State v. Darnstaedt

              THE UTAH COURT OF APPEALS

                      STATE OF UTAH,
                        Appellee,
                            v.
                    GEORGE DARNSTAEDT,
                        Appellant.

                            Opinion
                       No. 20180922-CA
                    Filed February 19, 2021

           Fourth District Court, Heber Department
              The Honorable Jennifer A. Brown
                        No. 141500198

          Emily Adams and Freyja Johnson, Attorneys
                       for Appellant
          Sean D. Reyes and Jeffrey D. Mann, Attorneys
                          for Appellee

  JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
 JILL M. POHLMAN and SENIOR JUDGE KATE APPLEBY concurred. 1

HAGEN, Judge:

¶1    A jury convicted George Darnstaedt of twelve counts of
sexual exploitation of a minor for knowingly possessing
child pornography discovered during a search of his
home computer. He appeals those convictions, contending
they were based on insufficient evidence and that his trial
counsel was constitutionally ineffective for making a generic


1. Senior Judge Kate Appleby began work on this case as an
active member of the Utah Court of Appeals. She completed her
work as a senior judge sitting by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
                       State v. Darnstaedt


directed verdict motion rather than pointing to specific
deficiencies in the evidence. Darnstaedt also argues his counsel
was ineffective for not ensuring that the jury was properly
instructed on various elements of the offense and for not
objecting to alleged prosecutorial misconduct during closing
arguments. We reject those arguments and affirm Darnstaedt’s
convictions.


                        BACKGROUND

¶2      On June 17, 2013, a Utah law enforcement officer accessed
Ares, a peer-to-peer file sharing network, to look for users
illegally sharing child pornography. One particular IP address
offered to share ninety-two files with hash values associated
with known images of child exploitation. The officer
downloaded one file and confirmed that it was indeed
child pornography.

¶3     Through an administrative subpoena issued to the
internet service provider, the officer identified the residence
using the IP address at the time of the connection. Further
investigation revealed that Darnstaedt lived at that address with
his wife and two young daughters. Police also determined that
the wireless networks at the house were locked so that no one
outside the house could have gained access to the internet using
that IP address without a password. Based on this information,
police obtained a warrant to search Darnstaedt’s house for
evidence of child pornography.

¶4      Police executed the search warrant on July 11, 2013. When
an officer explained to Darnstaedt that the search was part of an
investigation into child pornography being distributed from the
residence, Darnstaedt appeared shocked and repeated “the word
‘distributed’ with a little exclamation on the end, meaning like a
question.” During the search, the officers seized a desktop
computer from a bedroom that had been converted into a home
office space.



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                        State v. Darnstaedt


¶5     A forensic examination of the computer revealed fifty-five
items that appeared to depict “underage individuals in fully
nude, nude, or explicit-type pictures.” The investigator noted it
was unsurprising that the forensic team found fewer illicit files
on the computer than the IP address had offered to share
through the peer-to-peer network because some users “consume
the pornography and then delete it immediately afterward”
rather than “hoard[ing]” it.

¶6     The State ultimately charged Darnstaedt with twelve
counts of sexual exploitation of a minor under Utah Code section
76-5b-201(1)(a). Each count was based on a specific file found on
the computer’s hard drive. The files contained graphic
photographs and videos displaying the genitalia of prepubescent
females and prepubescent females being raped and sodomized
by adult males.

¶7       At trial, the State presented evidence explaining where
each of the twelve files was found on the hard drive. Eight of the
files were in the “recycle bin,” indicating that a user
purposefully downloaded then deleted them. A forensic
examiner explained that when a user downloads a file, the data
that makes up that file is saved on the hard drive and the
operating system logs its location in a master file table. If a user
later deletes the file, the file appears in the recycle bin. But the
data is not erased from the hard drive, and the operating system
still tracks where the data is stored. As a result, the file remains
accessible to the user as “an active file,“ and the user can easily
recover it from the recycle bin.

¶8      Three of the files were located in “unallocated space,”
indicating that they “had to have existed as . . . active file[s] at
some point in time,” after which a user had either deleted them
and then removed them from the recycle bin or had used a
shortcut key to bypass the recycle bin and permanently delete
them directly to the unallocated space. To move a file to the
unallocated space, a user would generally “drag and drop [the
file] into the recycle bin and then go into the recycle bin and hit



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                         State v. Darnstaedt


‘empty [recycle] bin.’” When the user empties the recycle bin, the
file’s data remains on the hard drive, but the operating system
no longer tracks its location, and it allows that unallocated space
to be used for storing new information. The old data remains in
the unallocated space until it is overwritten. Until that happens,
the data can be recovered with specialized forensic software.
Although a file in unallocated space is “generally inaccessible”
to the user, “[i]t was once an active file that the user was able to
see” and “went through the process of deletion.”

¶9      The last file of the twelve files that led to the charges was
in the temporary internet cache of Darnstaedt’s computer. A
defense expert explained that temporary internet files are
automatically saved to the computer’s hard drive to speed up
internet browsing when a user visits a website. While the “user
simply sees the interface” of the web browser, the “computer’s
doing all the communication” from “behind the scenes.”
Although the temporary internet cache saves files automatically,
they are “considered active files” accessible to the user, unlike
files in unallocated space.

