State v. Dew

               THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                           Appellee,
                               v.
                      JONATHAN ISAAC DEW,
                           Appellant.

                             Opinion
                        No. 20220463-CA
                     Filed February 21, 2025

         Second District Court, Farmington Department
              The Honorable Michael D. DiReda
                         No. 181702104

         Gregory W. Stevens, Emily Adams, and Hannah
            Leavitt-Howell, Attorneys for Appellant
              Derek E. Brown and David A. Simpson,
                      Attorneys for Appellee

    JUDGE JOHN D. LUTHY authored this Opinion, in which
 JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1     Jonathan Isaac Dew was convicted of thirteen counts of
sexual exploitation of a minor. He challenges his convictions by
arguing that (1) his due process rights were violated by the State’s
loss or destruction of evidence, (2) the evidence was insufficient
to support his convictions, (3) the district court plainly erred by
failing to sua sponte strike statements made by the prosecutor
during closing argument, and (4) his trial counsel (Counsel)
provided ineffective assistance by not objecting to those
statements. We disagree on all fronts and affirm Dew’s
convictions.
                           State v. Dew


                        BACKGROUND 1

                           Investigation

¶2     In October 2018, an agent (Agent) working for the Internet
Crimes Against Children task force (ICAC) was alerted that a
particular IP address had connected to an online peer-to-peer file-sharing network and that someone at the IP address had offered
to distribute files of child pornography. Agent downloaded the
offered files and confirmed that they contained videos of child
pornography. Agent then obtained and served on the internet
service provider a court order to identify the name and street
address of the subscriber associated with that IP address. The
provider’s response indicated that the subscriber was Dew’s wife
(Wife) and that the associated street address was that of Dew and
Wife’s home. Agent then obtained and—along with other ICAC
agents—executed a warrant to search the home. Wife was home
when the agents executed the warrant; Dew was not.

¶3     The IP address that had shared the child pornography
videos was assigned to an internet router in the home. Thus, while
the agents knew that the videos had come from a device that had
been logged onto the home’s network, they did not know which
device had been used to share the files.

¶4     While executing the warrant, the agents found multiple
electronic devices and conducted or attempted to conduct an on-site “forensic preview” of each device. This “triage” procedure
enabled the agents to determine which devices could be “rule[d]
out as not being involved” and which devices to seize for a full
“forensic examination” “at a laboratory that’s dedicated for that
purpose.”



1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Gallegos, 

, 

 (cleaned up).


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                            State v. Dew


¶5     Among the devices found in the home were a laptop
computer, a desktop computer, and a cellphone identified by Wife
as her devices or devices she regularly used. She provided the
agents with the passwords for those devices, thereby enabling the
agents to conduct forensic previews of the devices. Based on those
previews, the agents determined that no further investigation was
warranted of those devices.

¶6     The agents also found a number of devices that belonged
to Dew, including an external hard drive and multiple mobile
devices, that were encrypted with passwords. The encryption on
these devices prevented the agents from conducting forensic
previews of them, so the agents seized these devices for analysis
at the lab. Even at the lab, however, analysts were unable to
conduct a forensic analysis of these devices because they were
never able to “obtain any passwords to any [of] . . . Dew’s
devices.”

¶7      In a basement “poker room,” the agents found two laptop
computers—one black and one silver—that Wife identified as
either belonging to Dew or as having been used exclusively by
him. Agent conducted an on-site forensic preview of the silver
laptop’s hard drive. That preview generated “a registry report
contain[ing] a list of the files that [had] been recently opened [on]
that computer.” The list included “file names [that] were
indicative . . . of child pornography.” Accordingly, the agents
seized the silver laptop for further investigation. But when they
later tried to conduct a full forensic analysis of the silver laptop’s
hard drive, the analysts “could not get it . . . to spin” and were
therefore unable to conduct additional analysis.

¶8     The agents attempted to conduct an on-site forensic
preview of the black laptop as well, but they were prevented from
doing so because it was encrypted and Wife said “that she did not
have the password.” Thus, the agents seized the black laptop for
a full forensic analysis. At the lab, despite “some degree of



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                           State v. Dew


encryption” on the black laptop, an analyst (Analyst) was able to
view “a good portion” of its contents. The portion of its contents
that Analyst was able to view contained images of child
pornography, which Analyst described as “thumbcache files” (or
“thumbnail[s]”) and “carved images.” It also contained “link
files” and “shellbags” indicating that additional images of child
pornography had also been on the laptop. Most of the link files
and shellbags had been created and accessed during the middle
of the night.

¶9    Based on the foregoing investigation, the State charged
Dew with seventeen counts of sexual exploitation of a minor for
“knowingly possess[ing] . . . child sexual abuse material.” Utah
Code § 76-5b-201. Counts 1 through 4 were based on the videos
shared through the peer-to-peer network. Counts 5 through 17
were based on the child pornography on the black laptop.

