State v. Case, 052920 UTCA, 20180361-CA

Docket Nº:20180361-CA
Opinion Judge:CHRISTIANSEN FORSTER, JUDGE.
Party Name:State of Utah, Appellee, v. Philip Boswell Case, Appellant.
Attorney:Stephen W. Howard and Bradley J. Henderson, Attorneys for Appellant Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
Judge Panel:Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.
Case Date:May 29, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 81

State of Utah, Appellee,

v.

Philip Boswell Case, Appellant.

No. 20180361-CA

Court of Appeals of Utah

May 29, 2020

Fourth District Court, Provo Department The Honorable Kraig Powell No. 151400499

Stephen W. Howard and Bradley J. Henderson, Attorneys for Appellant

Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.

OPINION

CHRISTIANSEN FORSTER, JUDGE.

¶1 Philip Boswell Case appeals his convictions on seven counts of sexual exploitation of a minor. We affirm.

BACKGROUND

¶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 "not into that. He's not into little girls. . . . [H]e's into feet. . . . [H]e's into pantyhose." 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) ("A person is guilty of sexual exploitation of a minor: (a) when the person: (i) knowingly produces, possesses, or possesses with intent to distribute child pornography; or (ii) intentionally distributes or views child pornography . . . .").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.

¶6 Prior to trial, Case requested that the State provide notice of any rule 404(b) evidence it would seek to admit at trial. See Utah R. Evid. 404(b). The State initially sought to admit between twenty-one and twenty-eight images of child pornography. The State also planned to introduce a minimum of twenty-eight legal images depicting child erotica; children wearing nylons, pantyhose, and other various clothing; adults involved in foot and pantyhose fetishes; and a cartoon image of a child being sexually assaulted (collectively, legal erotica) to show that Case "engaged in a general course of overlapping sexual conduct." Specifically, the State argued that Case's "sexual fetishes and sexual behavior with his wife are narrowly defined and have very strong nexus with the pantyhose, foot fetish, and sexual interest images found on [Case's] computer devices that directly go toward the elements of the charged offenses." Alternatively, the State offered the evidence of the legal erotica for the permissible purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident under rule 404(b). Case filed a motion in limine to exclude from the jury's view the twenty-eight images of legal erotica identified in the State's notice, arguing that they were irrelevant or offered for improper character purposes. The trial court heard oral argument and denied Case's motion in an oral ruling from the bench.4

¶7 On the first and second days of trial in February and March 2018, during a discussion of how the court should instruct the jury on how it should consider the images of legal erotica, Case renewed his objection to the admission of those images, asking, "If they are not child porn[ography], what specifically are they . . . what relevance does it have to be introduced?" The trial court responded that it had ruled that the images of legal erotica were admissible under rule 404(b) for a proper purpose: to show "motive, opportunity, lack of mistake, lack of accident . . . [and] all of those do meet the qualifications of the rule in [the court's] ruling." Case and the State stipulated that the jury would be instructed that the images of legal erotica were not introduced as proof of a crime; rather, the evidence was being offered for a proper purpose under rule 404(b). Ultimately, the trial court judge ruled, I stand by my ruling that the court has made a [rule 404(b)] determination after a long hearing or two. And the court has determined that the evidence . . . the prosecution intends to introduce in this case of other connections of defendant through circumstantial evidence for lack of a better term of these other [images of legal erotica] are admissible for purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake and lack of accident.

¶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...

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