State v. Mitchell, No. 20110723–CA.

CourtUtah Court of Appeals
Writing for the CourtVOROS
Citation749 Utah Adv. Rep. 28,318 P.3d 238
Decision Date12 December 2013
Docket NumberNo. 20110723–CA.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Donald MITCHELL, Defendant and Appellant.

318 P.3d 238
749 Utah Adv. Rep. 28

STATE of Utah, Plaintiff and Appellee,
v.
Donald MITCHELL, Defendant and Appellant.

No. 20110723–CA.

Court of Appeals of Utah.

Dec. 12, 2013.


[318 P.3d 240]


Grant W.P. Morrison, Salt Lake City, Court J. Klekas II, and Laura J. Fuller, for Appellant.

Brian L. Tarbet and Marian Decker, Salt Lake City, for Appellee.


Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

Opinion

VOROS, Judge:

¶ 1 Donald Mitchell appeals from his conviction of ten counts of sexual exploitation of a minor, a second degree felony. We affirm.

BACKGROUND

¶ 2 “When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. Similarly, “[i]n reviewing a trial court's ruling on a suppression motion, we consider the facts in a light most favorable to the trial court's findings,” State v. Patefield, 927 P.2d 655, 656 (Utah Ct.App.1996) (citation and internal quotation marks omitted), and recite them accordingly, State v. Blevins, 968 P.2d 402, 402 (Utah Ct.App.1998).

¶ 3 On September 20, 2006, Agent David White, assigned to the Utah Attorney General's Internet Crimes Against Children taskforce, used a computer program to access a peer-to-peer file-sharing network. He observed that a particular IP address was sharing files known to contain child pornography. Agent White then requested a search warrant; however, his affidavit in support of a search warrant contained an apparent inconsistency. He stated that he had observed this activity on September 26, 2006, but also stated that he had requested that the internet service provider identify the subscriber to whom that IP address was assigned as of September 20, 2006. Agent White explained the discrepancy at trial. Based on his contemporaneous notes, he testified that “the actual date that I made the direct connection with the suspect IP address was actually on

[318 P.3d 241]

September 20th and was not on September 26th. I must have taken the time 12:26 and somehow got it in there. It was a typo.”

¶ 4 The internet service provider informed Agent White that the IP address was assigned to Mitchell as of September 20, 2006. While the internet service provider listed Mitchell's address as 50 North 100 East, other databases listed Mitchell's address as 70 North 100 East. Based on information from the local sheriff, Agent White concluded that both addresses were “associated with the same house.” Agent White's affidavit in support of a search warrant stated that as a result of his investigation he had “probable cause to believe that evidence [is] located on the premises at 70 North 100 East.” The magistrate agreed and issued a search warrant for that address.

¶ 5 On November 14, 2006, Agent White and other officers approached Mitchell at the golf course where he worked, told him that they had a search warrant for his house, and told him that he would need to accompany them back to his house. The officers informed Mitchell of his Miranda rights, which he waived. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For the safety of the officers, Mitchell was handcuffed during the drive to and search of his house. During the eight-mile drive, Mitchell gave the officers directions. When asked if he had downloaded child pornography, Mitchell responded that he had but stated that he had done so accidentally and that he had deleted the files. Upon arriving, Mitchell accompanied the officers into his house. After a search lasting nearly two hours, the officers confiscated two computers for later analysis and uncuffed Mitchell.1

¶ 6 The officers then obtained a second warrant, which authorized forensic analysis of the seized computers. This analysis revealed five child pornography videos on one of the computers. Because the videos depicted ten different minors, Mitchell was charged with ten counts of sexual exploitation of a minor.

¶ 7 Before trial, Mitchell moved to suppress the statements he made to the officers, arguing that he was unlawfully arrested at the time of the conversation in the car. Mitchell also sought suppression of the videos on the ground that the second search warrant had been issued based on the illegally obtained statements. After a hearing, the trial court denied Mitchell's motion in a written order.

