charge was taken from State v. Dalton, 2014 UT App 68, 331 P.3d 1110. But the court provided the jury with only a portion of the Allen charge that was given in Dalton. The charge that the court used here stated, in full:

If a larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his or her own mind is a reasonable one if it makes no impression on the minds of so many other jurors who are equally honest and intelligent and have heard the same evidence and taken the same oath. On the other hand, if a larger number of your panel are for an acquittal, the minority should ask themselves whether they ought to reasonably doubt seriously the correctness of judgment which is not concurred in by most of those with whom they are associated, and distrust the weight and sufficiency of that evidence which fails to carry conviction to the minds of their fellow jurors.

¶27 At 10:21 p.m., the jury returned with a verdict, finding Wahlstrom guilty on all charges.

The Court Fails to Resolve an Alleged Inaccuracy in the PSI at Sentencing

¶28 At sentencing, Counsel informed the trial court of a possible error in Wahlstrom's PSI. Counsel highlighted an incident listed among Wahlstrom's prior criminal history that Wahlstrom did not recall and “did not think [had] happened.” The court responded, “All right,” but it did not address the matter further before sentencing Wahlstrom.

ISSUES AND STANDARDS OF REVIEW

¶29 Wahlstrom now appeals, arguing first that he received ineffective assistance of counsel when Counsel failed to object to the Allen charge, which Wahlstrom claims was coercive. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Craft, 2017 UT App 87, ¶ 15, 397 P.3d 889 (cleaned up).

¶30 Wahlstrom also asserts that the trial court erred in failing “to properly resolve the claimed inaccuracy contained in” his PSI. “Whether the trial court properly complied with a legal duty to resolve on the record the accuracy of contested information in sentencing reports is a question of law that we review for correctness.” State v. Maroney, 2004 UT App 206, ¶ 23, 94 P.3d 295 (cleaned up).

ANALYSIS

I. Ineffective Assistance of Counsel

¶31 Wahlstrom asserts that Counsel provided ineffective assistance by failing to object to a coercive Allen charge. We first consider whether the Allen charge was, in fact, coercive. Concluding that it was, we then consider whether Counsel provided ineffective assistance by failing to object to it, ultimately determining that he did.

A. Whether the Allen Charge Was Coercive

¶32 Under both federal and Utah law, courts are permitted, after learning that jurors are struggling to reach a unanimous decision, to provide an Allen charge, which “impress[es] upon them the importance of the case, urge[s] them to come to agreement, and send[s] them back for further deliberation.” Lowenfield v. Phelps, 484 U.S. 231, 236 (1988) (cleaned up); see also State v. Lactod, 761 P.2d 23, 30 (Utah Ct. App. 1988) (“We, likewise, uphold the non-coercive use of Allen charges because we believe such charges to be a reasonable and proper exercise of the court's power to guide the jury to a fair and impartial verdict.”). “In determining whether a particular Allen instruction is coercive, we consider [1] whether the language of the supplemental charge can properly be said to be coercive per se, and [2] whether it is coercive under the specific circumstances of the case.” State v. Dalton, 2014 UT App 68, ¶ 47, 331 P.3d 1110 (cleaned up). We take up each inquiry in turn.

1. The Allen Charge Was Coercive Per Se

¶33 When it comes to Allen charges, we have previously “express[ed] our preference that the ABA [model] instruction be utilized by Utah trial judges.” State v. Harry, 2008 UT App 224, ¶ 25, 189 P.3d 98. This instruction directs, among other things, “that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment”; “that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous”; and “that no juror should surrender his or her honest belief as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.” ABA Standards for Criminal Justice Discovery & Trial by Jury § 15–5.4(a)(2), (4)–(5) (3d ed. 1996), reproduced in Lactod, 761 P.2d at 30 n.3. In State v. Harry, 2008 UT App 224, 189 P.3d 98, “we agree[d] that the ABA version is an even-handed approach designed to foster productive deliberations without putting undue pressure on dissenting jurors,” and we declared that “the inherent danger of coercion resulting from a supplemental instruction is dissipated, if not lost, if such instruction conforms to the ABA standards.” Id. ¶ 25 (cleaned up).