                        Motion to Dismiss

¶10 Prior to trial, Dew filed a motion to dismiss, asserting that
“destruction of evidence by the prosecution” had violated his due
process rights under the Utah Constitution and the United States
Constitution. Dew claimed that the ICAC agents had destroyed
exculpatory evidence by returning Wife’s phone to her without
making a copy of its contents. That alleged evidence consisted of
“text messages from [Dew] to [Wife] in which he shared . . . the
password to” the black laptop. Dew argued that the messages
would have shown that Wife was lying when she told the agents
she did not have that password.

¶11 Dew also asserted that although the silver laptop had been
“opened and viewed” by the ICAC agents when they executed
the warrant, it had then been “broken and [was] no longer
accessible.” Dew maintained that “the destruction of the evidence
on the [silver laptop,] which had child porn file names but no
content[,] may have had some evidence tying it to [W]ife.”




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                           State v. Dew


¶12 The district court denied Dew’s motion. It reasoned, in
part, that the alleged text messages from Dew to Wife had not
been destroyed or lost. It explained that if Dew actually sent those
messages, then they would still be on his device and he “can’t
participate in [their] concealment” by refusing to disclose the
device’s password “and then claim that law enforcement is
responsible for losing” the messages. As to the silver laptop, the
court determined, among other things, that Dew’s assertion that
the device “may have had some evidence tying it to [W]ife” was
insufficient to demonstrate a “reasonable probability that the
contents of that laptop would be exculpatory.”

                               Trial

¶13 The case proceeded to trial, where Counsel, in his opening
statement, cast the matter as “truly a case of whodunit.” Agent,
Analyst, and Wife then testified to the above-recited facts about
the investigation. Wife further testified that she did not often use
the poker room but that Dew would spend about five hours a day
there “gam[ing],” “play[ing] on his computer,” and “watch[ing]
porn.” She explained that Dew worked four ten-hour days—from
“noon to 10:00 [p.m.]”—each week and that at night he slept in a
basement family room near the poker room. The master bedroom
was upstairs.

¶14 Wife stated that she had no sexual interest in children, was
unfamiliar with the peer-to-peer file sharing network through
which Agent had received the child pornography videos, and had
never downloaded child pornography.

¶15 Wife was asked about the silver laptop and the black
laptop. She explained that the silver laptop had been her sister’s
when her sister was in high school, that it was subsequently
“given to [Wife and Dew] by [Wife’s] stepdad,” that she had not
known where it was before the agents found it, and that she had
never used it. Regarding the black laptop, Wife testified that she
and Dew “got [it] under a payment plan” and “were still paying


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                             State v. Dew


on it” when the agents executed the warrant. She stated that she
had used the black laptop only once and that was “to connect to
the modem downstairs to fix the Wi-Fi.” When asked about her
purported statement to ICAC agents that she had “not ever
access[ed]” the black laptop, Wife said that her one-time use of the
black laptop was “just something that came to memory later”; that
she remembered the agents asking her “what [Dew’s] password
was”; and that “all [she] could remember was that it started with
delta,” which was “not his full password.”

¶16 Analyst testified about the files he found on the black
laptop. He stated that he recovered thirteen still images of child
pornography and that all but two of those images were stored as
“thumbcache files.” He explained that a thumbcache file is “a
pointer . . . for a file that existed on [a] device,” and that it is “a
smaller rendition of an image” that a computer’s “operating
system generates” to help load the original image faster. Analyst
said that one way for a thumbcache file to be created is for the user
to open the original image. Analyst also testified that a
thumbcache file is not created unless the original image existed
on the computer at some point. The thumbcache images here were
unaccompanied by various metadata, such as information about
when the images were created, last modified, or accessed. Analyst
testified that this lack of metadata could be the result of the
underlying files having been partially overwritten or the
metadata having been deleted.

¶17 Analyst testified that the last two images of child
pornography found on the black laptop were “carved images.” A
carved image is an image file that was “once deleted” but has been
forensically recovered.

¶18 Analyst       found      additional      evidence      of   child
pornography on the black laptop in the form of “link files” and
“shellbags.” He stated that a link file “is essentially a shortcut . . .
that points the operating system [of a computer] to a file that



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                             State v. Dew


was on . . . the computer at that time.” Analyst explained that a
link file may be created by the user of the device or by the device
itself, but that it can be created only for a file that was actually on
the computer. A list of link files extracted from the black laptop
included references to a particular and distinctive name that is
associated with a widely circulated collection of child
pornography.

¶19 Analyst testified that a shellbag is created when a user of a
Windows device opens a folder. The shellbag creates a record of
which folder was opened, correlates that record to a particular
user, and then uses that information to customize that user’s
experience. For example, if the user always moves a particular
folder to the side of the screen after opening it, the shellbag will
remember that movement and tell the operating system to open
the folder on the side of the screen in the future. Analyst explained
that the existence of a shellbag does not necessarily mean that a
particular folder is still on the computer, but it does mean that the
folder existed either on the computer or on an attached external
hard drive at some point and that a particular user directly
interacted with it.

¶20 Analyst was able to extract seventeen pages of shellbag
records from the black laptop. All of the shellbags were created
for a password-protected account with the username “Jon” (a
shortened version of Dew’s first name, Jonathan); there was no
corresponding username for Wife. The shellbag records included
multiple additional references to the well-known child
pornography series as well as references to numerous other
directory paths with suspicious names, such as “child modelsgirls,” “kidfetish,” and “for-childporn.” Many of the suspicious
link files and shellbags were created between the hours of 11:00
p.m. and 5:00 a.m.—times consistent with Dew’s swing-shift work
schedule.