¶ 8 On the first day of trial, Mitchell filed a second motion to suppress on the ground that the IP address was not assigned to him as of September 26, 2006, the date listed in the affidavit. Mitchell also gave notice that he intended to call alibi witnesses and have his expert witness testify about evidence that Mitchell had received just days before trial. The trial court ruled that, while Mitchell could testify about his alibi, he could not call his intended alibi witnesses due to failure to timely file notice. The trial court further ruled that Mitchell's expert's testimony would be limited in scope because of his failure to file a proper report.

¶ 9 At trial, the agent who conducted the forensic analysis testified that he had identified a total of “ten picture files and ten video files” as “possible images of child pornography.” This number of files exceeded the five files Mitchell was ultimately charged with possessing. Mitchell objected to the testimony on relevance grounds, but the trial court allowed it to rebut Mitchell's claim that “there were only [the] five files,” which constituted “really a small minority of files.” 2

ANALYSIS
I. Validity of the Search Warrant

¶ 10 Mitchell first contends that the search warrant authorizing the search of his home

[318 P.3d 242]

computers was invalid under article I, section 14 of the Utah Constitution and under the Fourth Amendment to the United States Constitution. Mitchell argues that the trial court therefore should have granted his second motion to suppress. The trial court denied that motion to suppress as untimely. Mitchell has not challenged this basis for the trial court's ruling. “Because [Mitchell] fails to address the basis of the district court's ruling, we reject this challenge.” Golden Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 17, 241 P.3d 375.3

¶ 11 Mitchell also argues that he received ineffective assistance of counsel when his trial counsel failed to file a timely motion to suppress. SeeUtah R.Crim. P. 12(c)(1) (requiring motions to suppress to be raised at least five days prior to trial). To succeed on a claim of ineffective assistance of counsel, a defendant must show both “that counsel's representation fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

¶ 12 Mitchell has not demonstrated that he was prejudiced by his counsel's failure to file a timely motion to suppress, because he has not demonstrated a reasonable probability that the motion to suppress would have been granted had it been timely filed. Mitchell asserts that the affidavit supporting the warrant to search his house did not establish probable cause on its face. Probable cause exists when “there is a ‘fair probability’ that evidence of the crime will be found in the place or places named in the warrant.” State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

¶ 13 The search warrant affidavit contained an inaccurate date. Agent White's affidavit in support of the search warrant stated that on “September 26, 2006, at approximately 12:26 HRS MST,” he observed child pornography being offered from a specific IP address on a peer-to-peer file-sharing network. Agent White further stated that he later sent an administrative subpoena to the internet service provider holding that IP address, requesting identification of the subscriber using that specific IP address “on September 20th, 2006, at 12:26 hours MST.” The internet service provider responded that the IP address was assigned to Mitchell for a nine-day period including September 20.

¶ 14 Mitchell, assuming that the September 26 date was accurate, argues that the affidavit does not establish probable cause, because IP addresses frequently change. Therefore, Mitchell argues, no information was provided to show that he was the subscriber of the IP address on September 26, when the child pornography was being shared. The State responds that the September 26 date was a typographical error that did not undermine the probable cause determination.

¶ 15 Errors in an affidavit do not require suppression when the magistrate has a substantial basis to determine that the erroneous facts are merely typographical errors and the facts otherwise support a determination of probable cause. See, e.g., State v. Valle–Flores, 2005 UT App 290, ¶¶ 2–5, 117 P.3d 1069 (holding that a warrant to search 626 Pueblo Street was supported by probable cause despite the supporting affidavit's reference to both 624 Pueblo Street and 626 Pueblo Street);

[318 P.3d 243]

State v. Wallace, 2002 UT App 295, ¶¶ 24–26, 55 P.3d 1147 (holding that a warrant to obtain a blood sample was valid despite a reference to a urine sample in the addendum to the affidavit because the “minor inconsistency” did “not seriously undermine the information underlying the probable cause determination”); United States v. Snyder, 471 Fed.Appx. 884, 885 (11th Cir.2012) (per curiam)...