¶34 Nonetheless, “[w]e have [also] held that an Allen instruction need not be strictly confined to the ABA model or to the precise language in Harry in order to be deemed noncoercive.” Dalton, 2014 UT App 68, ¶ 50. But while “there is no prescribed ritual of words indicating whether the language of an Allen charge is coercive[,] ․ there are certain inherently coercive ideas which should not be included in an Allen charge.” Lactod, 761 P.2d at 30–31 (cleaned up). These include statements such as, “You have got to reach a decision in this case,” as well as statements that “overemphasize the importance of an agreement, suggest that any juror surrender his [or her] independent judgment, or say or do anything from which the jury could possibly infer that the court is indicating anxiety for or demanding some verdict, or subjecting the jury to the hardships of long deliberations.” Id. at 31 (cleaned up).

¶35 While the charge the court used here was taken verbatim from the Allen charge given in Dalton and the Dalton court determined that the charge in that case was not coercive per se, that charge included additional language not utilized here. See 2014 UT App 68, ¶¶ 51–52.

¶36 We begin with the language that the charge in this case shared with the charge given in Dalton—namely, the language directing minority jurors, whether for acquittal or conviction, to reconsider the reasonableness of their positions based on the fact that the evidence had led the majority to the other result. Regarding this language, we said in Dalton,

This language ․ is similar to that used in Harry․ Although we recognized that an instruction delivered to a deadlocked jury that is directed only to the minority jurors is more likely to be problematic, we concluded that the instruction as a whole was not coercive per se because it instructed both the jurors in favor of conviction and those in favor of acquittal to reexamine their conclusions. In this case, we similarly conclude that [the charge] was not coercive per se because it directed minority or dissenting jurors to reexamine their conclusions whether a larger number of [the] panel was in favor of or against conviction.

Id. ¶ 53 (cleaned up). Accordingly, the inclusion of the language from Dalton that was used in this case did not alone make the Allen charge here coercive per se.

¶37 Next, we consider the additional language from the charge given in Dalton that was missing from the charge that was given here. First, the charge in Dalton told the jury, “[I]t is your duty to decide this case if you can without yielding your conscientious convictions.” Id. ¶ 51. We noted there that this language was important because it “conveyed the idea that the jury did not have an absolute duty to reach a verdict.” Id. No such language was present in the Allen charge here. Moreover, the charge in Dalton also stated, “The verdict to which each of you agree must be your own and the result of your own convictions and not a mere acquiescence in the conclusion of your fellow jurors.” Id. ¶ 52. We reasoned that this additional language likewise “serve[d] to counterbalance any coercive impact the ‘duty to decide’ language might have had if taken in isolation.” Id.

¶38 We acknowledge that the Allen charge here did not include such “duty to decide” language and, thus, lacked the coercive power related specifically to that phrase. But the counterbalancing language that is also missing here has import even in the absence of such a phrase. Here, by commanding dissenting jurors to reevaluate their position, the court was exerting pressure on the minority jurors. And without language directing these jurors to not yield their convictions or simply acquiesce, there was nothing in the Allen charge to relieve its coercive force.⁹

¶39 We have repeatedly emphasized the importance of such counterbalancing language. For example, in State v. Lactod, 761 P.2d 23 (Utah Ct. App. 1988), we upheld an Allen charge instructing the jurors, “Be compromising as best you can without surrendering your honest and true feelings, because we don't want you to go in there and let everybody walk all over you.” Id. at 31. We reasoned that this language “clearly did not force the jurors to reach a decision or to give up their conscientiously held beliefs.” Id. In Harry, we likewise emphasized the following counterbalancing language:

Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence; but remember also that after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so without surrendering your conscientious conviction.

State v. Harry, 2008 UT App 224, ¶ 12, 189 P.3d 98. And in State v. Ginter, 2013 UT App 92, 300 P.3d 1278, we declared that “the presence of cautionary language helps counterbalance any coercive effect in the instruction” and held that where “only a portion of the cautionary language from Harry” was provided, we were “not convinced” that the language “was sufficient to counterbalance the factors weighing in favor of coercion.” Id. ¶¶ 13–14.

