2020 UT App 81
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
PHILIP BOSWELL CASE,
Appellant.
Opinion
No. 20180361-CA
Filed May 29, 2020
Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 151400499
Stephen W. Howard and Bradley J. Henderson,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Philip Boswell Case appeals his convictions on seven
counts of sexual exploitation of a minor. We affirm.
BACKGROUND
¶2 In early 2012, Case sold an external computer hard drive to
a Utah woman (Buyer) via an online classified advertisement. In
November 2013, having used the drive only infrequently, Buyer’s
husband discovered “a lot” of child pornography featuring digital
images of “young girls, some of them scantily clad, posed in
provocative postures,” stored in the drive’s recycle bin. After
State v. Case
examining the thumbnail images 1 with Buyer, the couple reported
the matter to law enforcement. Agents from the Utah Attorney
General’s Office visited the couple’s home and confiscated the
drive.
¶3 Buyer could not remember the name of the person who
sold the drive, but an agent was able to identify Case from work-
related and family photos on the hard drive. All the digital images
on the drive had last been accessed in late 2011—two to three
months before Case sold the drive.
¶4 After confirming that several of the images on the drive
were child pornography, agents interviewed Case on the porch of
his house in early June 2014. Case confirmed that he sold the hard
drive to Buyer, but he denied knowing how any of the child
pornography could have gotten there. After about fifteen or
twenty minutes, Case’s wife (Wife) joined them on the porch.
When she learned that the agents were investigating child
pornography, she said that Case was “not into that. He’s not into
little girls. . . . [H]e’s into feet. . . . [H]e’s into pantyhose.” Agents
explained that they found images of adult foot pornography on
the drive, and Case admitted, “If you see feet photos, I’m into
that.” But he denied that he viewed pornographic images of
underage individuals. Wife consented to a search of the family’s
computers, and Case provided the agents with his work laptop
and its password. The search of the laptop revealed at least two
images of child pornography that had been downloaded three
days earlier. The agents also found a Tor browser on Case’s
1. “Thumbnails, or miniature computer graphics of the files
within a computer folder, are an organizational format that allows
the user to quickly view the folder’s contents. A thumbnail of a
photograph file is a miniature version of the saved image.” State
v. Newland, 2010 UT App 380, ¶ 3 n.1, 253 P.3d 71 (quotation
simplified).
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laptop. 2 The agents confiscated the laptop, and a forensic search
conducted after obtaining a search warrant revealed additional
images of child pornography, much of it featuring feet, shoes, and
pantyhose. In addition to child pornography, many images of
adult pornography, child erotica, and images of young girls in
hosiery or shoes were found on both the laptop and the hard
drive.
¶5 Case was charged with seven counts of sexual exploitation
of a minor related to the possession of the images of child
pornography located on the hard drive and found on his laptop
computer. See Utah Code Ann. § 76-5b-201(a) (LexisNexis Supp.
2019) (“A person is guilty of sexual exploitation of a minor: (a)
when the person: (i) knowingly produces, possesses, or possesses
with intent to distribute child pornography; or (ii) intentionally
2. A Tor browser “is primarily used to gain access to the dark web
and help maintain the user’s anonymity while browsing on the
Internet.” State v. White, No. A-4971-17T4, 2019 WL 2375391, at *2
(N.J. Super. Ct. App. Div. June 5, 2019) (quotation simplified).
“Tor and its cousin networks collectively make up the dark web
family. Tor was born to anonymize Internet usage. Specifically,
Tor provides anonymity to Internet users by masking their user
data and hiding information by funneling it through a series of
interconnected computers. Over 1000 servers exist in the Tor
network worldwide.” Whitney J. Gregory, Comment, Honeypots:
Not for Winnie the Pooh but for Winnie the Pedo—Law Enforcement’s
Lawful Use of Technology to Catch Perpetrators and Help Victims of
Child Exploitation on the Dark Web, 26 Geo. Mason L. Rev. 259, 276–
77 (2018) (quotation simplified); see also United States v. Bateman,
945 F.3d 997, 1000 (6th Cir. 2019) (“Beneath [the] easily accessible
world [of the standard Internet] lies a wholly separate world of
cyber content, known colloquially as the ‘dark-web,’ which is
largely inaccessible to average Internet users. Within this space, a
number of cyber outlets distribute questionable content.”
(quotation simplified)).
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distributes or views child pornography . . . .”). 3 Specifically, two
of the charged counts were related to illegal pornographic images
found on the hard drive that were alleged to have been possessed
or viewed by Case on or about December 1, 2011, and five of the
charged counts were related to illegal pornographic images found
on Case’s laptop computer that were alleged to have been
possessed or viewed by him on or about June 5, 2014. The
amended Information did not link each count with the possession
of a specific image; rather, the charging document merely
identified counts one and two as related to Case’s possession of
child pornography in 2011 and counts three through seven as
related to his possession in 2014.
¶6 Prior to trial, Case requested that the State provide notice
of any rule 404(b) evidence it would seek to admit at trial. See Utah
R. Evid. 404(b). The State initially sought to admit between
twenty-one and twenty-eight images of child pornography. The
State also planned to introduce a minimum of twenty-eight legal
images depicting child erotica; children wearing nylons,
pantyhose, and other various clothing; adults involved in foot and
pantyhose fetishes; and a cartoon image of a child being sexually
assaulted (collectively, legal erotica) to show that Case “engaged
in a general course of overlapping sexual conduct.” Specifically,
the State argued that Case’s “sexual fetishes and sexual behavior
with his wife are narrowly defined and have very strong nexus
with the pantyhose, foot fetish, and sexual interest images found
on [Case’s] computer devices that directly go toward the elements
of the charged offenses.” Alternatively, the State offered the
evidence of the legal erotica for the permissible purpose of
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident under
rule 404(b). Case filed a motion in limine to exclude from the jury’s
view the twenty-eight images of legal erotica identified in the
State’s notice, arguing that they were irrelevant or offered for
3. Because there have been no substantive changes to the relevant
statutory provisions, we cite the most current version of the code
throughout this opinion.
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improper character purposes. The trial court heard oral argument
and denied Case’s motion in an oral ruling from the bench. 4
¶7 On the first and second days of trial in February and March
2018, during a discussion of how the court should instruct the jury
on how it should consider the images of legal erotica, Case
renewed his objection to the admission of those images, asking,
“If they are not child porn[ography], what specifically are
they . . . what relevance does it have to be introduced?” The trial
court responded that it had ruled that the images of legal erotica
were admissible under rule 404(b) for a proper purpose: to show
“motive, opportunity, lack of mistake, lack of accident . . . [and]
all of those do meet the qualifications of the rule in [the court’s]
ruling.” Case and the State stipulated that the jury would be
instructed that the images of legal erotica were not introduced as
proof of a crime; rather, the evidence was being offered for a
proper purpose under rule 404(b). Ultimately, the trial court judge
ruled,
I stand by my ruling that the court has made a [rule
404(b)] determination after a long hearing or two.
And the court has determined that the evidence . . .
the prosecution intends to introduce in this case of
other connections of defendant through
circumstantial evidence for lack of a better term of
these other [images of legal erotica] are admissible
for purposes of proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of
mistake and lack of accident.
¶8 At trial, Case’s primary contention was that the State was
unable to show who was “responsible for putting the alleged child
4. The record does not contain the transcript of the hearing at
which Case’s motion was denied. There was no written order, and
the court’s minute entry merely states that Case’s counsel and the
prosecutor addressed the court, conversation ensued, and the
court gave findings and denied Case’s rule 404(b) motion.
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pornography on both the hard drive and the laptop.” He argued
that the State could show only circumstantial evidence linking
him to the possession of the illegal images and could not prove
directly that he was “the one [who was] at the computer” when
“the child pornography [was] being downloaded.” Case further
argued that there was an “apparent disconnect” between the
images of child pornography on the hard drive and on his laptop
and the other evidence that showed images of legal erotica.
¶9 Wife, who had divorced Case by this time, testified that
Case had a “foot fetish” and that “he liked feet and pantyhose.”
She revealed that during their marriage, Case liked to rub his
penis on her pantyhose-clad feet. Sometimes Case did this while
Wife was sleeping, and she once caught him taking pictures of this
activity. Wife also revealed that Case frequently looked at “foot
websites and pantyhose websites” and was very secretive about
his Internet-viewing activities. But Wife also testified that she had
never observed Case viewing images of children.
¶10 In addition to testimony from investigating agents and
Case’s family, and as part of its case-in-chief, the State offered the
evidence of the legal erotica and illegal pornographic images
seized from Case’s laptop and the hard drive to prove that Case
was the one who possessed or viewed the child pornography. At
the end of the third day of trial, before the State published the
images and rested its case, so that the jury did not have to view
each exhibit individually, Case offered to stipulate that the images
identified by the State as child pornography met the statutory
definition of child pornography:
We are willing to concede that point and stipulate to
it, obviously, for purposes of judicial efficiency,
obviously, also for purposes of saving the jury who
has already indicated to us in chambers through
voir dire, that they have an interest in not looking at
the child pornography and would be satisfied with
some state witness describing the child
pornography, explaining the data behind it, and
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saving them from viewing something that they
clearly, when you watched the jury look at this first
image, did not want to see.
Case further argued that under rule 403 of the Utah Rules of
Evidence, he would be prejudiced if the jury was able to view each
image of child pornography:
What we are objecting to is the presentation of the
evidence under [rule] 403 in offering a substitute
way for the evidence to be presented. The evidence
can still get in as descriptions and coupled with the
testimony of an individual that personally worked
on viewing these images. . . . And [the witness] can
go into whatever detail [the prosecutor] wants them
to go into.
But this court is well within its authority
under [rule] 403 to make a ruling on this matter and
say that there is no significant probative value here
in showing these images to the jury. And if there is
any probative value remaining, it is so significantly
outweighed by the danger of prejudice to not only
the jury and their ability to objectively and
impartially weigh this evidence, because they will
become so angered and inflamed by what they have
seen, but it is also unnecessarily cumulative and,
frankly, a waste of time. [Rule] 403 recognizes that
that is a proper reason to object to the evidence
being presented as is.
¶11 The State responded that it had the right to present
evidence to prove its case and the jury had “a need to see how
well all of these pictures match [Case’s] fetishes. And that is [the
State’s] whole case. And not showing those pictures undermines
everything of how [the State has] set up to attack this case.” The
trial court denied Case’s offer to stipulate that the images were
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child pornography and his motion to exclude the images under
rule 403. In summarizing its ruling on the issue, the court stated,
[T]he court is mindful of [the prosecutor’s]
explanation that the State’s case here appears to rest
on a relationship between some photographs that
may not constitute child pornography . . . and the
element images on which the jury could convict.
It is quite obvious to [the court] that the State
cannot pursue that theory if they don’t present the
images to the jury, because the whole theory rests
on the fact that many of the images are similar to
each other. And many of the images are similar to
images that are not child pornography but have the
common thread, the common theme of certain types
of clothing, especially certain types of clothing.
And the State agreed with this characterization of the importance
of the legal erotica with regard to the child pornography: “Here
our whole case, as the court has indicated, is the nexus between
[Case] and his uniqueness with his interests and his admissions of
his interests with what is seen and being cataloged and stored.”
¶12 Ultimately, fifty images of child pornography and legal
erotica were admitted into evidence at trial. The jury was
instructed that thirteen (eleven from the hard drive and two from
the laptop) of those images were “legal images” and “not child
pornography.” 5 The jury was further instructed that these thirteen
images of legal erotica were “not admitted to prove a character
trait of [Case] or to show that he acted in a manner consistent with
5. Four of these images depicted stimulation of a penis by feet,
three wearing pantyhose; five depicted legal images of young
girls wearing hosiery; and four were drawings, rather than
photographs, of young girls being sexually abused or portrayed
in a sexually explicit manner.
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such a trait” and that it could consider the evidence “only for the
limited purpose of proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” The State identified the other thirty-seven
images (twenty-eight from the hard drive and nine from the
laptop) as constituting child pornography. 6 Instruction 13
informed jurors that they must “reach a unanimous agreement on
a verdict” and that “every single juror must agree with the verdict
before [Case could] be found ‘guilty’ or ‘not guilty.’”
¶13 The jury convicted Case on seven counts of sexual
exploitation of a minor. The verdict form did not require special
findings; it merely required the jury to reach a verdict on whether
Case was guilty of each count as charged in the amended
Information.
ISSUES AND STANDARDS OF REVIEW
¶14 Case first argues that the trial court erred in admitting
images of legal erotica and evidence of marital sexual activities.
With regard to the admission of this evidence, “we afford district
courts a great deal of discretion in determining whether to admit
or exclude evidence and will not overturn an evidentiary ruling
absent an abuse of discretion.” State v. Klenz, 2018 UT App 201,
¶ 30, 437 P.3d 504 (quotation simplified). But here we are hard-
pressed to determine whether the trial court abused its discretion
in admitting the challenged evidence because Case has failed to
include in the record on appeal the transcript of the motion-in-
limine hearing at which the trial court denied Case’s motion to
exclude the evidence. “When crucial matters are not included in
6. Seven of these images were graphic—one depicted child rape,
another showed child sodomy, and five featured sexually explicit
displays of underage female genitalia. Two of these explicit
images were found on the hard drive and five were found on
Case’s laptop. The other thirty images (two from the laptop and
twenty-eight from the hard drive) depicted scantily clad young
girls, some of whom were wearing hosiery.
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the record, the missing portions are presumed to support the
action of the trial court.” State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d
1278 (quotation simplified).
¶15 Case argues in the alternative that his trial counsel was
ineffective for failing to object to the admission of the legal erotica
and to the admission of the evidence of Case’s sexual relationship
with Wife. “When a criminal defendant raises a claim of
ineffective assistance of counsel for the first time on appeal, there
is no trial court ruling to examine. We must therefore decide, as a
matter of law, whether [the defendant] received constitutionally
ineffective assistance of counsel.” State v. Burnett, 2018 UT App
80, ¶ 19, 427 P.3d 288 (quotation simplified). But to the extent that
Case’s complaint that his counsel was ineffective for not objecting
to the admission of the images of legal erotica or for not
challenging the testimony of Wife was addressed by the trial
court’s pretrial ruling on his motion in limine, we “presume the
regularity of the proceedings below” in the absence of a transcript,
Pritchett, 2003 UT 24, ¶ 13, and will not address these issues on
appeal. 7
¶16 Case’s final argument on appeal is that the trial court erred
by failing to instruct the jury on the requirement that it must reach
a unanimous verdict. Case did not object to the court’s
instructions or propose a specific instruction or special verdict
form. Therefore, this issue was not preserved, and we review it
for plain error. See State v. Reigelsperger, 2017 UT App 101, ¶ 38,
400 P.3d 1127. To succeed under the plain error doctrine, Case
must demonstrate not only that the trial court’s failure to instruct
7. The presumption of regularity, applied in this case, is far from
unreasonable. Based on the trial court’s reference to what
transpired at the hearing addressing Case’s motion to exclude
certain images of legal erotica, see supra ¶ 11, it is likely that the
trial court accepted an argument advanced by the State that, given
Case’s denial of any knowledge of the child pornography, the fact
that those images were interspersed among others readily
attributable to Case, namely those featuring foot and hosiery
fetish imagery, would go a long way in refuting Case’s claim.
20180361-CA 10 2020 UT App 81
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the jury that it needed to agree unanimously on each offense by
linking each associated count to a specific image was error but
also that the error should have been obvious to the trial court and
“that the error was of such a magnitude that there is a reasonable
likelihood of a more favorable outcome for the defendant.” State
v. Alires, 2019 UT App 206, ¶ 26, 455 P.3d 636 (quotation
simplified).
ANALYSIS
I. Admission of Legal Erotica and Evidence of Sexual Interests
¶17 Case contends that the trial court erred in admitting images
of legal erotica and evidence of his marital sexual activities, as
well as his sexual interest in feet and hosiery. He argues that the
use of this evidence “constituted an improper use of character
evidence” and “did not support any proper non-character
purpose.” Rather, Case argues that this evidence “acted to inflame
the passions of the jury, to create prejudice against [him], and to
convince the jury that his sexual interests and addictions must
have caused him to view and possess child pornography.” 8
¶18 But Case fails to acknowledge on appeal that he filed a
pretrial motion seeking to exclude the twenty-eight images of
legal erotica that the State identified in its rule 404(b) notice and
that the trial court denied his motion in an oral ruling from the
bench. Case also fails to acknowledge that the trial court
8. On appeal, Case suggests that certain statements made by the
prosecutor during opening and in closing that Case suffered from
a pornography addiction that made him more likely to possess
child pornography were improper. But Case does not argue that
these statements constituted prosecutorial misconduct. Even if he
did make such argument, “to demonstrate prosecutorial
misconduct, a defendant must show that the actions or remarks
of counsel call to the attention of the jury a matter it would not be
justified in considering in determining its verdict.” State v. Bair,
2012 UT App 106, ¶ 32, 275 P.3d 1050 (quotation simplified).
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reaffirmed at trial its prior ruling on his motion to exclude under
rule 404(b) and stated again that the images of legal erotica were
admissible.
¶19 A party bringing a claim of error before this court “has the
duty and responsibility to support such allegation by an adequate
record.” State v. Harper, 2006 UT App 178, ¶ 21, 136 P.3d 1261
(quotation simplified). When an appellant fails to provide an
adequate record on appeal, this court “presume[s] the regularity
of the proceedings below.” State v. Pritchett, 2003 UT 24, ¶ 13, 69
P.3d 1278. And “when crucial matters are not included in the
record [on appeal], the missing portions are presumed to support
the action of the trial court.” State v. Chettero, 2013 UT 9, ¶ 32, 297
P.3d 582 (quotation simplified). Without the transcript of the
hearing the trial court held on Case’s rule 404(b) motion to
exclude the images of legal erotica, and without a record of the
reasons why the trial court denied Case’s motion, we cannot
review the basis of the trial court’s decision to determine whether
the trial court abused its discretion in denying the motion.
¶20 Case also argues that his trial counsel provided ineffective
assistance in failing to object to the admission of the additional
images of legal erotica and sexual-interest evidence. But as set
forth above, trial counsel did object to that evidence by filing a
written motion prior to the trial and argued at a hearing before
the trial court that the court should exclude that evidence from
being presented to the jury. To the extent that Case alleges his trial
counsel should have done more or presented a different argument
on this issue, he has not provided a record of the hearing at which
the court denied his motion, so we cannot analyze the correctness
of the trial court’s ruling or the effectiveness of trial counsel’s
representation. Accordingly, we “presume the regularity of the
proceedings below” and affirm the trial court’s ruling. See
Pritchett, 2003 UT 24, ¶ 13.
II. Adequacy of the Jury Instructions
¶21 Case also contends that the court committed plain error in
failing to instruct “the jury to be unanimous as to which factual
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elements violated each count, which victim applied to each count,
when each count was violated or where they were violated.” See
Utah Const. art. I, § 10 (“In criminal cases the verdict shall be
unanimous.”). “Where the evidence indicates that more than one
distinct criminal act has been committed but the defendant is
charged with only one count of criminal conduct, the jury must be
unanimous as to which act or incident constitutes the charged
crime.” State v. Furseth, 233 P.3d 902, 904 (Wash. Ct. App. 2010);
see also State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951 (“Jury
unanimity means unanimity as to a specific crime and as to each
element of the crime.”); State v. Noltie, 809 P.2d 190, 198 (Wash.
1991) (en banc) (“In multiple acts cases where several acts are
alleged, any one of which could constitute the crime charged, the
jury must be unanimous as to which act or incident constitutes the
crime.”). 9
¶22 Here, the court did instruct the jury that it needed to reach
a unanimous verdict on whether the State proved each charge
beyond a reasonable doubt: “Because this is a criminal case, every
single juror must agree with the verdict before the defendant can
be found ‘guilty’ or ‘not guilty.’” But the court’s instruction did
not specify that the jury needed to unanimously agree on each
specific instance of sexual exploitation of a minor. See State v.
Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314. That is, the evidence the
State presented at trial indicated that Case committed thirty-seven
distinct or independent criminal acts over two distinct periods:
twenty-eight images depicting child pornography were on the
hard drive and dated from late 2011, and nine images depicting
child pornography were on Case’s laptop and dated from June
9. The State argues that Case cannot prevail on his claim of plain
error because his trial counsel invited any error in the trial court’s
instruction by approving Instruction 13. But we agree with Case
that his unanimity objection is not limited to Instruction 13, so
trial counsel’s approval of that instruction does not end our
inquiry. The error of not instructing the jury that it must
unanimously agree on the specific criminal act for each charge to
convict should have been obvious to the trial court. See State v.
Saunders, 1999 UT 59, ¶ 65, 992 P.2d 951.
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2014. See Utah Code Ann. § 76-5b-201(3) (LexisNexis Supp. 2019)
(“It is a separate offense under this section: (a) for each minor
depicted in the child pornography; and (b) for each time the same
minor is depicted in different child pornography.”); see also State
v. Rasabout, 2015 UT 72, ¶ 9, 356 P.3d 1258 (“[T]he allowable unit
of prosecution for child pornography is each visual
representation.”); State v. Morrison, 2001 UT 73, ¶ 26, 31 P.3d 547
(“The clearest reading of the statute is that each individual ‘visual
representation’ of child pornography that is knowingly possessed
by a defendant constitutes the basis for a separate offense under
section [76-5b-201] . . . . [The defendant’s] possession of multiple
photographs depicting child pornography constituted multiple
violations of [the statute].” (quotation simplified)). Apparently as
a matter of prosecutorial restraint, Case was charged with only
seven counts of sexual exploitation of a minor related to his
possession or viewing of these thirty-seven images of child
pornography. Specifically, two counts in the amended
Information were related to the images Case was alleged to have
stored on the hard drive in 2011, and five of the counts were
related to images found on Case’s laptop computer in 2014. But
the State did not specifically link any of the counts to any specific
image among the thirty-seven images that Case was willing to
stipulate constituted child pornography. Rather, the jury was left
with the task to identify and unanimously agree on seven specific
acts of sexual exploitation of a minor from among the thirty-seven
images that were identified as child pornography. 10
¶23 We agree with Case that once the State failed to elect
which act of possessing or viewing child pornography supported
each charge in the amended Information, the jury should have
been instructed that it needed to unanimously agree on which
specific criminal act or image satisfied each charge to convict. See
State v. Alires, 2019 UT App 206, ¶ 22, 455 P.3d 636; see also State v.
10. In fact, at trial, in reference to the thirty-seven images of child
pornography that it planned to present to the jury, the prosecutor
stated that “these are all being introduced and we are letting [the
jury] pick which seven.”
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Santos-Vega, 321 P.3d 1, 7 (Kan. 2014) (“[E]ither the State must
have informed the jury which act to rely upon for each charge
during its deliberations or the district court must have instructed
the jury to agree on the specific criminal act for each charge in
order to convict.”), quoted in Alires, 2019 UT App 206; Hummel,
2017 UT 19, ¶ 26 (stating that a unanimous verdict “requires
unanimity as to each count of each distinct crime charged by the
prosecution and submitted to the jury for decision”); State v.
Vander Houwen, 177 P.3d 93, 99 (Wash. 2008) (en banc) (“To ensure
jury unanimity in multiple acts cases, we require that either the
State elect the particular criminal act upon which it will rely for
conviction, or that the trial court instruct the jury that all of them
must agree that the same underlying criminal act has been proved
beyond a reasonable doubt.” (quotation simplified)).
¶24 To prove plain error, as in the case here, “a defendant must
establish that (i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful. If any one
of these requirements is not met, plain error is not established.”
State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation
simplified). Thus, even if we have concerns that the trial court
erred in instructing the jury on the issue of unanimity, we do not
need to resolve that issue if Case “has failed to demonstrate
prejudice, the third prong of our plain error review.” See State v.
Saenz, 2016 UT App 69, ¶ 12, 370 P.3d 1278. And “an error is
harmful if, absent the error, there is a reasonable likelihood of a
more favorable outcome for the appellant, or phrased differently,
if our confidence in the verdict is undermined.” State v. Bond, 2015
UT 88, ¶ 49, 361 P.3d 104 (quotation simplified).
¶25 To determine whether the defendant has shown a
reasonable probability of a more favorable outcome, this court
will consider the totality of the evidence presented to the jury. See
Alires, 2019 UT App 206, ¶ 27 (“A verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.”
(quotation simplified)); see also Saunders, 1999 UT 59, ¶¶ 5, 13, 57,
65 (holding that “factual issues in the case” created a reasonable
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likelihood that a proper unanimity instruction would have
resulted in a more favorable outcome for the defendant).
¶26 Based on the record before us, we conclude that Case has
not shown a reasonable likelihood of a different result at trial even
though the court erred in instructing the jury as to unanimity. In
other words, there was not “a reasonable likelihood of a more
favorable outcome” for Case, nor is “our confidence in the verdict
. . . undermined” in the presence of that error. See Bond, 2015 UT
88, ¶ 49 (quotation simplified). The fundamental issue before the
jury was not whether the thirty-seven images found on the laptop
and the hard drive constituted child pornography. Indeed, in an
effort to prevent the State from showing the images to the jury,
Case was “willing to concede . . . and stipulate to” the fact that
each of the thirty-seven images found on the hard drive and
laptop depicted at least one minor engaged in sexually explicit
conduct. The issue for the jury to determine was whether Case
was the person responsible for downloading and storing the
images on those devices and whether he possessed or viewed the
images depicting child pornography with the requisite intent.
While it was error for the trial court not to instruct the jury that it
needed to unanimously agree on which act formed the basis of
each count on which Case was convicted, there is not a reasonable
likelihood of a more favorable outcome for Case had the jury been
thus instructed. Even if the jurors had been instructed that they
each had to agree on which seven images satisfied each specific
count set forth in the amended Information, because the jury
found that the State had proved beyond a reasonable doubt that
Case possessed and viewed child pornography, there is little
doubt the jury would have selected the seven most sexually
graphic depictions of child pornography among the thirty-seven
that were admitted into evidence, see supra note 6, resulting in the
same seven convictions for Case. See State v. Percival, 2020 UT App
75, ¶ 29 (concluding that there was not a “reasonable likelihood
that the jury would not have agreed on any one victim” being
stabbed when “the evidence overwhelmingly established” that
three individuals were stabbed and the defendant was “the sole
person wielding a knife” during a fracas).
20180361-CA 16 2020 UT App 81
State v. Case
¶27 Thus, we conclude that Case has not shown the prejudice
necessary to obtain plain error relief in relation to an error in the
trial court’s unanimity instructions.
CONCLUSION
¶28 We conclude that Case has not demonstrated that the trial
court erred in its decision to deny Case’s motion to exclude or that
his trial counsel provided ineffective assistance in failing to object
to the admission of certain evidence. And the jury instructions
regarding unanimity, insofar as they were defective, did not
prejudice Case.
¶29 Affirmed.
20180361-CA 17 2020 UT App 81