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23 practice notes
  • State v. Macdonald, No. 20150123-CA.
    • United States
    • Court of Appeals of Utah
    • July 28, 2017
    ...in the light most favorable to the district court's findings and recite them accordingly. See State v. Mitchell , 2013 UT App 289, ¶ 2, 318 P.3d 238. However, because this case comes to us on appeal from an interlocutory order, MacDonald remains presumed innocent of the charged offense.The ......
  • Commonwealth v. Leed, No. 122 MAP 2016
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 1, 2018
    ...v. Gomez , 107 Or.App. 698, 813 P.2d 567, 569 (1991) ; Lane v. State , 971 S.W.2d 748, 753–54 (Tex. Ct. App. 1998) ; State v. Mitchell , 318 P.3d 238, 242–43 (Utah Ct. App. 2013) ; State v. Vickers , 148 Wash.2d 91, 59 P.3d 58, 68 (2002).12 The dissents agree with the rule we adopt, but not......
  • State v. MacNeill, No. 20140873-CA
    • United States
    • Court of Appeals of Utah
    • March 16, 2017
    ...support. See Dillon v. Southern Mgmt. Corp. Ret. Trust , 2014 UT 14, ¶ 59, 326 P.3d 656 (citing State v. Mitchell , 2013 UT App 289, ¶ 31, 318 P.3d 238 ). Accordingly, "[a]n appellant cannot demonstrate that 397 P.3d 639the evidence supporting a factual finding falls short without giving a ......
  • State v. Sosa-Hurtado, Opinion No. 20150583-CA
    • United States
    • Court of Appeals of Utah
    • March 1, 2018
    ...do not read Brady " to permit a prosecutor to disclose exculpatory evidence during trial. State v. Mitchell , 2013 UT App 289, ¶ 34 n.5, 318 P.3d 238 (citing United States v. Burke , 571 F.3d 1048, 1054 (10th Cir. 2009) ). "However, Pinder controls our decision here and we do not look beyon......
  • Request a trial to view additional results
23 cases
  • State v. Macdonald, No. 20150123-CA.
    • United States
    • Court of Appeals of Utah
    • July 28, 2017
    ...in the light most favorable to the district court's findings and recite them accordingly. See State v. Mitchell , 2013 UT App 289, ¶ 2, 318 P.3d 238. However, because this case comes to us on appeal from an interlocutory order, MacDonald remains presumed innocent of the charged offense.The ......
  • Commonwealth v. Leed, No. 122 MAP 2016
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 1, 2018
    ...v. Gomez , 107 Or.App. 698, 813 P.2d 567, 569 (1991) ; Lane v. State , 971 S.W.2d 748, 753–54 (Tex. Ct. App. 1998) ; State v. Mitchell , 318 P.3d 238, 242–43 (Utah Ct. App. 2013) ; State v. Vickers , 148 Wash.2d 91, 59 P.3d 58, 68 (2002).12 The dissents agree with the rule we adopt, but not......
  • State v. MacNeill, No. 20140873-CA
    • United States
    • Court of Appeals of Utah
    • March 16, 2017
    ...support. See Dillon v. Southern Mgmt. Corp. Ret. Trust , 2014 UT 14, ¶ 59, 326 P.3d 656 (citing State v. Mitchell , 2013 UT App 289, ¶ 31, 318 P.3d 238 ). Accordingly, "[a]n appellant cannot demonstrate that 397 P.3d 639the evidence supporting a factual finding falls short without giving a ......
  • State v. Sosa-Hurtado, Opinion No. 20150583-CA
    • United States
    • Court of Appeals of Utah
    • March 1, 2018
    ...do not read Brady " to permit a prosecutor to disclose exculpatory evidence during trial. State v. Mitchell , 2013 UT App 289, ¶ 34 n.5, 318 P.3d 238 (citing United States v. Burke , 571 F.3d 1048, 1054 (10th Cir. 2009) ). "However, Pinder controls our decision here and we do not look beyon......
  • Request a trial to view additional results

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