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                            State v. Dew


                    Motion for a Directed Verdict

¶21 After the State rested, Dew moved for a directed verdict on
all of the charges. Regarding counts 1 through 4, he argued that
the evidence was insufficient to convict him because no evidence
of the child pornography videos shared from Wife’s IP address
had been found on the devices analyzed at the lab. As to the
remaining counts, he contended, “[Because] the State’s evidence
cannot identify when the evidence presented occurred, . . . the
State cannot prove beyond a reasonable doubt that these actions
took place within . . . the applicable statute of limitations.” 2 The
court denied the motion, noting that “[w]hile this may be a case
of circumstantial evidence,” there was sufficient evidence from
which “a reasonable jury could see [the case] . . . the way that the
State ha[d] advanced.”

                 Closing Arguments and Conviction

¶22 At the conclusion of trial, the parties presented closing
arguments. The prosecutor summarized the evidence against
Dew, highlighting that someone from the IP address associated
with Dew and Wife’s home used a peer-to-peer file sharing
network to distribute child pornography, that the silver laptop
and black laptop were found in the poker room that Dew
regularly used (and that Wife did not), that various images of
child pornography were found on the black laptop, that the
username on that laptop was “Jon,” and that Wife testified that
both laptops were used almost exclusively by Dew. The
prosecutor then stated:

               Now, at the end of the day, there’s a why to
       all of this. I don’t know about motive. Frankly, I
       don’t care about motive. . . . I care about why. Why

2. Dew’s arguments regarding counts 16 and 17 were less than
clear, but they at least included the statute of limitations argument
he made as to counts 5 through 15.


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                           State v. Dew


      you’re here. Why is this case important? Why can’t
      any of this simply get on the stand and tell you it’s
      the defendant . . . that passed these pictures around?

             The kids in these pictures can’t speak. They
      can’t call for help. The people out there to help them
      are [the ICAC agents]. Those are the people out
      there to speak for them. They speak for them by
      giving them these. Because those . . . kids can’t
      speak. Can’t call for help.

             Why this is important is because those aren’t
      just images. Those aren’t just videos. Those are kids.
      And they are being traded like baseball cards. That’s
      why.

            But you don’t convict somebody because of
      that why. I’m not asking you to convict [Dew]
      because of that. That’s why this is important. I’m
      asking you to convict [Dew] because [the ICAC
      agents and Wife] have spoken for those children,
      and they are telling you what they’re saying. This
      evidence, those images, where they were found, the
      computers they were on, that is them talking.

¶23 In response, Counsel began his closing argument by
saying, “I’m cognizant of the fact that a crime was committed.
And I don’t want to detract from that. No question, child
pornography is horrible. No question that we all believe that child
pornography is horrible. But don’t let that cloud your vision as to
determining who did it.” Later, he again acknowledged that child
pornography “is a horrible and brutal thing.” Counsel’s
remaining arguments focused on the State’s burden of proof and
on asserting that the evidence created reasonable doubt regarding
who knowingly possessed the child pornography on the black
laptop.




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                           State v. Dew


¶24 The jury acquitted Dew of counts 1 through 4 (the ones
based on the videos shared over the peer-to-peer network) but
found him guilty of counts 5 through 17 (the ones based on the
images found on the black laptop).

                    Motion to Arrest Judgment

¶25 Dew then filed a motion to arrest judgment, again asserting
that there was insufficient evidence to convict him. He argued
that “the State failed to prove that [he] was the user of the
computer in question beyond a reasonable doubt because the
evidence presented was simply an opinion of the officers based
on statements by [Wife] that the computer . . . was [Dew’s].” “The
problem with the evidence,” Dew continued, was that the ICAC
agents “told [Wife] they were investigating child pornography[]
and then had her identify which electronic devices were hers and
which were [Dew’s].” Dew then summarized the “questionable”
and “contradictory” testimony that had been offered at trial. The
district court denied the motion to arrest judgment and sentenced
Dew to prison.


            ISSUES AND STANDARDS OF REVIEW

¶26 Dew now appeals, raising four issues for our review. First,
he challenges the district court’s denial of his pretrial motion to
dismiss, which asserted that the State violated his due process
rights by destroying evidence. “Whether the State’s destruction of
potentially exculpatory evidence violates due process is a
question of law that we review for correctness, though we
incorporate a clearly erroneous standard for the necessary
subsidiary factual determinations.” State v. DeJesus, 

, 

 (cleaned up).

¶27 Next, Dew argues that the district court erred when it
denied his motions for a directed verdict and to arrest judgment,
each of which challenged the sufficiency of the evidence. “We



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                            State v. Dew


review a district court’s grant or denial of a motion for directed
verdict and to arrest judgment for correctness.” State v. Stricklan,

, 

. A defendant appealing the denial
of a motion for directed verdict or to arrest judgment “has a
substantial burden on appeal.” 

