State v. Jordan , 438 P.3d 862 ( 2018 )

2018 UT App 187THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MICHAEL ALAN JORDAN,
Appellant.
Amended Opinion 1
No. 20160439-CA
Filed September 27, 2018
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 141910848
Marshall M. Thompson and Alexandra S. McCallum,
Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.
HARRIS, Judge:
¶1 A jury convicted Michael Alan Jordan of thirty-three
felonies, including sexual abuse of two of his minor step-
children, possession of child pornography, and tampering with a
witness. Jordan appeals, arguing that his trial counsel provided
constitutionally ineffective assistance by, among other things,
1. This Amended Opinion replaces the Opinion in Case No.
20160439-CA that was issued on August 30, 2018. After our
original opinion issued, we noted an inaccuracy in Paragraph 30.
This Amended Opinion corrects that inaccuracy, but does not
alter any of the conclusions reached in our original opinion.
State v. Jordan
failing to take steps necessary to introduce impeachment
evidence against one of his stepchildren, and failing to object to
the prosecutor’s closing argument regarding Jordan’s possession
of certain photographs. Jordan also asserts that the State’s
evidence was insufficient to support a conviction on four of the
counts on which he was convicted.
¶2 In addition, Jordan seeks a remand under rule 23B of the
Utah Rules of Appellate Procedure so that the trial court can
make evidentiary findings in connection with his contention that
his trial counsel provided constitutionally ineffective assistance.
In his rule 23B motion, Jordan also advances the argument
regarding counsel’s failure to impeach one of his step-children,
and additionally argues that his counsel should have presented
evidence that one of his step-children also had access to the
computer that contained images of child pornography.
¶3 For the reasons that follow, we affirm twenty-one of
Jordan’s thirty-three convictions, but vacate his conviction on
one count for lack of sufficient evidence. We also grant Jordan’s
rule 23B motion, at least in part, with regard to his other eleven
convictions, and remand this case to the trial court for further
proceedings on those counts.
BACKGROUND
¶4 In 2008, a woman (Mother) moved to West Valley City
with her three children. At that time, Mother’s oldest son
(Mark 2) was twelve, and her younger son (Luke) was six. Jordan
2. We use the pseudonyms “Mark” and “Luke” for the sons,
instead of their real names, in an effort to protect the privacy of
the victims. See State v. Alzaga, 2015 UT App 133, ¶ 2 n.2, 352
P.3d 107 (using pseudonyms for similar reasons).
20160439-CA 2 2018 UT App 187State v. Jordan
lived in the same part of the city. Mark met Jordan in
the neighborhood and later introduced him to Mother. Mother
and Jordan married in 2010, and later had two children of their
own.
¶5 According to Mark, Jordan began to sexually abuse him in
2008, soon after they met, and continued to do so periodically
for the next five or six years. In 2014, when Mark was seventeen,
Jordan showed him photographs of Jordan sexually abusing
Luke. Mark later testified that, after seeing the photographs of
his little brother, “I was devastated. I was done. I’d had
enough.” Later that same year, Mark informed Jordan that he
would be moving out of the house in September 2014, as soon as
he turned eighteen.
¶6 The day after Mark’s birthday, police received an
anonymous call requesting a “welfare check” at the family
residence, where Jordan, Mother, and Luke were present.
When a police officer arrived, Luke maintained that he was
“fine.” The officer and Jordan then left the residence. Once the
officer and Jordan were gone, Luke decided that it was “the
perfect time to tell [his] mom” that “everything’s not okay” and
that Jordan had been sexually abusing him for over five years.
After hearing this, Mother met briefly with police later that
evening, and then took both Luke and Mark in for police
interviews the following day.
¶7 After investigation, the State charged Jordan with thirty-
three criminal counts, including four counts of aggravated
sexual abuse of a child, first degree felonies; four counts of
sodomy upon a child, first degree felonies; four counts of
forcible sodomy, first degree felonies; sixteen counts of sexual
exploitation of a minor, second degree felonies; one count of
tampering with a witness, a third degree felony; and four counts
of dealing harmful material to a minor child, third degree
20160439-CA 3 2018 UT App 187State v. Jordan
felonies. Six of these counts involve Jordan’s actions toward
Luke, and twenty involve Jordan’s actions toward Mark. 3
¶8 The case proceeded to trial, and Mark and Luke each
testified that Jordan sexually abused them for years. Each
separately testified that the abuse included mutual
masturbation, mutual oral sex, and anal sex, as well as Jordan
showing them pornography and taking nude or partially-nude
photographs of them. Luke also testified that, shortly before he
disclosed the abuse to Mother, Jordan took him into Jordan’s
office, showed him a gun, and told Luke that if he ever told
anyone, Jordan would shoot him and his family.
¶9 Also during trial, the prosecution introduced into
evidence various photographs obtained from Jordan’s laptop. A
forensic examiner described five photographs recovered from
the laptop (marked as Exhibits 32–36) that depicted young nude
males. Relatedly, during Mark’s testimony, Mark also described
nine additional photos recovered from the laptop (marked as
Exhibits 23–31) that depicted Mark’s naked body, including his
genitals. Mark explained that Jordan took eight of the nine
photos while Mark was still a minor, and that the ninth
photograph was a selfie that Mark took of himself, while he was
a minor, and then electronically sent to Jordan. Mark testified
that Jordan would sometimes ask him to take photographs of
himself while naked and send them to Jordan, and that Jordan
told him that if he did not do so he would be “in trouble.”
¶10 At a later point in the trial, the prosecutor also asked
Mother about two more photographs discovered on Jordan’s
laptop (marked as Exhibits 21–22). Mother explained that
3. Two of the other counts involve photographs of one of
Jordan’s younger, toddler-aged sons, and the remaining five
counts involve photographs of other unidentified males.
20160439-CA 4 2018 UT App 187State v. Jordan
Exhibit 21 was a photograph of one of their then-toddler sons
sitting naked on a counter in a bathroom, and that Jordan could
be seen in the mirror taking the photo. Mother explained that
Exhibit 22 showed the same child naked while “walking
outside” near a canal. Mother stated that she did not know who
took that photograph.
