State v. Jordan
438 P.3d 862
Utah Ct. App.2018Background
- Michael Alan Jordan was convicted by a jury of 33 felonies arising from long‑term sexual abuse allegations by his two minor stepchildren ("Mark" and "Luke"), possession of child pornography found on his laptop, and tampering with a witness.
- Mark and Luke testified to prolonged sexual abuse, to Jordan taking sexual photos of them, and to Jordan showing pornography; Mark identified multiple photos on the laptop as images of himself; some photos lacked metadata and no photographer was identified.
- Police and a child‑welfare caseworker had previously investigated allegations involving Luke that were closed as unfounded; a police report attached on appeal asserts prior false allegations by Luke about sexual misconduct among family members.
- The State introduced several laptop images (Exhibits 21–36); Exhibit 21 (bathroom photo) was identified by Mother as taken by Jordan; Exhibit 22 (canal photo) lacked an identified producer; Exhibits 33–36 depicted nude young males without metadata identifying age or origin.
- Jordan moved under Utah R. App. P. 23B seeking remand to develop ineffective‑assistance facts: (a) counsel’s failure to pursue a Rule 412 motion to admit proof of Luke’s prior false allegations; and (b) counsel’s failure to show that Mark had access to Jordan’s laptop (which would affect constructive‑possession proof for child‑pornography counts).
Issues and Key Cases Cited
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Jordan) | Held |
|---|---|---|---|
| 23B remand re: impeachment under Utah R. Evid. 412 (Luke) | Rule 412 bars sexual‑conduct evidence but not prior false accusations; State opposed remand | Counsel failed to file a Rule 412 motion to use police/caseworker reports showing Luke made prior false allegations; this likely impaired cross‑examination of Luke | Granted remand as to counts depending on Luke’s testimony (Counts 1,2,5,6,29,33); affidavits non‑speculative and could show ineffective assistance |
| 23B remand re: Mark’s access to laptop (constructive possession) | Constructive possession proven by laptop found in Jordan’s possession | Evidence (affidavits) indicates Mark also accessed the laptop; joint access would require stronger nexus proof from State | Granted remand as to six child‑pornography counts tied to exhibits lacking other nexus (Counts 14,24–26,27,28) to develop record on access and counsel’s knowledge |
| Sufficiency / expert testimony re: age of models (Exhibits 33–36; Counts 25–28) | Jury may determine age by visual inspection; expert testimony not required in all cases | When age is ambiguous, expert testimony may be necessary to prove images depict minors | Mixed: three images (33,34,36) are plainly minors—no expert required; Exhibit 35 is ambiguous—insufficient evidence; conviction on Count 27 vacated and dismissed |
| Ineffective assistance for failing to object to prosecutor’s closing on Exhibit 22 (canal photo) | Prosecutor argued producer intent could show exploitation; defense didn’t object | Argued prosecutor improperly relied on possessor intent absent proof Jordan produced the image | Court: safe to argue producer intent only if evidence the defendant produced the image; remanded/new trial on Count 14 (Exhibit 22) because State presented no evidence Jordan produced it; counsel ineffective for not objecting |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑part ineffective assistance standard)
- Cuyler v. Sullivan, 446 U.S. 335 (right to effective assistance applies to retained counsel)
- State v. Alinas, 171 P.3d 1046 (Utah 2007) (jury can determine age from images when minors are obvious)
- State v. Morrison, 31 P.3d 547 (Utah 2001) (statute requires depiction be for purpose of sexual arousal; focus is on materials themselves and producer intent can matter)
- United States v. Katz, 178 F.3d 368 (5th Cir. 1999) (age‑by‑image threshold requires case‑by‑case gatekeeping; expert may be necessary in close cases)
- United States v. Riccardi, 258 F. Supp. 2d 1212 (D. Kan. 2003) (illustrative gatekeeping analysis: some images plainly minors, others require expert)
- United States v. Mills, 29 F.3d 545 (10th Cir. 1994) (constructive possession easier where exclusive access; joint access requires additional nexus evidence)