 (cleaned up). He or she “must
show that, when viewed in the light most favorable to the State,
no evidence existed from which a reasonable jury could find beyond
a reasonable doubt that the defendant committed the crime.” 

(cleaned up).

¶28 Finally, Dew contends that the district court plainly erred
by not sua sponte striking statements made by the prosecutor
during closing argument. He relatedly asserts that Counsel
provided ineffective assistance by failing to object to the same
statements. “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. Elkface, 

, 

 (cleaned up),
cert. denied, 

 (Utah 2023). Because a claim of plain error
also involves no lower court ruling, we decide the claim in the first
instance as a matter of law. See State v. Corry, 

, 

.


                            ANALYSIS

                           I. Due Process

¶29 Dew contends that the district court erred by denying his
motion to dismiss, which was based on the assertion that the State
violated his due process rights under the Utah Constitution by
failing “to preserve a copy of Wife’s phone” and by causing “the




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                            State v. Dew


silver laptop [to stop] working while in the State’s possession.” 3
We see no error in the district court’s decision.

¶30 In State v. Tiedemann, 

, 

, our
supreme court held that to establish a violation of due process
rights under the Utah Constitution based on the State’s loss or
destruction of evidence, a defendant must first demonstrate “a
reasonable probability that lost or destroyed evidence would be
exculpatory.” Id. ¶ 44 (cleaned up). If the defendant makes that
threshold showing, the court must then weigh two factors:

       (1) the reason for the destruction or loss of the
       evidence, including the degree of negligence or
       culpability on the part of the State; and (2) the
       degree of prejudice to the defendant in light of the
       materiality and importance of the missing evidence
       in the context of the case as a whole, including the
       strength of the remaining evidence.

Id. “In reviewing the district court’s decision on this matter, . . .
we accept its factual determinations unless [they are] clearly
erroneous.” State v. DeJesus, 

, 

. “But
the district court’s determination of what constitutes a reasonable
probability for purposes of [this] analysis is a legal question
reviewed for correctness.” 

A.     Wife’s Phone

¶31 Dew contends that the State violated his due process rights
under Tiedemann by failing “to preserve a copy of Wife’s phone.”
He asserts that if such a copy had been made and preserved, it
“would show a text where [Dew] shared his passwords with
Wife” and this text would have “directly contradicted Wife’s

3. While Dew argued in the district court for dismissal under both
the Utah Constitution and the United States Constitution, he bases
his argument on appeal solely on the Utah Constitution.


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                            State v. Dew


police statements that she did not know the passwords to [Dew’s]
devices.” But Dew has not demonstrated that Tiedemann is
applicable in this scenario. On this point, State v. Powell, 

, 

, is instructive.

¶32 In Powell, the defendant was convicted of lewdness after he
went into two separate stores “in his wheelchair with his genitals
exposed.” Id. ¶ 2. Approximately nine months after receiving a
report of these incidents, a detective “sought surveillance videos
from both stores.” Id. ¶ 4. “While the second store still had
surveillance footage from the night in question, the first store did
not; by that time, it had already recorded over it.” Id. The detective
“viewed the video footage from the second store and was able to
identify [the defendant] and to partially track his movements
through the store, but [he] never found any footage of [the
defendant] exposing himself.” Id. (cleaned up). On appeal to this
court, the defendant claimed that his counsel had rendered
ineffective assistance by not moving to dismiss under Tiedemann
“due to the lost or destroyed video surveillance from both stores.”
Id. ¶ 50.

¶33 In response, we noted that “[a]s to the second store, [the
defendant had] direct[ed] us to no place in the record suggesting
the video surveillance [had been] lost or destroyed.” Id. ¶ 53. We
further observed, as to both stores, that under Tiedemann,
“criminal defendants are entitled to information possessed by the
State to aid in their defense” and that the defendant had “not
shown that the Tiedemann test applies in situations where a
private party, not the State, controls the maintenance and
preservation of the potential evidence.” Id. ¶¶ 51, 54 (cleaned up).
Finally, we noted that “to the extent [the defendant was] fault[ing]
the police for not taking immediate efforts to collect the video
surveillance, he [had] not directed us to any authority suggesting
that Tiedemann and its progeny may be read to impose on police
an obligation to ‘immediately’ make an ‘initial quick’
investigation upon receiving any report of crime, with the aim of



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                            State v. Dew


preserving any potential evidence before any legal theories have
been identified.” Id. ¶ 55. For these reasons, we concluded that the
defendant had “not demonstrated that his trial counsel performed
deficiently by not moving for dismissal due to the unavailable
video surveillance.” Id. ¶ 57.