¶11 During trial, but outside the presence of the jury, Jordan
argued that the State would need expert testimony to establish
that the persons depicted in Exhibits 33–36 were indeed under
eighteen years of age. The trial court disagreed, determining that
“the jurors can look to their life experience and to their judgment
in reviewing [the] evidence.” The court later determined that
there was sufficient evidence to allow the charges related to
those four exhibits to go to the jury.
¶12 During closing, the State made specific arguments
regarding Exhibits 21 and 22. Referring to Exhibit 21—
the photograph of the naked toddler in the bathroom—the
State asked the jury to “review that photo in light of all of the
evidence,” and stated that, “when you do that, you know
that [Jordan] wasn’t taking a picture of his son because he’s cute,
because he wants a picture of his kid in the bathroom. He
was doing it because it’s child pornography.” Referring to
Exhibit 22—the photograph of the naked toddler walking
outside—the prosecutor acknowledged that “under normal
circumstances, you could say, hey, that’s just a dad taking a
picture of his kid when he’s naked, not a big deal,” but that
under the circumstances of this case, “there should be no doubt
that the defendant took that picture because he wanted a picture
of a naked little boy. Why? Because he’s sexually attracted to
boys.”
¶13 The jury convicted Jordan on all thirty-three counts.
20160439-CA 5 2018 UT App 187State v. Jordan
ISSUES AND STANDARDS OF REVIEW
¶14 Jordan appeals his convictions, and in addition has
moved for remand under rule 23B of the Utah Rules of Appellate
Procedure. “A remand under rule 23B is ‘available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.’” State v. Crespo, 2017 UT App 219,
¶ 24, 409 P.3d 99 (quoting Utah R. App. P. 23B(a)).
¶15 In his appeal, Jordan raises two types of arguments. First,
he contends that his trial counsel was constitutionally ineffective.
“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.
Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672, 677 (quotation
simplified).
¶16 Second, he contends that the State failed to introduce
sufficient evidence to convict him on certain counts. “When we
review a challenge to the sufficiency of the evidence, we review
the evidence and all inferences that may reasonably be drawn
from it in the light most favorable to the jury’s verdict,” and we
“vacate the conviction only when the evidence, so viewed, is
sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt”
about the defendant’s guilt. See State v. Patterson, 2017 UT App
194, ¶ 2, 407 P.3d 1002.
ANALYSIS
¶17 We begin by addressing Jordan’s rule 23B motion. We
then turn to the arguments he raises on appeal.
20160439-CA 6 2018 UT App 187State v. Jordan
I. Jordan’s Rule 23B Motion
¶18 Jordan raises three issues in his rule 23B motion, two of
which we discuss here at length. First, Jordan asserts that “[t]rial
counsel was ineffective for failing to investigate or timely pursue
a motion under rule 412 of the Utah [R]ules of Evidence” that
would have allowed Jordan to more effectively cross-examine
Luke. Second, Jordan asserts that trial counsel was ineffective for
failing to show that Mark, in addition to Jordan himself, “had
full access to” Jordan’s laptop computer. 4 We discuss these
issues, in turn, after a discussion of rule 23B generally.
A
¶19 In all criminal cases, “the accused shall enjoy the right . . .
to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. The right to counsel includes the right to effective
counsel, Strickland v. Washington, 466 U.S. 668, 686 (1984), and
applies to privately-retained counsel as well as counsel
appointed by the court, Cuyler v. Sullivan, 446 U.S. 335, 344
(1980). To demonstrate that his counsel provided constitutionally
defective representation, Jordan must establish both (1) that
counsel’s performance was objectively deficient, and (2) that
there is a reasonable probability that, but for counsel’s deficient
performance, Jordan would have received a more favorable
outcome at trial. State v. Burnett, 2018 UT App 80, ¶¶ 21–22.
4. Jordan raises one other issue in his rule 23B motion: he asserts
that his attorney should have obtained an expert opinion
regarding the age of the individuals depicted in Exhibits 33–36.
We discuss this issue later, in connection with Jordan’s
contention, made in his appeal, that the State presented
insufficient evidence to convict him on the counts supported by
Exhibits 33–36. See infra ¶ 64 n.14.
20160439-CA 7 2018 UT App 187State v. Jordan
¶20 A defendant may raise ineffective assistance of counsel
claims on appeal only if “the trial record is adequate to permit
decision of the issue.” State v. Griffin, 2015 UT 18, ¶ 16 (quotation
simplified). If the record is not adequate, a defendant’s ability to
bring such claims on appeal is impaired. See id. (stating that “a
defendant cannot bring an ineffective assistance of counsel claim
on appeal without pointing to specific instances in the record
demonstrating both counsel’s deficient performance and the
prejudice it caused the defendant”). Rule 23B of the Utah Rules
of Appellate Procedure addresses this scenario, and provides a
mechanism, in appropriate circumstances, for a defendant to
develop the facts necessary to support a claim for ineffective
assistance of counsel. See Griffin, 2015 UT 18, ¶ 18 (stating that
“[t]he purpose of a rule 23B remand is to develop new evidence
in the record, without which a defendant cannot bring his
ineffective assistance of counsel claim on appeal”); see generally
Utah R. App. P. 23B.
¶21 Under rule 23B, “[a] party to an appeal in a criminal case
may move the court to remand the case to the trial court for
entry of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.”
Utah R. App. P. 23B(a). “The motion shall be available only upon
a nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Id.; see also Griffin, 2015 UT 18, ¶ 18
(noting that “remand is not appropriate where the alleged facts
are already in the record”). “[S]peculative allegations are those
that have little basis in articulable facts but instead rest on
generalized assertions.” Griffin, 2015 UT 18, ¶ 19.
¶22 In moving for remand under rule 23B, “[t]he motion shall
include or be accompanied by affidavits alleging facts not fully
appearing in the record on appeal that show the claimed
deficient performance of the attorney.” Utah R. App. P. 23B(b).
“An affiant must submit specific facts and details that relate to
20160439-CA 8 2018 UT App 187State v. Jordan
specific relevant occurrences.” Griffin, 2015 UT 18, ¶ 19.
Affidavits in rule 23B motions “shall also allege facts that show
the claimed prejudice suffered by the appellant as a result of the
claimed deficient performance.” Utah R. App. P. 23B(b).
