State v. Moyer

• Decision Date: 09 January 2014
• Docket Number: No. 20120190–CA.,20120190–CA.
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jack David MOYER, Defendant and Appellant.

318 P.3d 1182

751 Utah Adv. Rep. 26

STATE of Utah, Plaintiff and Appellee,

v.Jack David MOYER, Defendant and Appellant.

No. 20120190–CA.

Court of Appeals of Utah.

Jan. 9, 2014.

Richard G. Uday, Salt Lake City, for Appellant.

Sean D. Reyes and Brett J. DelPorto, Salt Lake City, for Appellee.

Senior Judge RUSSELL W. BENCH authored this Memorandum Decision, in which Judges J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.¹

Memorandum Decision

BENCH, Senior Judge:

¶ 1 Jack David Moyer was convicted of ten counts of sexual exploitation of a minor, a second degree felony, based on his possession of child pornography. SeeUtah Code Ann. § 76–5a–3 (LexisNexis 2008) (current version at Utah Code Ann. § 76–5b–201 (LexisNexis 2012)). Moyer appeals his convictions, alleging prosecutorial misconduct and juror bias. We affirm.

I. Prosecutorial Misconduct

¶ 2 Moyer argues that he was denied his right to a fair trial when the prosecutor made three improper statements in closing argument. In the first instance, referring to testimony that the file-sharing program on Moyer's computer was the enhanced version of LimeWire rather than the free version, the prosecutor said that Moyer “bought a version that he wanted to be able to use to get his child pornography faster.” Moyer objected, arguing that the testimony did not establish how LimeWire came to be on the computer. The trial court sustained the objection and admonished the jury to ignore the statement. The prosecutor also corrected his statement to limit it to the evidence that had been provided.

¶ 3 In the second instance, the prosecutor discussed how possession of child pornography “is not a victimless crime”:

The children who are portrayed in these videos and that you will read [about] ... were victimized. But these videos are a memorialization of the crimes that were committed against them. The horrible things that were done to them are forever contained on videos that are now being traded over the internet by people like Mr. Moyer.

The prosecutor added that people like himself, his co-counsel, and the Internet Crimes Against Children task force (ICAC) are “fighting this” by “trying to catch offenders who do this.” Moyer objected, arguing that the case was not about the prosecutors' and ICAC agents' work. The trial court sustained the objection and directed the prosecutor to limit his argument to the evidence.

¶ 4 In the third instance, the prosecutor returned to the theme of the impact of child pornography on the victims:

What I want to talk to you about is the victims in these cases. It's unusual in a sex case and a sex crime to not have the victim here to testify and to tell you about what happened to her and how that has affected her life. And I can tell you that we know from victims in these cases that these videos and the sharing of them have devastating effects. And the victims who have been portrayed in these videos, who have been victimized, and then videotaped feel like when these videos are traded and shared and viewed by people like the Defendant, it's revictimizing them. They feel like they can never have the peace—

Moyer objected, stating that “again, it's what these victims feel like.” The trial court sustained the objection and admonished the prosecutor, “Just limit yourself to the evidence that's been provided here and close, please.”

¶ 5 After the jury was excused, Moyer moved for a mistrial. He argued that even though the objections had been sustained, the damage had been done and his Fifth Amendment rights had been violated because the prosecutor effectively made the trial about “something other than Jack Moyer.” The trial court denied the motion.

¶ 6 “We review rulings on motions for a mistrial based on prosecutorial misconduct for abuse of discretion.” State v. Reed, 2000 UT 68, ¶ 18, 8 P.3d 1025;accord State v. Cummins, 839 P.2d 848, 852 (Utah Ct.App.1992) (“[B]ecause the trial court is in the best position to determine the impact of a statement upon the proceedings, its rulings on whether the prosecutor's conduct merits a mistrial will not be overturned absent an abuse of discretion.”). Assuming without deciding that the prosecutor's statements were improper, we cannot conclude that the trial court exceeded its discretion in denying the motion for a mistrial.