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

¶41 Because the Allen charge the trial court provided here directed the minority of jurors to question the reasonableness of their positions without also instructing pressured jurors that they were not to relinquish their independently held convictions, this charge was impermissibly coercive per se.

2. The Allen Charge Was Coercive Under the Circumstances

¶42 This Allen charge was also coercive under the circumstances. “Factors which we may consider in assessing coercive effect include any colloquy between the judge and the jury fore[person], circumstances surrounding the giving of the instruction, and consideration of the American Bar Association Standards on Criminal Justice Relating to Trial by Jury.” Lactod, 761 P.2d 23, 31 (cleaned up).

¶43 Even though Wahlstrom's trial was scheduled for two days, the court and attorneys decided to squeeze it into a single day. Jurors were notified that they would not be released anytime soon when the prosecutor said before closing argument, “I apologize. We're going to keep you a little late. Hope that you will forgive us because we're giving you tomorrow off.” The court's directive that the jury reach a verdict was clear: “You're going to go back to the jury room. You are to deliberate and discuss matters ․ and reach a verdict. Do whatever you need to to accomplish that.” The jury was not excused to deliberate until 6:37 p.m. See generally ABA Principles for Juries and Jury Trials, Principle 15(C)(2) (revised 2023) (“A jury should not be required to deliberate after normal working hours unless the court, after consultation with the parties and the jurors, determines that evening or weekend deliberations would not impose an undue hardship upon the jurors, would not unnecessarily risk juror safety, and are required in the interest of justice.”).

¶44 The court and attorneys were aware that the jury was still deliberating when they reviewed jury questions at 7:58 p.m., 8:43 p.m., and 9:20 p.m., yet the record does not contain an indication that the court informed jurors that they could choose to pause their deliberations and resume the following day. The conversation between the court and bailiff surrounding the 8:43 p.m. message informed the court that the jury had come to an agreement on all of the charges other than DUI, so as the night wore on, the court was aware that the jury had spent several hours discussing this sole charge. By 10:10 p.m., the bailiff had informed the court and attorneys that the jury was deadlocked on this charge. And the court did not inform the jury that if it could not reach a unanimous verdict, the court would declare a mistrial. Instead, as noted, the court directed the jury to “[d]o whatever [it] need[ed] to to” reach a verdict. Similarly, one of the jury instructions read, “The final step is for you to retire to the jury room and deliberate until you reach a verdict.” (Emphasis added.)

¶45 In other words, in the late hours of the evening, the jury may have believed that it would be held for deliberations for as long as necessary until it reached a unanimous verdict. Cf. State v. Lactod, 761 P.2d 23, 31 (Utah Ct. App. 1988) (identifying as significant, in holding an Allen charge was not coercive under the circumstances, that “[t]he judge did not threaten to or keep the jury deliberating for an unreasonable length of time”). We can envision these circumstances creating tension in the jury room and pressure against the minority jurors. The court's response to being told the jury was deadlocked was to send the Allen charge, thereby instructing the—likely already pressured—minority jurors to reconsider their positions based on the fact that the majority took the opposite view. And as discussed above, this Allen charge departed from the ABA language because it was directed at only the minority jurors, a fact that increased its coercive power. See State v. Harry, 2008 UT App 224, ¶ 34, 189 P.3d 98 (“Under the circumstances of this case, the instruction was not reasonably within the ABA-recommended standards for verdict-urging instructions. The ABA standard does not single out the minority jurors ․” (cleaned up)).

¶46 A mere eleven minutes after being given the Allen charge, the jury returned its verdict. This detail carries weight. In Lactod, we said the fact that “the jury continued to deliberate after receiving the instruction for another hour and fifteen minutes ․ suggest[ed] that minority jurors did not instantly acquiesce to the majority.” 761 P.2d at 31 (cleaned up). In Harry, on the other hand, we stated that “the fact that the jury reached a verdict only twenty-six minutes after receiving the modified Allen instruction suggest[ed] that the sole dissenting juror was, in fact, coerced and instantly acquiesced to the majority.” 2008 UT App 224, ¶ 33 (cleaned up); see also State v. Ginter, 2013 UT App 92, ¶ 12, 300 P.3d 1278 (stating that the event of “the jury return[ing] with a verdict in less than thirty minutes” signaled “an atmosphere of coerciveness”). Given the eleven-minute timeframe between the Allen charge and the jury's verdict—combined with the lateness of the hour, the lack of any indication in the record that the jurors knew that they had the option of resuming their deliberations the following day or that they could be released without reaching a unanimous verdict, and the targeted language to the minority jurors—we have no trouble concluding that this Allen charge was coercive under the circumstances.