¶23 We have previously identified three requirements that a
movant must meet to prevail on a rule 23B motion: (1) the
motion “must be supported by affidavits alleging facts outside
the existing record”; (2) “the alleged facts must be non-
speculative”; and (3) the alleged facts, when assumed to be true,
“must establish both elements of a traditional ineffective-
assistance claim.” State v. Tirado, 2017 UT App 31, ¶ 14, 392 P.3d
926. In evaluating a rule 23B motion, “we express no opinion . . .
as to the ultimate merits of the ineffective assistance of counsel
claim,” because the record is undeveloped, and therefore “the
State has had little opportunity to counter the factual allegations
presented.” Griffin, 2015 UT 18, ¶ 22.
B
¶24 The first issue Jordan raises in his rule 23B motion is an
assertion that his trial counsel, in an effort to impeach Luke’s
credibility, should have sought to admit—pursuant to rule 412 of
the Utah Rules of Evidence—proof that Luke had previously
made false allegations of sexual abuse. On this issue, we
conclude that Jordan has met his burden under rule 23B, at least
insofar as this argument implicates Luke’s testimony.
¶25 Rule 412 prohibits the introduction, in certain criminal
cases, of “evidence offered to prove that a victim engaged in
other sexual behavior” or “evidence offered to prove a victim’s
sexual predisposition.” See Utah R. Evid. 412(a)(1)–(2). Our
supreme court has stated that the rule was adopted “to ensure
that sexual assault victims are not deterred from participating in
prosecutions because of the fear of unwarranted inquiries into
the victim’s sexual behavior.” State v. Tarrats, 2005 UT 50, ¶ 20,
20160439-CA 9 2018 UT App 187State v. Jordan
122 P.3d 581 (quotation simplified). Rule 412 “reflects the
recognition that evidence of the victim’s unchastity is ordinarily
of no probative value on the issue of whether a rape or sexual
assault occurred.” Id. (quotation simplified).
¶26 “Although rule 412 prohibits the admission of any
truthful evidence that involves actual physical conduct or that
implies sexual contact, the rule does not reach evidence offered
to prove allegedly false prior claims by the victim.” State v. Clark,
2009 UT App 252, ¶ 20, 219 P.3d 631 (quotation simplified)
(emphasis added); see also State v. Martin, 1999 UT 72, ¶ 16, 984
P.2d 975 (stating that “[n]othing in Rule 412 would exclude
evidence of an alleged rape victim’s previous false allegations of
rape”). This is because “evidence of false statements of unrelated
sexual assaults . . . are not evidence of sexual conduct per se.”
Tarrats, 2005 UT 50, ¶ 24 (quotation simplified). Evidence of false
prior claims by the victim “bear directly on the credibility of the
purported victim in a subsequent case,” Clark, 2009 UT App 252,
¶ 20, and can constitute “strong impeachment evidence [that]
would go to the central issue of the case,” namely, whether the
purported victim was being truthful, Martin, 1999 UT 72, ¶ 16.
¶27 To properly introduce such evidence, however, the
defendant must first “make a threshold showing of the falsity of
prior allegations by a preponderance of the evidence before he
can use those allegations to impeach the accuser’s testimony at
trial.” Tarrats, 2005 UT 50, ¶ 26.
¶28 No evidence of any prior false allegations by Luke—or by
anyone else—was ever introduced during the proceedings in
this case. At the preliminary hearing, trial counsel attempted to
ask Luke about prior allegations of sexual abuse, but the State
objected because Jordan had not yet filed a rule 412 motion and
had not yet shown that the evidence he wished to present met
any exception to rule 412. The trial court sustained the objection.
Later, at a pretrial conference, Jordan’s attorney stated that she
20160439-CA 10 2018 UT App 187State v. Jordan
“may be requesting a [rule] 412 hearing” if she could “round up
the witnesses,” but no such motion was ever filed.
¶29 In support of his argument that trial counsel performed
deficiently by failing to pursue a rule 412 motion, Jordan
attaches to his rule 23B motion a report from a West Valley City
police officer. According to that document, “it was reported that
while [Luke] was at his [biological] father’s house [he] witnessed
his half brother and sister who are ten and twelve years old
having intercourse. [Luke] was also coaxed into having
intercourse with [his] half sister.” Later in his report, the officer
explained that he was contacted by a caseworker from the
Department of Child and Family Services who informed the
officer “that [the caseworker] had gone out and obtained
statements from all the children involved” and that “the older
children were denying [that] anything happened.” Additionally,
the caseworker reported that the children’s father, Mother’s
previous husband, “denied that he was told anything by
[Luke].” The caseworker also informed the officer that “[s]he
also looked at this history with the family and found a previous
case where [Luke] had not been honest and made similar
allegations. That case was closed as unfounded.” The officer
concluded his report by noting that both he and the caseworker
“determined that the allegations were false and that it did not
appear that [Luke] was being honest” about the prior
allegations. The officer reported that he met with Mother and
explained to her that Luke was not being honest, and Mother
“appeared very concerned that her son was doing this for
attention,” and that she “wanted her son to stop telling lies.”
¶30 These are striking allegations. In our view, if these
allegations had been brought to the trial court’s attention in a
rule 412 motion, there is a reasonable probability it would have
determined that the “threshold showing” of falsity was met
(depending, of course, on what other evidence was presented).
20160439-CA 11 2018 UT App 187State v. Jordan
Counsel could then have sought to use this evidence at trial
during cross-examination of Luke.
¶31 On these facts, we conclude that the requirements of rule
23B are met. The facts set forth in the police report are not
“already in the record,” are “not speculative,” and “could
support a determination that counsel was ineffective.” See
Griffin, 2015 UT 18, ¶¶ 18–20. We are unaware of any plausible
tactical reason for counsel to have failed to make a rule 412
motion along these lines, 5 and we cannot say that there is no
reasonable probability of a different outcome if such evidence
had been introduced. Accordingly, we grant Jordan’s rule 23B
motion on rule 412 grounds, at least as it relates to the six
charges describing conduct Jordan allegedly committed toward
Luke and which therefore depend heavily on Luke’s testimony. 6
¶32 Jordan, however, asks us to apply this argument to more
than just the six charges that depend largely on Luke’s
testimony. In support of this request, Jordan makes broad (and
largely unsupported) allegations that Mother, Luke, and Mark
had all “colluded to falsely make accusations of sexual abuse
against [Mother’s] previous husband.” As noted, rule 23B
motions must be supported by “non-speculative” facts. Tirado,
2017 UT App 31, ¶ 14. “In the context of rule 23B, speculative
allegations are those that have little basis in articulable facts but
instead rest on generalized assertions.” Griffin, 2015 UT 18, ¶ 19.