¶ 7 A prosecutor's improper remarks warrant a mistrial only when “under the circumstances of the particular case, the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence, there would have been a more favorable result for the defendant.” State v. Tillman, 750 P.2d 546, 555 (Utah 1987); accord State v. Campos, 2013 UT App 213, ¶ 67, 309 P.3d 1160. In considering “the circumstances of the case as a whole,” “it is appropriate to look at the evidence of defendant's guilt,” State v. Troy, 688 P.2d 483, 486 (Utah 1984), whether the prosecutor corrects any improper comments, cf. State v. Davis, 2013 UT App 228, ¶ 39, 311 P.3d 538, and any instructions given to the jury, see State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993); see also Taylor v. State, 2007 UT 12, ¶ 115, 156 P.3d 739 (“When a court sustains an objection and gives a curative instruction, a defendant must show that ‘the [prosecutor's] comment was so prejudicial as to defeat the mitigating effect of the court's ... curative instructions.’ ” (alteration and omission in original) (quoting State v. Kohl, 2000 UT 35, ¶ 24, 999 P.2d 7)).

¶ 8 Here, the main issue at trial was identity. Moyer claims that the only evidence connecting him to the child pornography was “circumstantial at best” and that conflicting evidence was presented that others had access to Moyer's computer. See State v. Andreason, 718 P.2d 400, 403 (Utah 1986) (per curiam) (“When the evidence in the record is circumstantial or sufficiently conflicting, jurors are more likely influenced by an improper argument.”).

¶ 9 Though circumstantial, the evidence supporting Moyer's guilt was strong. According to the testimony of an ICAC investigator (Investigator), the operating system on Moyer's computer was installed on February 6, 2007, with Moyer's name entered as the registrant. LimeWire was installed at about the same time, and the first suspected child pornography file was downloaded February 7, 2007. Seventy-nine images of suspected child pornography were downloaded to Moyer's computer between February 7, 2007, and March 14, 2007, the day the computer was seized.² When Investigator and another ICAC agent (Agent) came to Moyer's house on March 14 to investigate illegal activity that Agent had observed on Moyer's IP address, Moyer told him that “he was the responsible person for the LimeWire activity on the computer.” Investigator testified that about eighty percent of the files in the LimeWire shared folder were associated with child pornography.

¶ 10 The forensic evidence of Moyer's computer activity on the day the computer was seized is also strongly corroborative of Moyer's identity. According to Investigator, someone logged in to Moyer's computer at 3:18 p.m. on March 14. The user logged in to MySpace at 3:19 p.m., and the MySpace profile displayed the words “Hello Jack.” The user opened LimeWire at 3:23 p.m. and at 3:24 p.m. opened a text file that contained a story describing sexual acts involving minors. At 3:25 p.m., the user began to chat with people on Yahoo! Messenger, with a username that appeared to be associated with Moyer. From 3:59 p.m. to 4:02 p.m., the user opened a website associated with Moyer's employer and accessed Moyer's work schedule, timecard, and payroll information. The user resumed activity at 6:44 p.m., using Yahoo! Messenger intermittently until 7:24 p.m. At 7:37 p.m., 7:41 p.m., and 7:42 p.m., the user accessed three files containing stories describing sexual acts involving minors. Then at 7:44 p.m., the user attempted to open, from the incomplete download folder, a video with a title suggestive of child pornography.³

¶ 11 Agent testified that he and Investigator came to Moyer's house at “about 7:30 in the evening” on March 14 to conduct a “knock-and-talk.” Moyer answered the door, and after talking on the porch for “[m]aybe a little less” than ten to fifteen minutes, Moyer invited them in to see his computer. Agent and Investigator seized Moyer's computer, unplugging it at 7:58 p.m.—fourteen minutes after a user had attempted to open the video of suspected child pornography. Agent testified that no one else was present in the house at the time, though Moyer presented evidence to the contrary.

¶ 12 Moyer argues that he adduced evidence at trial showing that others had access to his computer. Moyer's sister testified that several people lived at the house, including one friend (Friend) who lived there “for months.” Moyer's sister testified that she saw Friend use Moyer's computer, typically at night while Moyer was at work, but that she could not see what Friend was doing on the computer. In rebuttal, the prosecutor called Friend to testify. Friend stated that he lived at the house for two or three weeks “[t]ops” and that he never used Moyer's computer. The prosecutor also had the records clerk for the county jail testify. She testified that Friend was incarcerated from February 20, 2007, to April 10, 2007, which covered the bulk of the period during which child pornography files were downloaded and accessed (February 7, 2007, through March 14, 2007).

¶ 13 Despite the evidence presented at trial that others had access to Moyer's computer, the circumstantial evidence discussed above strongly ties Moyer to the possession of child pornography. Use of Moyer's employment, MySpace, and Yahoo! Messenger accounts within minutes of accessing child pornography files strongly supports the jury's apparent inference that Moyer accessed the files. Furthermore, given Moyer's admission that he was responsible for the LimeWire activity on the computer and Investigator's testimony that the LimeWire...