¶34 Dew’s Tiedemann argument suffers from deficiencies
similar to those that were present in Powell. First, Dew has
directed us to no place in the record suggesting that Wife’s phone
or the text messages on it were lost or destroyed, and he could
have subpoenaed the phone if he had wished to demonstrate that
they were, see Utah R. Crim. P. 14(a)(2) (“A subpoena may
command the person to whom it is directed to . . . allow inspection
of records, papers or other objects . . . .”). Dew also has not
shown—or made any effort to show—that the Tiedemann test
applies in situations where a private party, like Wife, controls the
maintenance and preservation of the potential evidence at issue.
Nor has Dew directed us to any authority suggesting that
Tiedemann and its progeny may be read to impose on law
enforcement agents an obligation to retain every item they may
be authorized by warrant to seize even if such items have no
apparent inculpatory or exculpatory value at the time the warrant
is executed. For these reasons, we affirm the district court’s denial
of Dew’s motion to dismiss to the extent that the motion was
based on the asserted loss or destruction of Wife’s phone or the
messages on it. 4



4. Like the district court, we recognize that Dew’s phone is in State
custody and that if Dew sent the black laptop’s password to Wife
by text message, then that message should be on Dew’s phone and
could be made available if Dew disclosed the password to the
phone. However, Dew argues that resolving the Tiedemann issue
on that basis would violate his Fifth Amendment right against
compelled self-incrimination. Because “judicial restraint counsels
                                                      (continued…)


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                             State v. Dew


B.     The Silver Laptop

¶35 The other basis for Dew’s motion to dismiss was that the
silver laptop was effectively lost or destroyed when its hard drive
ceased to function. As to this basis for dismissal, the district court
concluded that Dew had not demonstrated a reasonable
probability that the silver laptop contained exculpatory evidence.
We agree.

¶36 The Tiedemann analysis includes “a threshold reasonable
probability requirement.” State v. DeJesus, 

, 

. “In order to satisfy the reasonable probability standard
in the lost evidence context, a defendant must make some proffer
as to the lost evidence and its claimed benefit. So long as that
proffer is not pure speculation or wholly incredible, the standard
will be satisfied.” Id. ¶ 39 (cleaned up); see also State v. Steele, 

, 

 (“Although the threshold
reasonable probability standard presents a low bar, a defendant
must provide more than speculation . . . .” (cleaned up)).

¶37 Dew argues that he met this “minimum showing” by
indicating to the district court that (1) “the dates of the files on the
silver laptop occurred prior to his possession of the laptop” and
(2) “Wife’s laptop showed downloads of . . . the [peer-to-peer
filing sharing network] used to exchange child pornography.” But
neither of these facts show that there is a reasonable probability
that the silver laptop contained exculpatory evidence as to Dew.

¶38 As an initial matter, we note that the record contains no
findings by the district court regarding these facts. Thus, for our
analysis here, we rely on the undisputed proffers at the hearing

against reaching constitutional questions if we can resolve the
case on non-constitutional grounds,” State v. Goins, 

, 

, we do not address whether the Tiedemann
issue in this case can be resolved based on Dew’s phone being in
State custody without running afoul of the Fifth Amendment.


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                            State v. Dew


on the motion to dismiss, the undisputed evidence admitted at
trial, and the fact that certain evidence was never proffered or
admitted.

¶39 Dew’s first assertion for why the silver laptop may have
contained exculpatory evidence is that because “the dates of the
files on the silver laptop occurred prior to his possession of the
laptop,” the silver laptop “could have shown that . . . someone
else engaged in the downloads.” However, the evidence Dew
relies on for this assertion—the “registry report contain[ing] a list
of the files that [had] been recently opened [on] that computer”—
also undisputedly indicates that the silver laptop’s calendar was
multiple years off and that, when correlated to account for the
laptop’s skewed calendar, the file creation dates are actually
within the time when Dew possessed the laptop. Thus, Dew’s first
assertion does not demonstrate a reasonable probability that the
silver laptop contained exculpatory evidence.

¶40 Dew’s second assertion for why the silver laptop may have
contained exculpatory evidence is that because “Wife had
downloaded [the peer-to-peer filing sharing network] onto her
own personal laptop,” the silver laptop “could have shown that
Wife . . . engaged in the downloads” on that laptop as well. But
based on the undisputed proffers at the hearing on the motion to
dismiss (which were later matched by undisputed evidence at
trial), we conclude that this amounts to the type of “pure
speculation” that does not satisfy Tiedemann’s reasonable
probability requirement. DeJesus, 

.

¶41 The undisputed proffers (and later evidence) indicated that
Wife had never used the silver laptop and did not know where it
was until it was found by the ICAC agents. There was also
undisputed evidence that Wife had no child pornography on her
personal devices. If Dew had proffered evidence that Wife had
used the silver laptop or that she did have child pornography (not
merely the file-sharing network) on one of her devices, that



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                            State v. Dew


evidence likely would have satisfied Tiedemann’s reasonable
probability requirement. One way Dew could have made such a
proffer is by testifying on his own behalf to Wife’s prior use of the
silver laptop—a move that “would not have waived his Fifth
Amendment right against self-incrimination.” State v. Mohamud,

, 

. By failing to make such a proffer,
Dew has failed to demonstrate that there is a reasonable
probability the silver laptop contained evidence that Wife had
been using it. See 

 ¶¶ 22‒24 (concluding that the defendant had
failed to meet Tiedemann’s reasonable probability requirement
because, after officers testified as to what a security video would
have shown occurred during a prison altercation, the defendant
“provide[d] no description, testimony, or other evidence
establishing what the video would have shown and how that
would have impeached the officers’ testimony”). Because Dew
proffered no evidence that Wife had used the silver laptop or that
any of her devices contained child pornography, he has failed to
demonstrate a reasonable probability that the silver laptop
contained exculpatory evidence.