5. We are unpersuaded by the State’s argument that counsel
could have been concerned that introduction of Luke’s false
allegations would have undermined Jordan’s own credibility.
That this would have been counsel’s motivation seems extremely
unlikely, but perhaps the evidence developed on remand will
demonstrate otherwise.
6. These counts are Counts 1, 2, 5, 6, 29, and 33.
20160439-CA 12 2018 UT App 187State v. Jordan
None of the materials Jordan attaches to his rule 23B motion
establish that either Mother or Mark made prior false allegations
of sexual abuse against anyone, or that either of them had any
role in coaching Luke into making prior false allegations against
his half-siblings. 7 The only support for Jordan’s broad theory of
collusion is found in his own self-serving statements made to
police investigators. On this record, we cannot conclude that
there is a reasonable probability of a different outcome on any of
the charges that do not depend on Luke’s testimony.
Accordingly, we decline to apply Jordan’s rule 412 argument to
any charge other than the six charges involving Luke.
C
¶33 The second issue Jordan raises in his rule 23B motion is an
assertion that trial counsel performed deficiently by “failing to
show that [Mark] had full access” to Jordan’s laptop computer.
On this issue, we likewise conclude that Jordan has met his
burden under rule 23B, but conclude that the applicability of this
argument is similarly limited.
¶34 The State filed several charges against Jordan regarding
child pornography. One of the specific elements that the State
had to prove, in order to convict Jordan on those charges, was
that Jordan had “knowingly produce[d] [or] possess[ed] . . . child
pornography.” See Utah Code Ann. § 76-5b-201(1)(a)(i)
(LexisNexis 2017). “[A]ctual physical possession is not necessary
to convict a defendant” of a possession crime. State v. Fox, 709
7. Jordan includes this argument in his appellate brief also,
implying without evidentiary support that Mark “would help
coach [Luke] to make false allegations.” His argument fails on
appeal for the same reason that it fails in the rule 23B context:
there is no support for it, either in the trial record or in the
materials submitted in connection with the rule 23B motion.
20160439-CA 13 2018 UT App 187State v. Jordan
P.2d 316, 318–19 (Utah 1985). For possession charges, the
circumstantial evidence necessary to convict is evidence showing
a “sufficient nexus between the accused and the [contraband] to
permit an inference that the accused had both the power and the
intent to exercise dominion and control over the [contraband].”
State v. Ashcraft, 2015 UT 5, ¶ 19, 349 P.3d 664 (quoting Fox, 709
P.2d at 319); see also Constructive Possession, Black’s Law
Dictionary (10th ed. 2014) (defining constructive possession as
“[c]ontrol or dominion over a property without actual
possession or custody of it”).
¶35 When only one person has access to a computer on which
child pornography is located, demonstrating constructive
possession is straightforward: it is clear that the sole person with
access to the computer has at least constructive possession of the
images. See United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994)
(stating that “[d]ominion, control, and knowledge, in most cases,
may be inferred if defendant had exclusive possession” of the
place where contraband is found); see also United States v.
Moreland, 665 F.3d 137, 150 (5th Cir. 2011) (same statement, but
in the context of a child pornography case). The situation is
different, however, when multiple individuals have access to a
computer on which child pornography is stored. In that
situation, “joint occupancy alone cannot sustain” an inference of
constructive possession, and prosecutors have an increased
burden in demonstrating constructive possession. See Mills, 29
F.3d at 549 (also stating that “[i]n cases of joint occupancy,” the
government “must present evidence to show some connection or
nexus between [a] defendant and . . . the contraband”); see also
Moreland, 665 F.3d at 150 (stating that “[w]hen the government
seeks to prove constructive possession of contraband found in a
jointly occupied location, it must present additional evidence of
the defendant’s knowing dominion or control of the contraband,
besides the mere joint occupancy of the premises, in order to
prove . . . constructive possession”).
20160439-CA 14 2018 UT App 187State v. Jordan
¶36 In this case, because no evidence was introduced at
trial indicating that anyone other than Jordan had access to
the laptop computer, the State properly relied upon the
presumption that Jordan—as the only person with access—had
constructive possession of the images found there. Jordan asserts
in his rule 23B motion, however, that evidence exists that
indicates that he did not have exclusive possession of the
laptop. Specifically, Jordan has submitted an affidavit from his
brother in which Jordan’s brother explained that, on multiple
occasions, he observed Mark accessing Jordan’s laptop by
entering the password into the computer. Jordan supplements
this with his own affidavit alleging that Mark had full access to
his laptop.
¶37 This evidence, if true, would tend to support the
conclusion that both Mark and Jordan had access to the laptop,
which would require the State to meet a more stringent burden
in order to prove that Jordan constructively possessed the
images. See id. With regard to ten of the sixteen child
pornography charges, the State’s evidence satisfied even the
higher burden. Nine of those counts (Counts 15–23) were based
on photographs of Mark, and Mark testified that Jordan took
eight of those photos himself, and that Jordan asked Mark to
send him the ninth one. Another of those counts was based on
the photograph of Jordan’s toddler son sitting on the bathroom
counter, and Mother testified that Jordan took that photograph.
With regard to these ten photographs, the State clearly met even
the more stringent burden of demonstrating that Jordan had
constructive possession of them.
¶38 With regard to the other six charged counts of
sexual exploitation of a minor, however, the State presented no
evidence of constructive possession other than Jordan’s access
to the laptop computer on which the photographs were found.
20160439-CA 15 2018 UT App 187State v. Jordan
Exhibits 32–36 were discovered without metadata, 8 so the State’s
expert could not determine when the file was downloaded or
viewed, or any details about when or how the photograph was
taken. No other witness offered any evidence about where these
photographs came from, how they were created, or how they
ended up on Jordan’s laptop. Likewise, Exhibit 22 (the
photograph of Jordan’s toddler son walking naked along a
canal) had no metadata associated with it and, although Mother
testified that her son was the child depicted in the photograph,
no witness testified about who took the photograph or how it
came to be on Jordan’s laptop.
