State v. Case, 467 P.3d 893

Background

In 2012 Case sold an external hard drive; in Nov. 2013 the buyers discovered numerous images of child pornography in the drive’s recycle bin and reported it to law enforcement. Forensic review identified Case from other photos on the drive; the illicit images were last accessed in late 2011.
In June 2014 investigators obtained Case’s work laptop (with his password after Wife consented) and found additional child-pornography images (some newly downloaded), a Tor browser, and many images reflecting foot/pantyhose fetish content and other adult erotica.
The State charged Case with seven counts of sexual exploitation of a minor based on images from the hard drive (two counts, dated ~Dec. 2011) and laptop (five counts, June 2014). The charging document did not tie specific counts to particular images, although 37 images were identified as child pornography.
Pretrial, the State gave notice under Utah R. Evid. 404(b) that it would introduce ~28 images of legal erotica (adult fetish images, child erotica, young girls in hosiery, drawings) to show motive/knowledge/absence of mistake; Case moved to exclude them under Rules 404(b) and 403; the trial court denied the motion and also allowed testimony from Case’s ex‑wife about his foot/pantyhose fetish.
At trial the State introduced 50 images (37 the State labeled child pornography, 13 labeled legal images) and the jury convicted Case on all seven counts. Case appealed arguing (1) erroneous admission of legal erotica and marital sexual-activity evidence and ineffective assistance for failing to preserve that objection, and (2) the court failed to instruct the jury that it must be unanimous as to which specific act/image supported each count.
The Court of Appeals affirmed: it presumed the missing pretrial hearing transcript supported the trial court’s 404(b) ruling, rejected the ineffective-assistance claim to the extent the record was insufficient, and found any unanimity-instruction error harmless under plain‑error review.

Issues

Issue	Plaintiff's Argument	Defendant's (Case) Argument	Held
Admissibility of legal erotica & marital sexual-activity evidence under Utah R. Evid. 404(b)/403	Evidence was admissible for non-character purposes (motive, intent, knowledge, absence of mistake) and necessary to show nexus between Case’s fetishes and images	Evidence was improper character propensity evidence, inflammatory, and irrelevant; should be excluded under Rules 404(b) and 403	Affirmed. Court presumed the missing motion‑hearing transcript supported the trial court’s discretionary 404(b) ruling and declined to find abuse of discretion.
Ineffective assistance of counsel for failing to preserve/renew objections to that evidence	N/A (State defends conviction)	Trial counsel was ineffective for not preserving objections to the admission of the erotica and marital testimony	Rejected. Because the hearing transcript and record were not in the record, the appellate court presumed regularity and could not find ineffective assistance as a matter of law.
Jury unanimity regarding which specific images supported each count (plain-error review)	Instruction stating jurors must unanimously find guilt satisfied constitutional unanimity; State argued counsel invited instruction or framed verdict form	Trial court failed to instruct jurors they must unanimously agree on which discrete act/image supported each count; error was preserved only for plain-error review	Court found the unanimity instruction legally deficient but harmless: given the evidence (stipulation that images were child pornography and the particularly graphic subset admitted), there was no reasonable likelihood of a more favorable outcome for Case.

Key Cases Cited

State v. Pritchett, 69 P.3d 1278 (Utah 2003) (presumption that missing portions of record support trial court’s action)
State v. Chettero, 297 P.3d 582 (Utah 2013) (missing record presumed to support trial court rulings)
State v. Saunders, 992 P.2d 951 (Utah 1999) (jury unanimity requires unanimity as to specific crime and each element)
State v. Hummel, 393 P.3d 314 (Utah 2017) (unanimity requires jurors to agree as to each distinct crime charged)
State v. Rasabout, 356 P.3d 1258 (Utah 2015) (unit of prosecution for child pornography is each visual representation)
State v. Morrison, 31 P.3d 547 (Utah 2001) (possession of multiple photographs constitutes multiple violations)
State v. Alires, 455 P.3d 636 (Utah Ct. App. 2019) (State must elect an act or the court must instruct jury to unanimously agree on the act when multiple acts could support a charge)
State v. Bond, 361 P.3d 104 (Utah 2015) (harmful‑error standard: error is harmful if it undermines confidence in the verdict)