¶42 For the foregoing reasons, we affirm the district court’s
denial of Dew’s motion to dismiss.

                  II. Sufficiency of the Evidence

¶43 We next address Dew’s claim that the district court erred
by denying his motions for a directed verdict and to arrest
judgment, which were both based on asserted insufficiency of the
evidence. We conclude that the court did not err by denying these
motions.

¶44 “When we consider an insufficiency of the evidence claim,
we review the evidence and all inferences which may reasonably
be drawn from it in the light most favorable to the verdict of the
jury.” State v. Nielsen, 

, 

 (cleaned up).
“We may reverse a verdict only when the evidence, so viewed, is
sufficiently inconclusive or inherently improbable that reasonable


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                           State v. Dew


minds must have entertained a reasonable doubt that the
defendant committed the crime of which he or she was
convicted.” 

 (cleaned up). This is true even when the evidence
is “largely circumstantial.” Id. ¶ 45. Indeed, “[s]ustainable
verdicts are entered every day on the sole basis of circumstantial
evidence.” Id. ¶ 47. “Direct evidence is not required.” Id. Thus,
“where the jury returns a verdict that is reasonably sustained by
circumstantial evidence and the inferences drawn from it, we
must uphold the jury’s verdict.” Id. We apply this standard even
if “we can conceive of alternative (innocent) inferences to draw
from individual pieces of evidence.” State v. Stricklan, 

, 

 (cleaned up). The question “is simply
whether the jury’s verdict is reasonable in light of all of the
evidence taken cumulatively, under a standard of review that
yields deference to all reasonable inferences supporting the jury’s
verdict.” 

 (cleaned up).

¶45 Dew was convicted of thirteen counts of sexual
exploitation of a minor for knowingly possessing thirteen images
of child sexual abuse material. See generally Utah Code § 76-5b-201
(defining sexual exploitation of a minor). He does not contest that
the evidence was sufficient to prove that thirteen images
constituting child sexual abuse material had been on the black
laptop, as evidenced by the discovery of the thumbcache files and
carved images. What he does contest is the sufficiency of the
evidence to prove that he was the one who possessed the black
laptop and that he knowingly possessed the child sexual abuse
material that had been on it. We conclude that the evidence was
sufficient to support both findings.

¶46 Undisputed evidence showed that ICAC agents traced an
IP address that shared child pornography to the home occupied
by Dew and Wife and that the agents then discovered child
pornography on the black laptop inside that home. Wife testified
that she and Dew had purchased that laptop and were still on a
payment plan when it was seized, suggesting they were its



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                           State v. Dew


original owners. She also testified that Dew was the nearly
exclusive user of the black laptop. Wife further testified that she
spent little time in the poker room, had no sexual interest in
children, and had never downloaded child pornography. And a
search of her devices found no child pornography.

¶47 Moreover, Analyst explained that thumbcache and carved
images are not created unless the original underlying images
existed on the computer at some point. Analyst testified that the
scores of shellbags on the black laptop that contained names
indicative of child pornography were created by the laptop’s
operating system when folders with those names were actually
opened by a user of the computer. Similarly, Analyst testified that
the link files on the black laptop that indicated the prior presence
of child pornography, including a well-known child pornography
series, were created when the laptop’s user or operating system
opened the underlying files when those files were actually on the
laptop. Further, all of the suspicious link files and shellbags were
linked to the username “Jon”—a shortened version of Dew’s first
name—and many of them were created between the hours of
11:00 p.m. and 5:00 a.m.—times consistent with Dew’s swing-shift
work schedule, while the black laptop contained no username
corresponding to Wife’s name. Finally, Analyst testified that the
black laptop contained “some level of encryption,” which,
together with the fact that the original child pornography images
appeared to have been deleted or removed, created an inference
of a consciousness of guilt in the laptop’s user.

¶48 The foregoing evidence supports a reasonable inference
that (1) the user of the black laptop knowingly possessed the
original images of child pornography whose prior presence on the
laptop was evidenced by the recovered thumbcache and carved
images and (2) the laptop’s user was Dew, not Wife.

¶49 Dew counters by accurately observing that a defendant’s
constructive possession of contraband “cannot be established



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                           State v. Dew


solely by nonexclusive ownership or occupancy of the place
where the contraband is found.” State v. Gilliard, 

, 

 (cleaned up). Indeed, “a 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.” 

 (cleaned up). But as the preceding paragraphs
demonstrate, there was ample evidence besides Dew’s
nonexclusive occupancy of the home to support—by reasonable
inference—a finding that Dew intentionally possessed the child
sexual abuse material that had been on the black laptop as
evidenced by the thumbcache files and carved images that
remained.

¶50 Dew also contends that there is insufficient evidence to
support the verdict because there is “no evidence that [he] ever
knew that the [thumbcache] images,” i.e., the ones “created by the
computer operating system” (as opposed to the original images
underlying the thumbcache images) “ever existed or that he had
ever exercised dominion and control over [the thumbcache
images] or that he knew how to do so.” But Dew did not make
this argument below in either his motion for a directed verdict or
in his motion to arrest judgment. Thus, this theory of insufficiency
of the evidence was not preserved for our review. See Patterson v.
Patterson, 

, 

 (“An issue is preserved
for appeal when it has been presented to the district court in such
a way that the court has an opportunity to rule on it.” (cleaned
up)).

¶51 Dew further asserts that the evidence was insufficient
because Wife’s “testimony that it was [Dew] who primarily used
the [silver and black] laptops” was “inherently contradictory and
therefore improbable.” In other words, Dew makes an “inherent
improbability” argument under State v. Robbins, 

, 

, and its progeny. But again, he did not preserve this
argument for our review. See generally State v. Doyle, 

-CA                    20                

                            State v. 

 (holding that a Robbins-based
insufficiency of the evidence argument presents a distinct “legal
theory” from a general insufficiency of the evidence argument
and must be separately preserved). In the district court, he did not
cite Robbins or any of its progeny, he did not use the phrase
“inherent improbability,” and he did not attempt to demonstrate
that Wife’s testimony was physically impossible or apparently
false. See State v. Cady, 

, 

(explaining that to make a Robbins argument, the defendant must
“specify whether or how the [challenged] testimony was
physically impossible or apparently false” and not simply
“point[] to evidence that might have undermined the credibility
of [the witness’s] testimony”). Thus, Dew’s Robbins argument is
waived. See Patterson, 

.

¶52 Finally, Dew argues (as he did below) that the evidence
was insufficient because “[t]here was no evidence that the [child
pornography] images were accessed by someone on or about the
date alleged in the [i]nformation.” It is true that in some cases the
State must prove exactly when a crime occurred, such as “when
time is an express statutory element” or when the defendant
asserts certain defenses, including that “a statute of limitations”
has run or that “the age of the victim or the defendant” precludes
the illegality of the act. State v. Fulton, 

 (Utah
1987). But no such circumstance is present here. Therefore,
whether Dew knowingly possessed the images during the precise
period alleged in the information is irrelevant.

¶53 For the foregoing reasons, we conclude that the district
court did not err by denying Dew’s motions challenging the
sufficiency of the evidence.

                  III. Closing Argument Claims

¶54 Finally, Dew contends that “the district court committed
plain error when it failed to intervene in the State’s improper
closing argument that appealed to the passions and prejudices of


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                           State v. Dew


the jurors [by urging them] to give a voice to and protect child
victims.” Relatedly, Dew contends that Counsel rendered
ineffective assistance by not objecting to the same argument. We
agree that the prosecutor’s argument included inappropriate
elements, but we do not agree that the court’s failure to intervene
was plain error or that Counsel’s failure to object constituted
ineffective assistance.

A.     Plain Error

¶55 “To establish plain error, a defendant must show that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error was harmful.” State v. Corry, 

, 

 (cleaned up). The focus of a plain error
analysis, however, is “not whether the prosecutor made missteps
but whether the trial judge committed reversible error.” State v.
Hummel, 

, 

 (emphasis added).

¶56 Although our focus is ultimately on whether the district
court plainly erred, we begin by acknowledging that the
prosecutor’s argument in this case was improper. In State v. Todd,

, 

, a murder case, the prosecutor
“made several impassioned references” to what the victim “might
have told the jury had she been alive to testify.” Id. ¶ 21 (cleaned
up). We explained there that “such a strategy during closing
argument is a highly risky and improper rhetorical device that
should be scrupulously avoided” because such statements invite
the jury to “feel obligated to seek revenge for the victim” instead
of basing its verdict on “a disinterested, impartial and fair
assessment of the testimony that has been presented.” Id. (cleaned
up). Similarly, in State v. Wright, 

, 

,
we held that a prosecutor’s statement that the jury had “the power
to make [the charged sexual abuse] stop” was improper because
it suggested that the jury had “a duty to protect the alleged
victim” and, thus, distracted “from [its] legal duty to impartially
apply the law to the facts.” Id. ¶ 41 (cleaned up).



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                           State v. Dew


¶57 The prosecutor’s strategy here was in the same vein. He
told the jury that “why [it was] here” and why the case was
“important” was because the images Dew was charged with
possessing were not “just images”—they were “kids [who] can’t
speak,” kids who “[c]an’t call for help,” and kids who were “being
traded like baseball cards.” These statements improperly called
on jurors to issue a verdict based on a desire to protect and
vindicate the voiceless and victimized children instead of one
based on a fair and impartial review of the evidence as to whether
Dew actually committed these crimes.

¶58 In support of the assertion that the prosecutor’s argument
was not improper, the State notes that “prosecutors have
considerable freedom to discuss the evidence ‘and the inferences
and deductions arising therefrom.’” (Quoting State v. Bryant, 

 (Utah Ct. App. 1998).) This is true. However, this
well-established principle applies to properly admitted evidence
and reasonable inferences that may be drawn from it. It does not
apply to matters that a jury is plainly not to consider, such as
protecting a victim, seeking retribution, or otherwise resting its
verdict on an impermissible basis. Prosecutors have no latitude to
discuss these topics.

¶59 The State also contends that the prosecutor’s argument was
not improper because he “expressly told the jury he was ‘not
asking’” it to convict Dew based on the children’s inability to
speak for or protect themselves and, instead, “was asking [it] to
convict Dew based on the ‘evidence.’” Stated another way, the
State suggests that prosecutorial misconduct may be ameliorated
by the prosecutor telling the jury that he or she is not engaging in
the misconduct. Not so. The prosecutor’s argument remained
inappropriate even after he told the jury he was not asking it to
render a verdict on an improper basis.

¶60 Although the prosecutor’s statements were improper, they
do not require reversal. As noted, the question we ultimately must



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                           State v. Dew


answer is whether the district court plainly erred by not sua
sponte intervening during the prosecutor’s argument. And on this
point, our supreme court has explained,

      Such a course is often a perilous one for a trial judge.
      A judge who interrupts a closing argument to
      question the basis for a lawyer’s statement risks
      treading on the toes of opposing counsel—of
      highlighting a point that counsel may prefer to
      ignore, in the hopes that it may go unnoticed or at
      least minimized by the jury. So a judge who does so
      must be certain that the attorney’s statement is both
      highly prejudicial and obviously beyond the
      bounds of the considerable latitude of counsel at
      closing to discuss fully from their viewpoints the
      evidence and the inferences and deductions arising
      therefrom.

State v. Hummel, 

, ¶ 119 n.35, 

 (cleaned up).

¶61 While improper, the prosecutor’s statements here were not
highly prejudicial such that the court was required to intervene.
Before making the objectionable statements, the prosecutor’s
argument focused on the testimony by Agent, Wife, Analyst, and
other law enforcement officers; on why the prosecutor believed
the testimony was credible; and on the reasonable inferences that
could be drawn from it. And after making the statements at issue,
the prosecutor again directed the jury to focus on the evidence.
While this did not change the impermissibility of the statements,
the prosecutor’s otherwise methodical focus on the evidence,
coupled with the strength of that evidence, did affect the degree
to which his inappropriate statements were prejudicial. And we
are not convinced that the district court should have viewed them
as highly prejudicial.

¶62 Counsel’s response to the improper statements further
highlights why the district court reasonably would hesitate to


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                             State v. Dew


interject itself. After the prosecutor’s argument, Counsel began his
argument by acknowledging that “a crime was committed” and
that “child pornography is horrible.” He then cautioned the jury
to not “let that cloud [its] vision as to determining who did it.” He
then acknowledged again that child pornography “is a horrible
and brutal thing.” The court might very well have anticipated the
possibility that Counsel would want to capitalize on the
prosecutor’s improper statements by essentially agreeing with
them, thereby gaining credibility with the jury before shifting
focus to the theme he had introduced in his opening statement—
that “this is truly a case of whodunit.” In short, “[w]e are in no
position to question the trial judge’s decision here to sit silent in
the absence of an objection.” 

B.     Ineffective Assistance

¶63 For similar reasons, we conclude that Counsel did not
provide ineffective assistance by not objecting to the prosecutor’s
argument. “To prevail on a claim of ineffective assistance of
counsel, a criminal defendant must show that (1) counsel’s
performance was deficient and (2) the deficient performance
prejudiced the defense.” State v. Miller, 

, 

 (cleaned up), cert. denied, 

 (Utah 2023). “A
defendant’s inability to establish either element defeats a claim for
ineffective assistance of counsel.” 

 (cleaned up). Here, we
resolve Dew’s claim under the deficient performance element.

¶64 To establish deficient performance, “a defendant must
show that counsel’s representation fell below an objective
standard of reasonableness.” State v. Lee, 

, 

 (cleaned up). “In evaluating whether counsel was
deficient, we will not second-guess trial counsel’s legitimate
strategic choices. Rather, if there is a conceivable tactical basis for
counsel’s actions, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy.” Id. ¶ 17 (cleaned up).



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                           State v. Dew


¶65 As we have intimated, see supra ¶ 62, Counsel made a
legitimate strategic choice by not objecting to the prosecutor’s
improper argument. By not objecting, Counsel avoided
potentially losing credibility with the jury by appearing—through
an objection—to disagree with the compelling (though irrelevant)
notion that child pornography victims need a voice and
vindication. Instead, by conceding the force of the prosecutor’s
statements and acknowledging the reprehensibility of the
charged conduct, Counsel placed himself on similar moral footing
to the prosecutor before arguing that the evidence did not prove
beyond a reasonable doubt that Dew was the one who engaged in
it. Dew has not overcome the presumption that Counsel’s decision
had a sound strategic basis, and his ineffective assistance claim
therefore fails.


                         CONCLUSION

¶66 We see no error in the district court’s denial of Dew’s
pretrial motion to dismiss based on an asserted violation of due
process. We also see no error in the court’s denial of Dew’s motion
for a directed verdict and motion to arrest judgment based on
arguments of insufficient evidence. We conclude that the court
did not plainly err when it did not intervene in response to the
prosecutor’s objectionable statements during closing argument,
and we likewise conclude that Counsel was not ineffective for not
objecting to those statements. Accordingly, we affirm.




 20220463-CA                    26