¶39 Accordingly, we conclude that the requirements of rule
23B are met, at least with regard to the charges associated with
Exhibits 22 and 32–36. The new facts set forth in the affidavits
are not “already in the record,” are “not speculative,” and
“could support a determination that counsel was ineffective.”
See Griffin, 2015 UT 18, ¶¶ 18–20. We are unaware of any
plausible tactical reason for counsel to have failed to require the
State to meet the more stringent burden regarding constructive
possession, and we cannot say that there is no reasonable
probability of a different outcome on six of the child
pornography charges if such evidence were introduced.
Therefore, we conclude that Jordan has met his rule 23B burden
with regard to these six charges, and we grant his rule 23B
8. The State’s expert explained that “metadata” is “data that’s
embedded within” an electronic file. With regard to digital
photographs, the State’s expert clarified that, where metadata is
available, it can include such things as the make and model of
the camera used to take the photograph, the date and time it was
taken, and whether the flash was on or off.
20160439-CA 16 2018 UT App 187State v. Jordan
motion on “constructive possession” grounds, as it relates to
Counts 14, 24, 25, 26, 27, 9 and 28.
II. Jordan’s Appeal
¶40 Because we have granted Jordan’s rule 23B motion only
with respect to twelve of Jordan’s thirty-three convictions, we
must proceed to consider his appeal. There, Jordan raises two
additional arguments. First, he takes issue with his convictions
on Counts 13 and 14, asserting that his counsel was ineffective
for “failing to object to the prosecutor’s misstatement of the law
about what constitutes sexual exploitation of a minor and for
failing to request an accurate jury instruction.” Second, Jordan
takes issue with his convictions on Counts 25–28, asserting that
without expert testimony regarding the age of the individuals
depicted in Exhibits 33–36, the State’s evidence was insufficient.
We address these arguments, in turn.
A
¶41 On Counts 13 and 14, Jordan was convicted of sexual
exploitation of a minor (child pornography) associated with the
two photographs of his toddler-aged son, one taken in the
bathroom and one taken along a canal. Jordan challenges those
convictions, asserting that those two photographs were
objectively not sexual in nature, and arguing that a defendant
cannot be convicted of child pornography charges regarding
objectively-innocuous photographs based simply on his intent in
possessing them. He asserts that his trial counsel was ineffective
for failing to raise these arguments at trial. We find Jordan’s
9. As discussed below, infra part II.B, ¶ 64, we vacate Jordan’s
conviction on Count 27 for other reasons, so there will be no
need for the trial court to concern itself with that count on
remand in connection with the rule 23B proceedings.
20160439-CA 17 2018 UT App 187State v. Jordan
arguments persuasive with regard to Exhibit 22 (the canal
photograph), but are unconvinced by his arguments with regard
to Exhibit 21 (the bathroom photograph).
¶42 A person commits the crime of sexual exploitation of a
minor when that person “knowingly produces [or] possesses . . .
child pornography” or “intentionally . . . views child
pornography.” Utah Code Ann. § 76-5b-201(1)(a) (LexisNexis
2017). Child pornography, in turn, is defined as “any visual
depiction . . . of sexually explicit conduct, where” either (a) “the
production of the visual depiction involves the use of a minor
engaging in sexually explicit conduct,” (b) “the visual depiction
is of a minor engaging in sexually explicit conduct,” or (c) “the
visual depiction has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexually explicit
conduct.” Id. § 76-5b-103(1). And “sexually explicit conduct” is
defined, among other definitions, as “the visual depiction of
nudity or partial nudity for the purpose of causing sexual
arousal of any person.” Id. § 76-5b-103(10)(f). 10
10. Jordan also asserts that counsel was ineffective for failing to
argue, based on the so-called Dost test, that Exhibits 21 and 22
were “not sexually explicit.” See United States v. Dost, 636 F.
Supp. 828, 832 (S.D. Cal. 1986) (establishing factors to determine
whether a photograph constitutes a lascivious exhibit of the
genitals or pubic area); see also State v. Bagnes, 2014 UT 4, ¶ 42,
322 P.3d 719 (explicitly adopting the Dost test “[i]n defining the
concept of lascivious exhibition of the genitals or pubic area of a
child” (internal quotation marks omitted)). However, criminal
liability on these two counts turns not on the “lascivious
exhibition of the genitals, [or] pubic region,” see Utah Code Ann.
§ 76-5b-103(10)(e) (LexisNexis 2017), but instead turns on Jordan
taking the picture “for the purpose of causing the sexual arousal
of any person,” see id. § 76-5b-103(10)(f); see also State v. Morrison,
(continued…)
20160439-CA 18 2018 UT App 187State v. Jordan
¶43 Jordan argues that his trial counsel performed deficiently
by failing to object when the State told the jury that the images of
Jordan’s toddler-aged child, which were not objectively sexual,
were sexually exploitative “merely because they were found on
. . . Jordan’s computer.” Jordan asserts that “the prosecutor
explicitly argued that what would not be child pornography
under normal circumstances was child pornography in this case
simply because . . . Jordan, whom the prosecutor claimed was a
pedophile, may have possessed the images.” Jordan asserts that
the State’s argument is at odds with our supreme court’s opinion
in State v. Morrison, 2001 UT 73, 31 P.3d 547.
¶44 In Morrison, two defendants challenged the
constitutionality of the sexual exploitation of a minor statute on
overbreadth grounds. Id. ¶¶ 6–12. The court rejected the
defendants’ overbreadth challenge, instead agreeing with the
State’s reading of the sexual exploitation of a minor statute that
“depictions of nude or partially nude minors, without more, are
not proscribed by the statute,” and that “the statute require[d]
that the depiction be for the purpose of sexual arousal of any
person.” Id. ¶ 9 (quotation simplified). In reaching this
conclusion, the court noted that “we look to the materials
themselves, not the intent of the possessor, to determine whether
they are proscribed as sexually exploitive.” Id. ¶ 10.
¶45 During closing argument in this case, the prosecutor
argued that Jordan “wasn’t taking a picture of his son because
he’s cute, because he wants a picture of his kid in the bathroom.
He was doing it because it’s child pornography.” The prosecutor
further asserted that, “in this case, in light of all of the evidence
that you’ve heard, there should be no doubt that the defendant
(…continued)
2001 UT 73, ¶ 12, 31 P.3d 547. Therefore, we determine that
counsel was not ineffective for failing to object on this ground.
20160439-CA 19 2018 UT App 187State v. Jordan
took that picture because he wanted a picture of a naked little
boy. Why? Because he’s sexually attracted to boys.” Jordan
asserts that these arguments improperly focused on his intent as
possessor in contravention of Morrison. See id.¶46 The State maintains that its closing argument was not at
odds with Morrison, because—at least with regard to the two
toddler photos—the State is seeking criminal sanctions against
Jordan not necessarily based on his intent as possessor but,
instead, based on his intent as producer. The State asserts that
the Morrison court, as well as the applicable statutory subsection,
see Utah Code Ann. § 76-5b-103(10)(f) (LexisNexis 2017),
expressly allows the imposition of criminal liability in child
pornography cases based on the intent of the individual who
produced the image. We agree with the State that its argument is
consistent with Morrison and the applicable statute.
¶47 Although the Morrison court saw potential constitutional
infirmities with imposing criminal liability for possession of
otherwise-innocuous photographs merely on the basis of the
intent of the possessor of the photograph, see 2001 UT 73, ¶ 10, it
saw no such infirmities with imposing criminal liability based on
the intent of the producer of the photograph, id. Indeed, the
court made clear that criminal liability can indeed turn
on the purpose for which the nude or partially
nude minor was depicted. If his possession was
knowing, and the nude or partially nude minor
was depicted for the purpose of causing sexual
arousal of any person, a defendant may properly
be subject to criminal liability. Under this reading
. . . , [the statute] is not unconstitutionally
overbroad.
Id. ¶ 12 (quotation simplified). The State asserts that Jordan’s
trial counsel was not ineffective for failing to object to the
20160439-CA 20 2018 UT App 187State v. Jordan
prosecutor’s closing argument, because it was proper under
Morrison for the jury to take into account Jordan’s intentions as
producer, and because the prosecutor’s argument specifically
discussed Jordan’s intent as producer rather than as possessor.
Indeed, the prosecutor argued that Jordan “took that picture
because he wanted a picture of a naked little boy,” and that he
did so “[b]ecause he’s sexually attracted to boys.”
¶48 We agree with the State’s interpretation of Morrison. One
way for the State to establish criminal liability under the
exploitation of a minor statute was to prove that the photograph
was created “for the purpose of causing sexual arousal of any
person.” See Utah Code Ann. § 76-5b-103(10)(f); see also Morrison,
2001 UT 73, ¶ 12. And one way to prove that the minor was
depicted “for the purpose of causing sexual arousal of any
person” is to establish that Jordan himself took the photograph
for the purpose of causing his own sexual arousal.
¶49 But this argument can only succeed if there is evidence
that Jordan was the one who took the photograph. Absent such
evidence, Jordan correctly argues that asking the jury to examine
his intent is in violation of Morrison, because his only established
relationship to the photograph is as its possessor. See Morrison,
2001 UT 73, ¶ 10.
¶50 As discussed above, Mother testified that Jordan took the
photograph marked as Exhibit 21 (the bathroom photo): she
identified Jordan as the person visible in the mirror in the photo.
Thus, Jordan’s trial counsel was not constitutionally ineffective
for failing to object to the prosecutor’s closing argument
regarding Exhibit 21, because the State’s argument—asking the
jury to consider Jordan’s intent in producing the photograph—
was not improper, and any such objection likely would have
been overruled. “The failure to raise futile objections does not
constitute ineffective assistance of counsel.” State v. Christensen,
2014 UT App 166, ¶ 10, 331 P.3d 1128 (quotation simplified).
20160439-CA 21 2018 UT App 187State v. Jordan
¶51 The same cannot be said, however, for Exhibit 22 (the
canal photograph), because the State introduced no evidence
regarding how it was produced. On cross-examination, Mother
testified that although she knew Jordan took the bathroom
photograph, she did not know who took the canal photograph.
Additionally, the State’s expert testified that there was no
metadata associated with the canal photograph. And the State
did not otherwise provide evidence that Jordan took the canal
photograph. Given this evidentiary posture, it would not have
been futile to object to the State’s closing argument regarding
Exhibit 22. With regard to this photograph, we conclude that the
elements of ineffective assistance of counsel are met: we perceive
no tactical reason why such an objection was not made, and we
conclude that there would have been at least a reasonable
probability of a better outcome for Jordan, with respect to this
one count, had such an objection been made.
¶52 Accordingly, we affirm Jordan’s conviction on Count 13
(the bathroom photograph), but remand for a new trial on Count
14, the count based on possession of Exhibit 22 (the canal
photograph). 11
11. Jordan also argues that his trial counsel was ineffective for
failing to object to jury instruction 62 and for not requesting an
“accurate” jury instruction. Jordan takes issue with the following
portion of jury instruction 62:
It is not an element of the offense of sexual
exploitation of a minor that the material appeal to
the prurient interest in sex of the average person
nor that the prohibited conduct need be portrayed
in a patently offensive manner.
He asserts that this instruction “gives support to the
prosecution’s legally incorrect standard” regarding the intent of
the possessor. We reject this argument. As an initial matter, this
(continued…)
20160439-CA 22 2018 UT App 187State v. Jordan
B
¶53 Second, Jordan asserts that, without supporting expert
testimony, the State presented insufficient evidence to sustain a
conviction on Counts 25–28—the counts convicting him for
possession of Exhibits 33–36, four photographs depicting nude
young males. We have already determined that these four
counts should be remanded for further proceedings associated
with the “constructive possession” issue raised in Jordan’s rule
23B motion. We proceed to discuss the merits of this issue,
because it will become relevant again in this case, no matter how
the “constructive possession” issue is eventually resolved. 12
¶54 The four photographs depict post-pubescent nude young
males. As noted above, the photographs were found on Jordan’s
(…continued)
instruction mirrors—word for word—Utah Code section 76-5b-
301(3). It is therefore an accurate statement of the law. And
second, Jordan’s argument ignores that the jury was entitled to
convict him of sexual exploitation of a minor for possessing even
relatively innocuous photos of naked toddlers, regardless of his
intent as a possessor, if it was convinced that he had improper
intent as a producer. Therefore, counsel was not ineffective for
failing to object to this instruction or for failing to request
additional instructions.