¶10 Temporary files in an internet cache as well as data in
unallocated space can be erased using specialized software, such
as CCleaner. Although legitimate users can use CCleaner “for
general computer maintenance” and “to free up space” to
improve computer performance, forensic examiners often see
such data-erasing programs in child pornography cases.

¶11 Investigators found that CCleaner had been installed on
Darnstaedt’s computer, along with Ares, the peer-to-peer
network used for downloading and sharing files. To download
files from other computers on the Ares network, a user would
have to deliberately search for files and choose to download
them to a designated folder. They would not download directly
to the recycle bin.

¶12 Investigators also recovered the registry of files on
Darnstaedt’s computer that were recently viewed or opened. The



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                       State v. Darnstaedt


list included “a considerable amount of files” that contained
“key words that are consistent with files of child pornography.”
The case agent testified that people seeking child pornography
use those key words—such as the acronym “PTHC” for “preteen
hard core”—“as search terms when searching for files like this
through the peer-to-peer network.” For a file to appear on the
registry list, a user would have to open the file after it was
downloaded to the computer. Alongside the file names related
to child pornography, the registry listed recently opened files
such as “George’s iPhone pics” and “George Darnstaedt
vacation November 2011.”

¶13 The State presented evidence that the computer was used
almost exclusively by Darnstaedt. Darnsteadt’s wife 2 testified
that she “very rarely” used the computer and had entirely
“stopped going into the [home] office” sometime before the
police executed the search warrant. In contrast, Darnstaedt spent
most of his time “in his office at his desk at the computer.”
During the two months before the search, including the time
when the IP address associated with the house offered to share
child pornography, Darnstaedt was unemployed and at home
alone while his wife worked most of the day away from home
and commuted nearly an hour each way. When his wife was
home, Darnstaedt spent at least three to four hours a day at the
computer on weekdays and even more time over the weekends.

¶14 Three user profiles had been created on the computer.
Darnstaedt’s wife testified that he originally set up a separate
user profile for himself under his nickname “Jersey” and one for
her under her nickname “Froggy,” but that he regularly used her
Froggy profile. The computer contained a third user profile
named “Camie,” which was associated with the file saved in the
temporary internet cache, but there was no direct evidence


2. Darnsteadt and his wife were divorced by the time of trial; we
continue to refer to her as “his wife” throughout this opinion for
consistency’s sake.




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                       State v. Darnstaedt


explaining why this profile had been created or who used it. No
one named Camie lived in the household. 3

¶15 Investigators found that someone had logged into the
Froggy profile over 3,000 times and that it was the only profile
on the computer connected to the Ares peer-to-peer file sharing
network. The only occupants of the house were Darnstaedt, his
wife, and their two young children, ages five and three years
old. Darnstaedt’s wife testified that she had never heard of Ares
and had no idea how to use it. She further testified that she had
never downloaded child pornography and had no “interest in
seeing pictures or videos of children being raped.”

¶16 Darnstaedt was the only other adult in the home.
Although they did have an occasional housekeeper, teenage
babysitter, or visiting family member or friend, the wife did not
recall “anyone going into the office to use the computer” and
testified that she never gave any of the passwords for the
computer to any friends or visitors. She could not remember a
time when any visitor would have had access to the computer or
been alone for extended periods of time in the office.

¶17 The jury convicted Darnstaedt of all twelve counts of
sexual exploitation of a minor. He now appeals.


            ISSUES AND STANDARDS OF REVIEW

¶18 Darnstaedt first challenges the sufficiency of the evidence
to support his convictions. When reviewing a preserved
sufficiency of the evidence claim, we ask “simply whether the
jury’s verdict is reasonable in light of all of the evidence taken


3. Darnstaedt’s wife testified she has a sister-in-law named
Camie, but no evidence suggested that the sister-in-law or
anyone else ever used the computer, much less set up a separate
user profile under that name.




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                        State v. Darnstaedt


cumulatively, under a standard of review that yields deference
to all reasonable inferences supporting the jury’s verdict.” State
v. Ashcraft, 

, 

. On the other hand,
when a sufficiency-of-the-evidence claim is not preserved but is
raised under the ineffective assistance of counsel exception to
preservation, it “presents a question of law, and to prevail on
[such] ineffective assistance of counsel claims, [the defendant]
must demonstrate that counsel’s failure to raise the sufficiency
issues to the trial court’s attention was both objectively deficient
and prejudicial.” State v. Heath, 

, 

 (cleaned up).

¶19 Darnstaedt further argues that his counsel was ineffective
because he “(1) did not ensure that the jury was properly
instructed on the meaning of possession and the correct mens
rea and (2) did not object to the prosecutor’s misstatement
during rebuttal closing argument.” Where, as here, “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.” Layton City v. Carr, 

, 

 (cleaned up). 4




4. Darnstaedt also argues that the cumulative effect of his
counsel’s errors deprived him of a fair trial. We will reverse
under the cumulative error doctrine if “(1) an error occurred, (2)
the error, standing alone, has a conceivable potential for harm,
and (3) the cumulative effect of all the potentially harmful errors
undermines [our] confidence in the outcome.” State v. Martinez-Castellanos, 

, 

. On the other hand, if
we determine “that either a party’s claim did not amount to an
error, or that the claim was an error but has no potential to cause
harm on its own, the claim cannot weigh in favor of reversal
under the cumulative effects test.” 

 Because we ultimately
conclude that counsel committed no errors that, on their own,
                                                      (continued…)


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                        State v. Darnstaedt


                            ANALYSIS

                  I. Sufficiency of the Evidence

¶20 Darnstaedt first argues the State produced insufficient
evidence to show that he knowingly possessed child
pornography. Specifically, he argues there was insufficient
evidence that he knew about the files, “either because he
downloaded them or otherwise knew they existed on the
computer,” or that he possessed the files, especially given that
some of them were not accessible by an ordinary user at the time
of the forensic examination. These arguments were not
presented at trial.

¶21 Although Darnstaedt made a generic motion for a
directed verdict, it was inadequate to preserve the sufficiency
issues raised on appeal. To preserve an issue for appeal, a
defendant must lodge “a timely and specific objection” in the
district court. State v. Rogers, 

, 

(cleaned up). If a motion for a directed verdict “makes general
assertions but fails to assert the specific argument raised on
appeal, [it] is insufficient to preserve the more specific argument
for appeal.” 

 (cleaned up). “Such specificity is necessary to
allow the district court to assess allegations by isolating relevant
facts and considering them in the context of the specific legal
doctrine placed at issue.” 

 (cleaned up).

¶22 At trial, defense counsel stated, “I’d just move for a
directed verdict based upon the evidence that’s been presented. I
don’t see how a reasonable jury could find beyond a reasonable
doubt that Mr. Darnstaedt was guilty. I’ll submit.” Darnstaedt
contends that this was enough to preserve the challenges to the
sufficiency of the evidence made on appeal because “the basis


(…continued)
would have had a conceivable potential for harm, there are no
errors to accumulate.




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                        State v. Darnstaedt


for the directed verdict motion was clear in context,” given that
his counsel “did argue specifics in the preliminary hearing when
he argued against bindover.”

¶23 Although “a generic motion for directed verdict will
preserve a specific ground for appeal when the specific
ground for an objection is clear from its context,” State v. Isom,

, 

 (cleaned up), Darnstaedt
has not shown that this is such a case. At trial, Darnstaedt did
not renew his preliminary hearing arguments and the
district court’s ruling did not refer to those arguments
or otherwise suggest that the basis for the motion was apparent
to the court. Because the issue raised on appeal was
not “presented to the trial court in such a way that the trial
court ha[d] an opportunity to rule on that issue,” see State v.
Gallegos, 

, 

 (cleaned up),
Darnstaedt’s challenge to the sufficiency of the evidence was
not preserved.

¶24 Darnstaedt nevertheless asks us to review this
claim under the ineffective assistance of counsel exception to
our general preservation rule. See State v. Johnson, 

, 

 (recognizing ineffective assistance of counsel
as one of “the three distinct exceptions to preservation”). “To
prevail on an ineffective-assistance-of-counsel claim, a
defendant must show both that counsel’s performance
was objectively deficient, and a reasonable probability exists
that but for the deficient conduct defendant would have
obtained a more favorable outcome at trial.” State v. Reid, 

, 

 (cleaned up); see also Strickland
v. Washington, 

 (1984). Because a
defendant must establish both, “we often skip the question of
deficient performance when a defendant cannot show
prejudice.” State v. Roberts, 

, 

; see
also Strickland, 

 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed.”).



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                        State v. Darnstaedt


¶25 In this case, we do not consider the reasonableness of
counsel’s performance because Darnstaedt cannot establish
prejudice. To demonstrate prejudice, “[a] defendant must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 

. “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” 

 Darnstaedt cannot demonstrate a reasonable
probability that a more specific directed verdict motion would
have affected the outcome. Even if trial counsel had made the
specific sufficiency arguments raised on appeal, it is not
reasonably likely that the directed verdict motion would have
been granted because “some evidence exists from which a
reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” See State v. Doyle, 

, 

 (cleaned up).

¶26 As relevant here, Utah’s child exploitation statute
criminalizes knowing possession of child pornography. 5 See

-5b-201(1)(a)(i) (Lexis Nexis Supp. 2020). In
this case, Darnstaedt does not dispute that the twelve images on
which the charges were based constituted child pornography.
Instead, Darnstaedt argues that the State presented insufficient
evidence to prove (1) that he possessed the images of child
pornography and (2) that he did so knowingly. Although the
evidence and arguments pertaining to possession and
knowledge overlap, we attempt to address each element
separately.

A.    Possession

¶27 A person who does not have actual physical possession of
contraband at the time of arrest may still be convicted “if the


5. Although there are other variations of the crime, “[t]he State’s
theory at trial was that Darnstaedt knowingly possessed child
pornography.”




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                        State v. Darnstaedt


State can prove constructive possession.” State v. Workman, 

, 

. To prove constructive possession, “the
State must prove that there was 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. Gallegos, 

 (cleaned up), petition for cert. filed, Feb. 10, 2021 (No.
20210092). “Ownership or occupancy of the premises where
contraband is discovered” may be insufficient, by itself, to prove
constructive possession, but “[i]n cases where there is additional
evidence, including circumstantial evidence, that strengthens the
nexus between ownership or occupancy and the contraband, the
jury may consider those circumstances in drawing an inference
of possession.” State v. Ashcraft, 

, 

.

¶28 “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.” State v. Jordan, 

, 

,
cert. granted, 

 (Utah 2020). But here the evidence
showed that both adults living in the house had access to the
computer and “joint occupancy alone cannot sustain an
inference of constructive possession.” See 

 (cleaned up).
Instead, the “defendant’s joint occupancy of the premises where
the contraband is discovered must be combined with other
evidence sufficient to establish the defendant’s knowing and
intentional control over the contraband.” State v. Gilliard, 

, 

 (cleaned up).

¶29 Where the defendant has non-exclusive ownership and
control of the premises, the State must often rely on
circumstantial evidence to prove the defendant’s individual or
joint possession of the contraband. But in this case, the joint
occupant testified unequivocally that the child pornography
found on the computer did not belong to her. Darnstaedt’s wife,
the only other adult living in the house, testified that she rarely
used the computer and had never heard of the Ares peer-to-peer



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                       State v. Darnstaedt


file sharing software. She further testified that she had never
downloaded child pornography, through Ares or otherwise, and
had no interest in seeing such images. Darnstaedt’s wife’s
testimony, if the jury believed it, disproved the alternative
inference that the child pornography on the computer might
have exclusively belonged to her as the joint occupant of the
house.

¶30 But Darnstaedt argues the evidence was insufficient to
disprove the possibility that a third, unknown person had access
to the computer. He claims that “at least one person besides
Darnstaedt and [his wife] used the computer: the person who set
up the Camie account.” And, he argues, “there was evidence
that other people came into the house—including babysitters, a
housekeeper, family members[,] and guests—who could have
used the computer simply by walking into the accessible office
and accessing the computer through a non-password-protected
account.”

¶31 Although it is appropriate to argue alternative inferences
to the jury, such arguments would not merit a directed verdict.
“The law is well established that the existence of one or more
alternate reasonable hypotheses does not necessarily prevent the
jury from concluding that a defendant is guilty beyond a
reasonable doubt.” State v. Cardona-Gueton, 

, 

 (cleaned up). “It is the exclusive province of
the jury to weigh the competing theories of the case, in light of
the evidence presented and the reasonable inferences drawn
therefrom, and to conclude which one they believe.” 

 (cleaned
up). Thus, “the existence of conflicting evidence alone cannot
justify taking the case away from the jury.” State v. Torres, 

, 

.

¶32 The State presented ample evidence to support its theory
that it was Darnstaedt, and not some unknown person, who not
only possessed but actively acquired the child pornography. The
evidence showed that a computer in his house was connected to
the Ares peer-to-peer network and that a user offered to share



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                        State v. Darnstaedt


ninety-two files of suspected child pornography from that
computer in June 2013. When the search was conducted less than
one month later, investigators discovered fifty-five files
containing explicit images of prepubescent girls. In addition,
investigators found that files with names consistent with child
pornography recently had been opened and were listed in the
directory along with files labelled as belonging to Darnstaedt.

¶33 During this period, Darnstaedt had near exclusive control
of the computer. Darnstaedt’s wife testified that he was
unemployed and home alone much of the time after he lost his
job in May 2013. Darnstaedt spent long hours at the computer,
even taking meals at his desk away from the family. Sometime
before the search, his wife stopped using the computer or even
going into the office. She also testified that although they had
occasional visitors, she did not remember anyone ever using the
computer nor could she think of a time when a visitor would
have had the opportunity to do so for a prolonged period.
Although Darnstaedt’s wife was never directly asked whether
the computer was password-protected, she implied as much
when she denied ever giving “any of the passwords for the
computer to any friends or visitors.”

¶34 This evidence was more than sufficient to establish the
required nexus between Darnstaedt and the images on the
computer. The jury reasonably could reject the defense’s theory
that some unknown person had downloaded the images in favor
of the more plausible inference that Darnstaedt had acquired the
images himself during the long hours he spent alone at the
computer during the relevant period. Unlike an occasional
visitor to the house, Darnstaedt had the time and opportunity to
install the Ares software, share files in June, and download the
files found on his computer in July. Given that the State
presented sufficient circumstantial evidence tying Darnstaedt to
the child pornography, the theoretical possibility that someone
else might have downloaded the images would not have
justified taking the case from the jury. See State v. Ashcraft, 

, 

 (“The alleged connection to alternative



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                        State v. Darnstaedt


suspects was a fruitful source of cross-examination and
argument to the jury. . . . Yet the jury was by no means
compelled to accept the existence of reasonable doubt posited by
the defense’s finger-pointing, and in fact it did not accept the
argument.”).

¶35 Similarly, the existence of the Camie profile did not prove
that someone other than Darnstaedt was using the computer.
The wife testified that, on the rare occasions she used the
computer, she used the Froggy account and never used any
other username to log on to the computer. Darnstaedt and his
wife were the only two adults in the house and, based on his
wife’s testimony, the jury could reasonably conclude that no
visitor would have had reason or opportunity to set up a
separate user profile. 6 Tellingly, Darnstaedt originally set up the
Froggy profile for his wife, but regularly used that account
himself. In fact, the Froggy profile was the one connected to Ares
even though the wife testified she had never heard of the peer- to-peer network. The jury could reasonably conclude that
Darnstaedt created and used the Camie profile, just as he did the
Froggy profile, to avoid conducting illicit activities using his
own profile.

¶36 The State also presented ample evidence that the person
responsible for downloading the images had both the power and
the intent to exercise dominion and control over them. For
eleven of the twelve images, the State presented evidence that


6. Darnstaedt faults the State for not calling the sister-in-law
named Camie to testify, but the State was not required to
disprove every alternative inference so long as it presented
sufficient evidence tying Darnstaedt to possession of the images.
See Ashcraft, 

 (explaining that, in assessing the
sufficiency of the evidence to prove constructive possession, “it
[is] unnecessary to eliminate other reasonable inferences to be
drawn from the evidence” so long as “the inference adopted by
the jury was sustainable”).




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                        State v. Darnstaedt


someone did, in fact, exercise dominion and control over those
files. The forensic investigator who examined Darnstaedt’s
computer testified that the eight files in the recycle bin could get
there only by a computer user deleting them. The three files in
unallocated space also had to arrive there through a process of
deletion—either the user moved the files to the recycle bin and
later emptied it or used a shortcut key to bypass the recycle bin.
The jury could reasonably conclude that Darnstaedt was that
user and that the affirmative steps he took to delete those eleven
files proved he had dominion and control over them.

¶37 Despite this evidence, Darnstaedt argues there was
insufficient evidence that he possessed the three images in
unallocated space because such files “are not accessible to any
user without forensic software, and no forensic software was
found on the computer.” In support of this claim, Darnstaedt
relies on a case from the Virginia Court of Appeals in which the
Commonwealth conceded that there was insufficient evidence
that the defendant possessed images recovered from unallocated
space. Kobman v. Commonwealth, 

 (Va. Ct. App.
2015). In that case, the court noted that “[w]hile the evidence
may suggest appellant at one time possessed the photographs in
the unallocated space, there was no evidence that he had
dominion or control of them on or about” the date alleged in the
indictment. 

 In contrast, Darnstaedt has not argued that the
evidence in this case was insufficient to prove possession on the
date alleged in the indictment. Rather, he argues that “the State
did not put on evidence that Darnstaedt ever had dominion or
control over the files.” (Emphasis added.) This argument
overlooks the direct evidence that a user exercised dominion and
control over the files by deleting them and the circumstantial
evidence from which a jury could reasonably infer that
Darnstaedt was that user.

¶38 Darnstaedt also argues that there was insufficient
evidence to prove constructive possession of the one file found
in the temporary internet cache. The State presented evidence
that files in the internet cache are active files that the user can



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                         State v. Darnstaedt


access. But, because the temporary file was associated with the
Camie account, Darnstaedt argues there was no evidence that he
possessed the file, because “it would have been pure speculation
for the jury to infer that Darnstaedt had access to or control over
the Camie account.” To the contrary, for the reasons set forth
above, the State produced sufficient evidence to support a
reasonable inference that Darnstaedt created and controlled the
Camie account.

¶39 In sum, the State presented sufficient evidence at trial to
allow a reasonable jury to find that Darnstaedt possessed the
images associated with each of the twelve counts. Even if the
constructive possession arguments raised on appeal had been
presented to the district court, it is not reasonably likely that the
motion for a directed verdict would have been granted.
Therefore, Darnstaedt cannot prove that he was prejudiced by
his counsel’s failure to make a more specific directed verdict
motion challenging the element of possession.

B.     Knowledge

¶40 The State also presented sufficient evidence from which a
reasonable jury could find that Darnstaedt possessed the files
knowingly. A person acts knowingly “with respect to his
conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or the existing
circumstances.” 

(2) (LexisNexis 2017).
“Proof of a culpable mental state comes by way of circumstantial
evidence, and proof of intent or knowledge is an inference that
may be drawn by the factfinder both from direct and from
circumstantial evidence.” State v. Mitchell, 

, 

 (cleaned up).

¶41 Here, the circumstantial evidence of knowledge was
sufficient to submit the case to the jury. The jury reasonably
could have found that Darnstaedt possessed each of the twelve
images knowingly, as opposed to inadvertently, based on
evidence that he sought out, downloaded, and viewed images of



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                       State v. Darnstaedt


child pornography and took steps to delete those images from
his computer.

¶42 The evidence sufficiently dispelled any notion that
Darnstaedt was an innocent user who unwittingly stumbled
upon child pornography. Instead, the evidence showed that he
actively sought out and downloaded child pornography,
supporting the inference that he knew the illicit nature of the
files saved on his computer. Based on the evidence of
constructive possession outlined above, the jury reasonably
could infer that Darnstaedt was the user who installed the Ares
peer-to-peer file sharing network and that he did so for the
purpose of obtaining child pornography. Although Ares can be
used for other purposes, investigators testified that it is
frequently associated with child pornography. And the IP
address assigned to Darnstaedt’s computer had offered to share
ninety-two images of suspected child pornography on Ares,
confirming that the network was being used for that purpose.

¶43 The evidence further showed that Darnstaedt knew that
child pornography had been saved on his computer. At the time
of the search, investigators found fifty-five sexually explicit
images and videos of prepubescent children on Darnstaedt’s
computer. The directory showed that images with file names
consistent with child pornography had recently been opened,
along with files using Darnstaedt’s name, further supporting the
inference that he was knowingly viewing child pornography
saved on his computer. Indeed, when officers executed the
search warrant, Darnstaedt appeared surprised not at the
mention of child pornography but at the suggestion that it was
being distributed from his house. Based on this evidence, the
jury could reasonably conclude that Darnstaedt was well aware
that the files on his computer contained child pornography.

¶44 Darnstaedt points out that the twelve images he was
charged with possessing were saved in inconspicuous
locations—the recycle bin, unallocated space, and the temporary
internet cache—where an innocent user would not be aware of



20180922-CA                   17               

                         State v. Darnstaedt


their existence. This argument does not account for the evidence
that Darnstaedt was not an innocent user, but the person who
actually acquired the images. With respect to the temporary
internet file associated with the Camie account, Darnstaedt
argues that “[t]here was no evidence that [he] knew about the
Camie account, had control over the account or could view the
temporary internet files for the account.” 7 But, as we have


7. In Darnstaedt’s reply brief, he argues for the first time that the
State could not prove he acted knowingly with respect to the file
saved in the temporary internet cache because there was no
evidence that he knew of the computer’s automatic-caching
function. Utah courts have yet to address this issue, but the
question of “whether a defendant can be convicted of possessing
child pornography accessed from the internet and
contemporaneously stored to the internet cache” has been the
subject of considerable discussion in the federal courts. See, e.g.,
United States v. Romm, 

 (9th Cir. 2006)
(discussing federal circuit courts’ attempts to address whether
“knowing possession” applies to “images in the internet cache”).
Like Utah’s child exploitation statute, federal law does not
punish unwitting or inadvertent possession or receipt of child
pornography. See United States v. Woods, 

(11th Cir. 2012) (noting that the scienter requirement “eliminates
the possibility that an unwitting downloader of child
pornography” would be convicted). As a result, federal courts
“have reasoned that the mere presence of illicit materials in a
computer’s temporary internet cache, standing alone, is
insufficient to establish knowing receipt, given that the files
could have been saved there without the user’s knowledge.”
United States v. Myers, 

 (4th Cir. 2014)
(collecting cases). In assessing whether there is sufficient
evidence that the defendant knowingly received or possessed
the illicit material, federal courts have looked at factors such as
“the defendant’s knowledge of the cache function, a search
                                                      (continued…)


20180922-CA                     18                 

                         State v. Darnstaedt


already explained, the evidence supported a reasonable
inference that it was Darnstaedt himself who created the Camie
account and used it to seek out and acquire child pornography.
With respect to the eleven files in the recycle bin and the
unallocated space, the evidence established that a user actively
deleted those files, either by moving them to the recycle bin or
by emptying or bypassing the recycle bin. The evidence also
showed that someone had installed CCleaner, which is designed
to permanently erase both the unallocated space and the
temporary internet cache. The jury reasonably could infer that
Darnstaedt was the only person who would have taken such



(…continued)
pattern for child pornography, evidence of deleting illicit files
after the fact, or the use of cache cleaning software.” United States
v. Winkler, 

 (5th Cir. 2011) (collecting cases). But
the courts are split as to what evidence is sufficient to prove
knowledge. Compare United States v. Dobbs, 

, 1204-
05 (10th Cir. 2011) (holding that proof that the defendant
“knowingly and methodically sought out child pornography”
was insufficient to show knowing possession of cached files
where there was no evidence that the defendant “at least knew
of the automatic-caching process”), with United States v. Fall, 

 (4th Cir. 2020) (noting that “many of our sister
circuits have affirmed child pornography convictions based on
circumstantial evidence of the defendant’s history and
involvement with child pornography”). Although our
jurisprudence could benefit from case law on this issue, we
hesitate to weigh in on a matter of first impression in Utah
without the benefit of full briefing. Therefore, we adhere to the
general rule that “issues raised by an appellant in the reply brief
that were not presented in the opening brief are considered
waived and will not be considered by the appellate court.”
Brown v. Glover, 

, 

.




20180922-CA                     19                 

                       State v. Darnstaedt


actions, supporting an inference that he knew those files were
saved on the computer.

¶45 In short, “this is not the exceptional case in which the
government has persisted in bringing a criminal prosecution
against the unknowing victim of a computer’s inner workings.”
See United States v. Winkler, 

 (5th Cir. 2011).
Instead, the evidence showed that Darnstaedt was a
sophisticated user who purposefully sought out child
pornography using a peer-to-peer file sharing network, had a
pattern of downloading and deleting child pornography, had
recently opened files whose file names strongly suggest child
pornography, and had installed a data erasing program capable
of erasing the temporary internet cache. Because the State
presented sufficient circumstantial evidence to prove
knowledge, there is no reasonable likelihood that a more specific
directed verdict motion would have succeeded. Therefore,
Darnstaedt has not established that he received ineffective
assistance of counsel in connection with the directed verdict
motion.

       II. Other Ineffective Assistance of Counsel Claims

¶46 Next, Darnstaedt argues his counsel was ineffective
because he “(1) did not ensure that the jury was properly
instructed on the meaning of possession and the correct mens
rea and (2) did not object to the prosecutor’s misstatement
during rebuttal closing argument.” To assess whether a
defendant’s constitutional right to the effective assistance of
counsel has been violated, “we apply the two-part test
articulated in Strickland v. Washington.” State v. Florez, 

, 

. Darnstaedt “must show both that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense.” See State v. Beckering, 

, 

 (cleaned up). Counsel’s
performance was deficient if “it fell below an objective standard
of reasonableness.” 

 (cleaned up). In this section, we address
only the deficient performance element because “a failure to



20180922-CA                    20               

                          State v. Darnstaedt


prove either element defeats the claim.” State v. Hart, 

, 

 (cleaned up).

A.    Jury Instructions

¶47 Darnstaedt first argues that his trial counsel did not
ensure that the jury was properly instructed on the elements of
the offense. Specifically, he argues that “the jury was not
instructed on (1) the meaning of the criminal act, which was to
‘possess’ child pornography or (2) the proper mens rea for
distributing and viewing.”

¶48 The jury was instructed that it could convict Darnstaedt of
sexual exploitation of a minor only if it found that each of the
following elements had been proved beyond a reasonable doubt:

      1.      That the defendant;

      2.      In Wasatch County, State of Utah;

      3.      On or about July 11, 2013;

      4.      Did knowingly;

      5.      Produce, possess, possess with intent to
              distribute, or view;

      6.      Child pornography.

Although element five included each of the statutory variants,
the parties agree that the State proceeded under a possession
theory at trial. Consistent with that understanding, the court
instructed the jury that “the State must prove that the defendant
was in possession of a different item of child pornography for
each of the charges listed above, and that the other elements are
met as to each item of child pornography.” (Emphasis added.)
With that context in mind, we turn to Darnstaedt’s specific
challenges.



20180922-CA                      21               

                       State v. Darnstaedt


¶49 First, Darnstaedt argues that his “counsel performed
deficiently when he did not ensure that the jury was instructed
properly on constructive possession.” Darnstaedt does not argue
that the instructions affirmatively misstated the law, but instead
argues that they were insufficient because they did not
define the term “possession” or otherwise “inform the jury on
what the state must prove to demonstrate possession of
electronic files on a shared computer.” Darnstaedt suggests that
his attorney could have remedied this deficiency by
requesting the jury be instructed using the model Utah jury
instruction defining constructive possession in the context of
drug cases. See Model Utah Jury Instructions 2d CR1202B (2018),
http://www.utcourts.gov/resources/muji [https://perma.cc/F4EW
-3UHP].

¶50 Given the evidence at trial, Darnstaedt’s counsel acted
reasonably in not proposing such an instruction. In determining
whether counsel’s performance was constitutionally deficient,
“the ultimate question is not whether there was a possible
strategic reason for counsel’s conduct, but instead whether that
conduct was objectively reasonable.” State v. Scott, 

, 

. Nonetheless, “if the court concludes that the
challenged action might be considered sound trial strategy, it
follows that counsel did not perform deficiently.” 

 (cleaned
up).

¶51 Here, we can easily conceive of a sound strategic reason
for not requesting the model instruction on constructive
possession. This was not a joint occupancy case in which there
was no evidence as to which occupant might have possessed the
child pornography found on a shared computer. Darnstaedt’s
wife was the only other adult resident of the house and the only
person known to use the computer besides Darnstaedt. She
testified that the child pornography on the computer did not
belong to her. She also testified that she could not remember any
visitors using the computer or having access to the office for any
significant period. In contrast, Darnstaedt exercised nearly




20180922-CA                    22               

                        State v. Darnstaedt


exclusive control over the computer and spent long hours alone
in his office during the relevant time frame.

¶52 In light of this evidence, trial counsel could reasonably
have decided to leave “possession” undefined rather than
request a jury instruction that was largely favorable to the
prosecution. The model instruction on constructive possession
would have directed the jury to consider factors such as the
defendant’s ownership and occupancy of the place where the
contraband was found, whether the defendant’s ownership or
occupancy was exclusive, whether contraband was in a location
where the defendant had “special control,” and whether other
people also had access to it. See Model Utah Jury Instructions
2d CR1202B (2018) [https://perma.cc/F4EW-3UHP]. A reasonable
attorney could conclude it was not in Darnstaedt’s best interest
to include a constructive possession instruction highlighting
those factors, which weighed heavily in favor of finding that he
possessed the images. Such decisions are matters of trial
judgment and strategy and do not rise to the level of deficient
performance.

¶53 Second, Darnstaedt argues his counsel was ineffective
because he did not object to “a misstatement of the law in the
jury instruction” that “listed the mens rea for distributing and
viewing [child pornography] as knowingly” when “the mens rea
for distributing and viewing is intentionally.” The State concedes
that “the statute imposes an intentional mental state for
‘distributing and viewing child pornography,’” but argues that
trial counsel did not perform deficiently in overlooking this error
because the variants of distributing or viewing child
pornography were not at issue in this case. We agree.

¶54 The jury instructions correctly stated the knowing mental
state for possession, the only theory the State pursued at trial.
The instructional error was including the variants of
“distributing” and “viewing” without specifying that those
variants require an intentional mental state. But “not objecting to
an error does not automatically render counsel’s performance



20180922-CA                    23                

                        State v. Darnstaedt


deficient.” State v. Ray, 

, 

; see also
Scott, 

 (“Reasonably effective assistance does not
require counsel to correct every error that might occur during a
trial.”). “We must view a decision to not object in context and
determine whether correcting the error was sufficiently
important under the circumstances that failure to do so was
objectively unreasonable—i.e., a battle that competent counsel
would have fought.” Ray, 

.

¶55    Here, counsel’s failure to object to the error in the
elements instruction did not fall below an objective standard of
reasonableness. The focus at trial was on whether Darnstaedt
knowingly possessed the images. A reasonable attorney could
have overlooked the error because it related to variants that did
not appear to be at issue. Under the circumstances, correcting the
erroneous instruction was not “sufficiently important that
counsel’s inaction was objectively unreasonable.” See id. ¶ 44.
Therefore, Darnstaedt has not established that his counsel’s
performance was deficient.

B.    Closing Argument

¶56 Finally, Darnsteadt argues that his counsel was ineffective
because he failed to object to the prosecutor’s rebuttal argument
suggesting that access to the computer was protected by a
password. Because prosecutorial misconduct is not a
“standalone basis for independent judicial review[,] . . . absent
an objection at trial, we review the district court’s actions under
established exceptions to the law of preservation.” State v.
Hummel, 

, 

. In this case, Darnstaedt
asks us to review this issue through the lens of ineffective
assistance of counsel.

¶57 At trial, the State presented no direct evidence that the
computer was password-protected. The only evidence regarding
computer passwords consisted of the following testimony from
Darnstaedt’s wife:




20180922-CA                    24                

                       State v. Darnstaedt


      Q: Did you personally ever give any of the
      passwords for the computer to any friends or
      visitors?

      A: No.

¶58 During his rebuttal to closing argument, the prosecutor
assumed that the computer was password-protected and
suggested that the jury had heard testimony to that effect.
Specifically, the prosecutor argued as follows:

      [Someone] would have to have gotten passwords
      for the computer. We heard information about how
      the computer was password protected and . . .
      information that [the wife] never gave those
      passwords to anyone. She only knew the
      password—that we know that she knew the
      password for one account, but she can’t even
      remember which account it was that she knew it.

      So someone with access to the password for the
      Froggy account had to—so they had to have the
      password. . . .

      And that’s just not even—not even within the
      realm of reasonable to believe that a babysitter
      without a password did that, that somebody who
      was doing yard work should be someone that we
      can’t rule out, that someone who cleaned the house
      occasionally without a password would be able to
      do.

Defense counsel did not object to these statements.

¶59 Darnstaedt argues that the prosecutor misstated the
evidence and that competent trial counsel should have objected.
Given the lack of direct evidence that the computer was



20180922-CA                    25               

                        State v. Darnstaedt


password-protected, such an objection might have been welltaken. On the other hand, counsel for both sides “have
considerable latitude in the points they may raise,” Hummel,

 (cleaned up), including “the right to fully
discuss from their perspectives the evidence and all inferences
and deductions it supports,” State v. Houston, 

,

 (cleaned up). Trial counsel reasonably might have
concluded that the wife’s testimony that she had not provided
the passwords to anyone adequately supported the prosecutor’s
inference that a password protected the computer.

¶60 In any event, the prosecutor’s argument was not so
egregious that trial counsel’s only reasonable course of action
was to object. “When we review an attorney’s failure to object to
a prosecutor’s statements during closing argument, the question
is not whether the prosecutor’s comments were proper, but
whether they were so improper that counsel’s only defensible
choice was to interrupt those comments with an objection.” State
v. Bermejo, 

, 

 (cleaned up),
petition for cert. filed, Dec. 22, 2020 (No. 20200933). “And the law
recognizes the prerogative of opposing counsel to swallow their
tongue instead of making an objection that might have the risk
of highlighting problematic evidence or even just annoying the
jury.” Hummel, 

.

¶61 Darnstaedt’s counsel reasonably could have concluded
that there was nothing to be gained from objecting to the
prosecutor’s argument. During closing arguments, a district
court is rarely in a position to resolve disputes about whether a
particular argument is supported by evidence in the record.
Lacking a transcript of the testimony or briefing on whether a
particular fact reasonably can be inferred from the evidence
presented, district courts almost invariably respond to such
objections by instructing the jury that the arguments of counsel
are not evidence and that the jury’s recollection of the evidence
controls. Here, the court had already advised the jury, “If the
lawyers say anything about the evidence that conflicts with what
you remember, you are to rely on your memory of the



20180922-CA                     26                

                         State v. Darnstaedt


evidence.” Trial counsel reasonably could conclude that an
objection merely would have prompted the court to reiterate that
instruction, to no real effect. Under these circumstances, the
failure to object did not rise to the level of deficient performance.


                          CONCLUSION

¶62 Darnstaedt has not established that he received ineffective
assistance of counsel. He cannot establish prejudice in
connection with the motion for a directed verdict, because a
more specific motion would not have succeeded in light of the
evidence supporting each element of the offense as to all twelve
charges. With respect to his remaining claims, he cannot
establish deficient performance because it was not objectively
unreasonable for trial counsel to forgo objections to either the
jury instructions or the prosecutor’s closing argument.
Accordingly, we affirm Darnstaedt’s convictions.




20180922-CA                     27