B. Whether Counsel Provided Ineffective Assistance

¶47 Given that the Allen charge in this case was coercive, we next consider whether Counsel rendered ineffective assistance by not objecting to the instruction. To succeed on a claim of ineffective assistance of counsel, a defendant must show both “that counsel's performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). We consider each prong in turn.

1. Counsel Performed Deficiently

¶48 Assessing whether counsel performed deficiently “involves asking whether the strategy [c]ounsel employed was that of a reasonable, competent lawyer.” State v. Wilkes, 2020 UT App 175, ¶ 24, 479 P.3d 1142. “[T]he ultimate question is always whether, considering all the circumstances, counsel's acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350.

¶49 Here, we consider whether Counsel could have reasonably wanted the jury to receive an Allen instruction that not only was coercive but also coercively directed the minority jurors to reconsider their positions. On the one hand, the bailiff did not tell the court and attorneys how many jurors were holding out or for which side. On the other hand, the evidence of Wahlstrom's actual physical control of the truck was very strong, and the circumstances surrounding the court's issuance of the Allen charge provided Counsel with telling information about the jury's feelings.

¶50 First, Counsel was aware that the evidence weighed heavily in favor of a finding that Wahlstrom was in actual physical control of the vehicle.¹⁰ When Deputy found Wahlstrom, Wahlstrom was the sole occupant of the vehicle, was awake and sitting in the driver seat, and had the key in the ignition with the lights turned on. Additionally, the truck was parked in a position from which it could easily access the road. And Wahlstrom proved his possession of the key by removing the key from the ignition when Deputy opened the truck door to encourage Wahlstrom to get out. In short, of the first seven factors presented to the jury in Instruction 53, six favored a finding that Wahlstrom was in actual physical control of the truck, with the sole counterpoint being that the engine was not running. See supra ¶ 18. Based on our state's caselaw, Counsel would have understood that this evidence strongly supported a finding that Wahlstrom was in actual physical control of the vehicle. See, e.g., Lopez v. Schwendiman, 720 P.2d 778, 779–81 (Utah 1986) (upholding a finding of actual physical control despite the defendant claiming the car was “inoperable at the time of his arrest” where the defendant was the sole occupant, was sitting in the driver seat, and—though the engine was off—“removed the keys from the ignition and had to turn them to get them out”); id. at 780–81 (stating that courts “start out from the premise that as long as a person is physically able to assert dominion by starting the car and driving away, he [or she] has substantially as much control over the vehicle as he [or she] would if he [or she] were actually driving it”); Garcia v. Schwendiman, 645 P.2d 651, 652, 654 (Utah 1982) (holding that there was “an adequate showing of actual physical control” despite a defendant being blocked in by a fence in the front and another car in the back where the defendant “occupied the driver's position behind the steering wheel, with possession of the ignition key and with the apparent ability to start and move the vehicle” (cleaned up)).

¶51 Moreover, Counsel could infer from the jury's actions before the issuance of the Allen charge that the final two factors listed in Instruction 53—how the vehicle got to its position and who drove it there—also fell in favor of Wahlstrom being in actual physical control of the vehicle. While Counsel had urged the jury to credit Wahlstrom's claim that Sadie had been the driver, Counsel had information indicating that the jury had rejected this claim. Specifically, Counsel knew that the jury was deadlocked only on the DUI charge. And the court's response to the jury's questions discussed at 9:20 p.m. answered the jury's question as to whether DUI was satisfied by a finding of actual physical control. This meant that at the point of deadlock, the jury disagreed on whether Wahlstrom had been in actual physical control of his truck while intoxicated. But because there was no debate that Wahlstrom's truck lacked an ignition interlock system, the only element the jury needed to find to convict him on the interlock charge was that he was—at any point—in actual physical control of his truck. As a matter of law, the jury could not acquit him on the interlock charge while some jurors were convinced that he had been in actual physical control of the truck while intoxicated, because the jurors would not have unanimously agreed that he had never been in actual physical control of the truck, as required to acquit on the interlock charge. In other words, by stating that the jury had reached a verdict on the other charges and then relaying that the jury was deadlocked on DUI, the bailiff had unwittingly informed Counsel that the jury had already unanimously found Wahlstrom guilty on the interlock charge.