12. If the “constructive possession” issue is resolved in favor of
the State on remand (for instance, if it is determined that Mark
did not actually have access to Jordan’s laptop), then we would
need to resolve the question of whether Jordan’s convictions on
those counts can be upheld. Alternatively, if the “constructive
possession” issue is resolved in favor of Jordan on remand, a
new trial will be necessary on these counts, and the parties may
benefit from our guidance on these issues for the new trial.
20160439-CA 23 2018 UT App 187State v. Jordan
laptop computer, but none of the electronic files contained any
metadata, so no information was provided to the jury about
when the photographs were taken or by whom. Similarly, no
witness testified about the individuals depicted in the
photographs, and therefore no information was provided to the
jury about the age of the individuals (for example, whether they
are older or younger than eighteen).
¶55 Jordan correctly asserts—and the State acknowledges—
that it is the State’s burden to prove that the individuals depicted
in the photographs are minors. One obvious way for prosecutors
to meet this burden is to have the individual depicted in the
photograph testify, as Mark did in this case with regard to
Exhibits 23–30, that he or she was under the age of eighteen
when the photograph was taken. Alternatively, other
information may be available about the individual depicted in
the photograph that can be introduced into evidence through
documents or the testimony of other witnesses.
¶56 In many child pornography prosecutions, however, the
individual depicted in the photograph is unavailable, and no
additional information is known about them. That is the case
here with regard to the individuals depicted in Exhibits 33–36. In
such cases, at least where it is difficult for laypersons to tell
whether the individual depicted is a minor, Jordan argues that
the State cannot meet its burden without the assistance of expert
testimony. The State, by contrast, citing State v. Alinas, 2007 UT
83, 171 P.3d 1046, asserts that it is the jury’s responsibility to
determine the age of the individuals depicted in photographs,
and that expert testimony is never required in order to meet the
State’s burden of proof. On balance, we think that Jordan has the
better of the argument.
¶57 In Alinas, the defendant was convicted on child
pornography charges. In that case, he was found in possession of
photographs of very young girls, and even his attorney
20160439-CA 24 2018 UT App 187State v. Jordan
conceded “that the images in this case do not appear to be . . .
non-minors.” Id. ¶¶ 2–3, 18. Despite the fact that the individuals
depicted in the photographs were clearly minors, the defendant
nonetheless argued on appeal that “the State failed to prove the
age of the children depicted.” Id. ¶ 30. Our supreme court
rejected that argument on the facts of that case, stating that
“courts have generally held that the jury themselves, through
visual examination, are capable of making the determination
whether the children depicted are under eighteen years of age.”
Id. ¶ 31 (citing cases); see also id. ¶ 32 (stating that “whether the
children depicted are minors is a question of fact for the jury”).
¶58 The State focuses on this language from Alinas, and
asserts that expert testimony is not required in order for the State
to meet its burden of proving that the photographs constitute
child pornography. This argument is facially appealing—the
language our supreme court used could be interpreted in the
manner the State urges.
¶59 But we are ultimately persuaded by Jordan’s position on
this point. Jordan correctly points out that the cases our supreme
court cited in support of its conclusion are in accord: in obvious
cases, like Alinas, where the individuals depicted are clearly
minors, no expert testimony is required, but in close cases,
where a layperson might not be able to tell whether the
individual depicted is a minor, expert testimony is required. One
case often cited for this proposition is United States v. Katz, 178
F.3d 368 (5th Cir. 1999). In that case, the court stated that “[t]he
threshold question—whether the age of a model in a child
pornography prosecution can be determined by a lay jury
without the assistance of expert testimony—must be determined
on a case by case basis.” Id. at 373. Sometimes, it will be
“possible for the fact finder to decide the issue of age in a child
pornography case without hearing expert testimony.” Id.; see also
id. (stating that “[a] case by case analysis will encounter some
images in which the models are prepubescent children who are
20160439-CA 25 2018 UT App 187State v. Jordan
so obviously less than 18 years old that expert testimony is not
necessary or helpful”). In other cases, where it is difficult to tell
whether the individual depicted is older or younger than
eighteen, however, “expert testimony may well be necessary” to
help the trier of fact reach a reasoned conclusion. Id. Katz was
quoted at length, with approval, in United States v. Riccardi, 258
F. Supp. 2d 1212, 1218-19 (D. Kan. 2003), a case upon which our
supreme court relied in Alinas. See Alinas, 2007 UT 83, ¶ 31 n.5.
¶60 Indeed, in Riccardi, the government “moved to admit six
separate computer images” that it maintained constituted child
pornography. See Riccardi, 258 F. Supp. 2d at 1219. In order to
resolve the motion, the trial court “carefully analyzed each
computer file to determine whether a lay jury could determine
the age of the models without the assistance of an expert.” Id. It
determined that “only two of the six computer files contained
images of models who were so obviously less than 18 years old
that expert testimony was not necessary to assist the fact finder.”
Id. In accordance with this ruling, the court allowed into
evidence the two files containing photographs of obviously-
young individuals, but refused to allow the other four files into
evidence in the absence of supporting expert testimony. Id.¶61 The prevailing rule in most jurisdictions is as set forth in
Katz and Riccardi. We view our supreme court, by citing
favorably to Riccardi, as adopting (rather than rejecting) this
approach, and we interpret the Alinas court’s statements
regarding jury discretion as being tied to the facts of that case,
where the pictures in question obviously (and by stipulation)
depicted minors. We do not read Alinas as adopting a categorical
rule indicating that expert testimony is never necessary, even in
close cases where a layperson might be unable to tell whether
the individual depicted is a minor.
¶62 Under this approach, where the minority of the models is
in question, “the trial court must examine each image to be
20160439-CA 26 2018 UT App 187State v. Jordan
presented to the jury in order to make discrete assessments, in
discharge of its gatekeeping functions, which of the images can
be evaluated by the jury on a common-knowledge basis and
which require expert testimony to assist the jury in determining
whether the person depicted” is a minor. See State v. May, 829
A.2d 1106, 1120 (N.J. Super. Ct. App. Div. 2003). In this case, the
trial court did examine the photographs, but ultimately
determined that, because of the language used by our supreme
court in Alinas, it was for the jury to determine whether the
individuals depicted in the photographs were minors, and that
expert testimony was not required. 13 As noted, we read Alinas
differently.
¶63 We have independently examined the four photographs
in question, to determine whether a lay jury can “determine the
age of the models without the assistance of an expert.” Riccardi,
258 F. Supp. 2d at 1219. With respect to three of the images
(Exhibits 33, 34, and 36), we conclude that no expert assistance is
required to assist a jury in determining that the individuals
depicted are indeed minors. The individuals depicted in these
photographs clearly appear to be adolescent males under the age
13. Even if the trial court had made a “gatekeeping”
determination that the photographs clearly depicted minors
(rather than a legal determination that Alinas did not require any
such gatekeeping determination), we would review that
gatekeeping determination in this context for correctness,
because we do not perceive any factors that place the trial court
in any better position than we are to make a determination
regarding whether individuals depicted in photographs are
clearly minors. See In re Adoption of Baby B., 2012 UT 35, ¶¶ 40–
41, 308 P.3d 382 (stating that “[n]o deference is given to the
lower court’s analysis” where “the lower court has no
comparative advantage” in resolving the issue).
20160439-CA 27 2018 UT App 187State v. Jordan
of eighteen, and we do not think that a lay jury would need the
assistance of an expert to reasonably reach that conclusion.
¶64 Our judgment differs, however, with regard to Exhibit 35.
Two individuals appear in the photograph, but only parts of
each individual are visible. Because the images only partially
depict the two individuals, we cannot envision any principled
way for a lay jury to determine, without the benefit of expert
testimony to assist it, whether either of the individuals depicted
is in fact a minor. Accordingly, we conclude that the State’s
evidence on this count (Count 27) was insufficient. On that
count, therefore, we vacate the judgment of conviction. 14
14. As noted earlier, as part of his rule 23B motion, Jordan asserts
that his trial counsel was ineffective by failing to retain and hire
an expert witness who would have testified about the age of the
models depicted in Exhibits 33–36. We find this argument
unpersuasive, because the sort of expert testimony Jordan asserts
that his trial counsel should have introduced is unlikely to have
altered the jury’s conclusion that the models were minors.
Attached to his rule 23B motion, Jordan submits a report from an
expert witness, who opines that it is “impossible to determine”
whether the individuals depicted in the photographs are minors.
That is, Jordan’s proffered expert cannot offer a reliable opinion
that the individuals are in fact eighteen years old or older. All
the expert can say is that she cannot tell their ages, although with
regard to Exhibit 36 she acknowledges that the individual is a
“possible adolescent.” We have independently determined that
three of the photographs were clear enough to go to the jury
without expert testimony on the State’s side, and although we
acknowledge that defense counsel could have argued from the
expert’s assessment that the jury should harbor a reasonable
doubt about the age of the three models, we do not think that the
jury’s conclusion regarding the models’ minority would have
(continued…)
20160439-CA 28 2018 UT App 187State v. Jordan
C
¶65 Before turning to our conclusion, we deem it important to
note that Jordan mounts no convincing appellate arguments—
either on his direct appeal or in his rule 23B motion—regarding
many of the counts on which he was convicted. No fewer than
twenty counts 15 concerned Mark, and were supported largely by
Mark’s trial testimony. The only arguments Jordan advances on
appeal that even arguably could affect his convictions on these
counts are (a) the unsupported argument—rejected above, supra
¶ 32 & n.7—that Mark somehow participated in a scheme to
coach his younger brother to level false allegations of sexual
abuse, and (b) the argument—also rejected above with regard to
Counts 13 and 15–23, supra ¶ 37—that the State failed to prove
that Jordan had constructive possession of certain photographs.
Because we have rejected the only arguments that could
conceivably affect his convictions on these twenty counts, we
affirm those convictions.
CONCLUSION
¶66 We vacate Jordan’s conviction on Count 27 on the basis of
insufficient evidence, and remand on that count for the issuance
of an order of dismissal.
¶67 We affirm Jordan’s conviction on twenty-one of the thirty-
three counts with which he was charged. As noted, we affirm all
(…continued)
been significantly swayed by testimony from a defense expert
who could only say that she could not reliably determine
whether the models were minors.
15. Counts 3–4, 7–12, 15–23, and 30–32.
20160439-CA 29 2018 UT App 187State v. Jordan
twenty of the counts for which Mark was the primary
witness (Counts 3–4, 7–12, 15–23, and 30–32), and we affirm
Jordan’s conviction on Count 13, the sexual exploitation of a
minor count regarding Exhibit 21 (the bathroom photograph).
¶68 We grant Jordan’s rule 23B motion on the other eleven
counts, and we remand this case to the trial court for further
proceedings consistent with this opinion. Specifically, the trial
court should explore the following issues regarding Counts 1–2,
5–6, 29, and 33:
(a) Whether evidence exists that Luke made prior sexual
abuse allegations against anyone in the past,
including his stepsiblings and, if so, whether those
allegations were false;
(b) The extent to which trial counsel investigated any
such prior sexual abuse allegations on the part of
Luke; and
(c) What reasons objectively diligent trial counsel might
have had for not pursuing a rule 412 motion as part of
a trial strategy.
Also, the trial court should explore the following issues
regarding Counts 14, 24–26, and 28:
(a) Whether evidence exists that Mark had independent
access to Jordan’s laptop computer and, if so, whether
and how often he exercised that access; and
(b) Whether trial counsel knew of Mark’s access to the
computer and, if she did, the reasons objectively
diligent trial counsel might have had for not including
the issue in a trial strategy.
20160439-CA 30 2018 UT App 187State v. Jordan
And Jordan is entitled to a new trial on Count 14 in any event,
given that the State failed to establish that Jordan took the
photograph marked as Exhibit 22 (the canal photograph).
20160439-CA 31 2018 UT App 187