State v. Case
Decision Date | 31 October 2020 |
Docket Number | 20200599,20180361 |
Citation | 467 P.3d 893 |
Parties | State v. Case |
Court | Utah Supreme Court |
¶1 Philip Boswell Case appeals his convictions on seven counts of sexual exploitation of a minor. We affirm.
¶2 In early 2012, Case sold an external computer hard drive to a Utah woman (Buyer) via an online classified advertisement. In November 2013, having used the drive only infrequently, Buyer's husband discovered "a lot" of child pornography featuring digital images of "young girls, some of them scantily clad, posed in provocative postures," stored in the drive's recycle bin. After examining the thumbnail images1 with Buyer, the couple reported the matter to law enforcement. Agents from the Utah Attorney General's Office visited the couple's home and confiscated the drive.
¶3 Buyer could not remember the name of the person who sold the drive, but an agent was able to identify Case from work-related and family photos on the hard drive. All the digital images on the drive had last been accessed in late 2011—two to three months before Case sold the drive.
¶4 After confirming that several of the images on the drive were child pornography, agents interviewed Case on the porch of his house in early June 2014. Case confirmed that he sold the hard drive to Buyer, but he denied knowing how any of the child pornography could have gotten there. After about fifteen or twenty minutes, Case's wife (Wife) joined them on the porch. When she learned that the agents were investigating child pornography, she said that Case was Agents explained that they found images of adult foot pornography on the drive, and Case admitted, "If you see feet photos, I'm into that." But he denied that he viewed pornographic images of underage individuals. Wife consented to a search of the family's computers, and Case provided the agents with his work laptop and its password. The search of the laptop revealed at least two images of child pornography that had been downloaded three days earlier. The agents also found a Tor browser on Case's laptop.2 The agents confiscated the laptop, and a forensic search conducted after obtaining a search warrant revealed additional images of child pornography, much of it featuring feet, shoes, and pantyhose. In addition to child pornography, many images of adult pornography, child erotica, and images of young girls in hosiery or shoes were found on both the laptop and the hard drive.
¶5 Case was charged with seven counts of sexual exploitation of a minor related to the possession of the images of child pornography located on the hard drive and found on his laptop computer. See Utah Code Ann. § 76-5b-201(a) (LexisNexis Supp. 2019) ().3 Specifically, two of the charged counts were related to illegal pornographic images found on the hard drive that were alleged to have been possessed or viewed by Case on or about December 1, 2011, and five of the charged counts were related to illegal pornographic images found on Case's laptop computer that were alleged to have been possessed or viewed by him on or about June 5, 2014. The amended Information did not link each count with the possession of a specific image; rather, the charging document merely identified counts one and two as related to Case's possession of child pornography in 2011 and counts three through seven as related to his possession in 2014.
¶8 At trial, Case's primary contention was that the State was unable to show who was "responsible for putting the alleged child pornography on both the hard drive and the laptop." He argued that the State could show only circumstantial evidence linking him to the possession of the illegal images and could not prove directly that he was "the one [who was] at the computer" when "the child pornography [was] being downloaded." Case further argued that there was an "apparent disconnect" between the images of child pornography on the hard drive and on his laptop and the other evidence that showed images of legal erotica.
¶9 Wife, who had divorced Case by this time, testified that Case had a "foot fetish" and that "he liked feet and pantyhose." She revealed that during their marriage, Case liked to rub his penis on her pantyhose-clad feet. Sometimes Case did this while Wife was sleeping, and she once caught him taking pictures of this activity. Wife also revealed that Case frequently looked at "foot websites and pantyhose websites" and was very secretive about his Internet-viewing activities. But Wife also testified that she had never observed Case viewing images of children.
¶10 In addition to testimony from investigating agents and Case's family, and as part of its case-in-chief, the State offered the evidence of the legal erotica and illegal pornographic images seized from Case's laptop and the hard drive to prove that Case was the one who possessed or viewed the child pornography. At the end of the third day of trial, before the State published the images and rested its case, so that the jury did not have to view each exhibit individually, Case offered to stipulate that the images identified by the State as child pornography met the statutory definition of child pornography:
We are willing to concede that point and stipulate to it, obviously, for purposes of judicial efficiency, obviously, also for purposes of saving the jury who has already indicated to us in chambers through voir dire, that they have an interest in not looking at the child pornography and would be satisfied with some state witness describing the child pornography, explaining the data behind it, and saving them from viewing something that they clearly, when you watched the jury look at this first image, did not want to see.
Case further argued that under rule 403 of the Utah Rules of Evidence, he would be prejudiced if the jury was able to view each image of child pornography:
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