¶52 This reality provided Counsel with additional information. If jurors unanimously agreed that Wahlstrom had been in actual physical control of the truck at some point but disagreed that he had been so while intoxicated, even those favoring acquittal on the DUI charge must have agreed that Wahlstrom had been in actual physical control of the truck before becoming intoxicated. Thus, Counsel could not have reasonably believed that the jury credited the claim that Sadie was the one who drove the truck up the mountain. In other words, the jury's reported actions informed Counsel that it had found Wahlstrom to be the driver. And this finding meant that the final two listed factors for actual physical control also fell against Wahlstrom.

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

¶54 And, surprisingly, Counsel's hope bore fruit. The bailiff's announcement that the jury was deadlocked on the DUI charge informed Counsel that there was at least one juror who was not prepared to convict Wahlstrom of DUI. But given the overwhelming evidence of actual physical control and given the inferences available from the jury's previous actions, it would have been unreasonable for Counsel to believe that a majority of jurors favored acquittal. Accordingly, the only result Counsel could reasonably anticipate from the court issuing the Allen charge, with its directive tailored to the minority jurors, was that the minority of jurors favoring acquittal might fold under the pressure and agree to convict on the DUI charge.

¶55 Meanwhile, Counsel had the option to object to the Allen charge and ask the court to include counterbalancing language urging the jurors not to give up their conscientiously held beliefs, in the hope that the jury would remain deadlocked and force a mistrial. Reasonable counsel in this circumstance would not have acquiesced in an instruction that pressured the minority jurors into agreeing to convict Wahlstrom. Therefore, Counsel's failure to object to this Allen charge was unreasonable under the circumstances and constituted deficient performance.

2. Counsel's Deficient Performance Prejudiced Wahlstrom

¶56 To establish ineffective assistance of counsel, a defendant “must show that [counsel's] deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy this prong, “[t]he burden is on the defendant to demonstrate a reasonable probability that the outcome of his or her case would have been different absent counsel's error.” State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350. “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.” Id. (cleaned up). “Prejudice analysis is counterfactual. To decide whether a trial affected by error is reasonably likely to have turned out differently we have to consider a hypothetical—an alternative universe in which the trial went off without the error.” State v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86.

¶57 Wahlstrom was prejudiced by Counsel's deficient performance. Based on our analysis above, had Counsel objected to the Allen charge, the trial court would likely have realized that it was improperly coercive and not have issued it without appropriate modification. Moreover, the minority had demonstrated their resolve by not agreeing to convict for the better part of an hour after the jury received the court's 9:20 p.m. answers to its latest questions—despite the pressures we expect were mounting within the jury room based on the lateness of the hour. Accordingly, we are not confident that in the absence of that instruction the minority jurors would have folded. Therefore, there is a reasonable probability of a hung jury on the DUI charge had the jury not been given this Allen charge. See generally State v. Scott, 2022 UT App 81, ¶ 40 n.8, 514 P.3d 590 (“If the jury is unable to unanimously agree ․, the result is a hung jury.” (cleaned up)).

¶58 Because Counsel's performance was deficient and prejudiced Wahlstrom, Counsel provided constitutionally ineffective assistance related to the DUI charge. However, as the bailiff's comments indicate, Counsel's performance related to the Allen charge made no difference to the jury's convictions on the other charges, because the jury had reached a unanimous verdict on those charges before the deadlock. Accordingly, we reverse Wahlstrom's conviction on the DUI charge but do not disturb his convictions on the other charges. We remand this case for such further proceedings on the DUI charge as may be appropriate.

II. Failure to Resolve the Alleged Inaccuracy in the PSI

¶59 Wahlstrom's second issue on appeal is that the trial court erred in failing “to properly resolve the claimed inaccuracy contained in” his PSI. The State concedes that the trial court failed to take the steps required by Utah Code section 77-18-103(5)(a) and thereby erred. Accordingly, we remand this matter as well, for the limited purpose of allowing the trial court to address the alleged inaccuracy in Wahlstrom's PSI. See State v. Cruz, 2020 UT App 157, ¶ 33, 478 P.3d 631 (“Because there is no objection to a limited remand for the district court to make specific findings regarding the accuracy of [the defendant's] objections to the PSI, we order limited remand for this purpose.”).

CONCLUSION

¶60 The trial court gave the jury a coercive Allen charge, and Counsel's failure to object constituted ineffective assistance of counsel. Also, the State concedes error regarding an alleged inaccuracy in Wahlstrom's PSI. We therefore remand for the limited purposes of addressing the PSI issue and permitting further proceedings on the DUI charge. We do not disturb Wahlstrom's other convictions.

FOOTNOTES

1.   In Allen v. United States, 164 U.S. 492 (1896), the United States Supreme Court approved the use of supplemental jury instructions to help a deadlocked jury reach a unanimous verdict. See id. at 501–02.

3.   A pseudonym.

4.   The timeline of these events was disputed; we recount Sadie's and Wahlstrom's versions of the events in more detail below.

5.   The record does not contain a copy of this page of the verdict form as it appeared when first given to the jury. We therefore cannot say whether “actual physical control” was identified as one of the elements provided on the verdict form.

6.   Given that Wahlstrom had conceded guilt on the open container charge, the reference to “the other two” was to the charges of operating or being in actual physical control of a vehicle without an ignition interlock device and driving on a suspended license (alcohol-related).

7.   We believe that the jury's apparent confusion as to whether the DUI charge could be satisfied by a finding that Wahlstrom was in “actual physical control” of the vehicle relates to the absence of that phrase in the name of the DUI charge as given on the verdict form and the concurrent inclusion of that phrase in the name of the interlock charge as given on the verdict form.

8.   It is not clear whether by “counsel” the court was referring to the prosecutor, Counsel, or both. However, because (as we soon recount) the prosecutor was the one who identified State v. Dalton, 2014 UT App 68, 331 P.3d 1110, as the case from which the language for the proposed Allen charge came, it is possible that the prosecutor was the “counsel” the court was referring to. Regardless of whether Counsel also had some role in preparing the Allen charge used here, he did not object to it.

9.   In Dalton, we noted that in conjunction with contemporaneous counterbalancing language in the Allen charge, the jury instructions provided before deliberation also contained counterbalancing language similar to the counterbalancing language in the Allen charge. State v. Dalton, 2014 UT App 68, ¶ 52, 331 P.3d 1110. Here, the jury was instructed as follows before deliberation: “Your verdict must be your own. Do not make a decision just to agree with everyone else.” This language admittedly urged jurors at the outset of their deliberations against reaching a decision for the sake of agreement. But this prior instruction alone provided an inadequate counterbalance when the minority of deadlocked jurors were later specifically instructed to “consider whether a doubt in [their] own mind[s] [was] a reasonable one [where] it [made] no impression on the minds of so many other jurors who [were] equally honest and intelligent and [had] heard the same evidence and taken the same oath.” Moreover, unlike the pre-deliberation instruction in Dalton, the pre-deliberation instruction here did not suggest the permissibility of the jury not returning a verdict. See id. (explaining that the pre-deliberation jury instruction there stated, “Try to reach unanimous agreement, but only if you can do so honestly and in good conscience.” (emphasis added)). Ultimately, the pre-deliberation instruction here was not as robust as the pre-deliberation instruction in Dalton, and the fact that it contained some counterbalancing language does not alone overcome the lack of any such language within the Allen charge itself.

10.   Counsel's willingness to send the jury to begin deliberations at 6:37 p.m. itself suggests that Counsel did not believe deliberations would last long—a belief we consider reasonable given the strength of the evidence supporting a finding that Wahlstrom was in actual physical control of the vehicle.

LUTHY, Judge: