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State v. Jordan

Court of Appeals of Utah

August 30, 2018

State of Utah, Appellee,
v.
Michael Alan Jordan, Appellant.

          Third District Court, Salt Lake Department The Honorable Ann Boyden No. 141910848

          Marshall M. Thompson and Alexandra S. McCallum, Attorneys for Appellant

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Kate A. Toomey concurred.

          HARRIS, JUDGE

         ¶1 A jury convicted Michael Alan Jordan of thirty-three felonies, including sexual abuse of two of his minor stepchildren, possession of child pornography, and tampering with a witness. Jordan appeals, arguing that his trial counsel provided constitutionally ineffective assistance by, among other things, failing to take steps necessary to introduce impeachment evidence against one of his stepchildren, and failing to object to the prosecutor's closing argument regarding Jordan's possession of certain photographs. Jordan also asserts that the State's evidence was insufficient to support a conviction on four of the counts on which he was convicted.

         ¶2 In addition, Jordan seeks a remand under rule 23B of the Utah Rules of Appellate Procedure so that the trial court can make evidentiary findings in connection with his contention that his trial counsel provided constitutionally ineffective assistance. In his rule 23B motion, Jordan also advances the argument regarding counsel's failure to impeach one of his step-children, and additionally argues that his counsel should have presented evidence that one of his step-children also had access to the computer that contained images of child pornography.

         ¶3 For the reasons that follow, we affirm twenty-one of Jordan's thirty-three convictions, but vacate his conviction on one count for lack of sufficient evidence. We also grant Jordan's rule 23B motion, at least in part, with regard to his other eleven convictions, and remand this case to the trial court for further proceedings on those counts.

         BACKGROUND

         ¶4 In 2008, a woman (Mother) moved to West Valley City with her three children. At that time, Mother's oldest son (Mark[1]) was twelve, and her younger son (Luke) was six. Jordan lived in the same part of the city. Mark met Jordan in the neighborhood and later introduced him to Mother. Mother and Jordan married in 2010, and later had two children of their own.

         ¶5 According to Mark, Jordan began to sexually abuse him in 2008, soon after they met, and continued to do so periodically for the next five or six years. In 2014, when Mark was seventeen, Jordan showed him photographs of Jordan sexually abusing Luke. Mark later testified that, after seeing the photographs of his little brother, "I was devastated. I was done. I'd had enough." Later that same year, Mark informed Jordan that he would be moving out of the house in September 2014, as soon as he turned eighteen.

         ¶6 The day after Mark's birthday, police received an anonymous call requesting a "welfare check" at the family residence, where Jordan, Mother, and Luke were present. When a police officer arrived, Luke maintained that he was "fine." The officer and Jordan then left the residence. Once the officer and Jordan were gone, Luke decided that it was "the perfect time to tell [his] mom" that "everything's not okay" and that Jordan had been sexually abusing him for over five years. After hearing this, Mother met briefly with police later that evening, and then took both Luke and Mark in for police interviews the following day.

         ¶7 After investigation, the State charged Jordan with thirty-three criminal counts, including four counts of aggravated sexual abuse of a child, first degree felonies; four counts of sodomy upon a child, first degree felonies; four counts of forcible sodomy, first degree felonies; sixteen counts of sexual exploitation of a minor, second degree felonies; one count of tampering with a witness, a third degree felony; and four counts of dealing harmful material to a minor child, third degree felonies. Six of these counts involve Jordan's actions toward Luke, and twenty involve Jordan's actions toward Mark.[2]

         ¶8 The case proceeded to trial, and Mark and Luke each testified that Jordan sexually abused them for years. Each separately testified that the abuse included mutual masturbation, mutual oral sex, and anal sex, as well as Jordan showing them pornography and taking nude or partially-nude photographs of them. Luke also testified that, shortly before he disclosed the abuse to Mother, Jordan took him into Jordan's office, showed him a gun, and told Luke that if he ever told anyone, Jordan would shoot him and his family.

         ¶9 Also during trial, the prosecution introduced into evidence various photographs obtained from Jordan's laptop. A forensic examiner described five photographs recovered from the laptop (marked as Exhibits 32-36) that depicted young nude males. Relatedly, during Mark's testimony, Mark also described nine additional photos recovered from the laptop (marked as Exhibits 23-31) that depicted Mark's naked body, including his genitals. Mark explained that Jordan took eight of the nine photos while Mark was still a minor, and that the ninth photograph was a selfie that Mark took of himself, while he was a minor, and then electronically sent to Jordan. Mark testified that Jordan would sometimes ask him to take photographs of himself while naked and send them to Jordan, and that Jordan told him that if he did not do so he would be "in trouble."

         ¶10 At a later point in the trial, the prosecutor also asked Mother about two more photographs discovered on Jordan's laptop (marked as Exhibits 21-22). Mother explained that Exhibit 21 was a photograph of one of their then-toddler sons sitting naked on a counter in a bathroom, and that Jordan could be seen in the mirror taking the photo. Mother explained that Exhibit 22 showed the same child naked while "walking outside" near a canal. Mother stated that she did not know who took that photograph.

         ¶11 During trial, but outside the presence of the jury, Jordan argued that the State would need expert testimony to establish that the persons depicted in Exhibits 33-36 were indeed under eighteen years of age. The trial court disagreed, determining that "the jurors can look to their life experience and to their judgment in reviewing [the] evidence." The court later determined that there was sufficient evidence to allow the charges related to those four exhibits to go to the jury.

         ¶12 During closing, the State made specific arguments regarding Exhibits 21 and 22. Referring to Exhibit 21-the photograph of the naked toddler in the bathroom-the State asked the jury to "review that photo in light of all of the evidence," and stated that, "when you do that, you know that [Jordan] wasn't taking a picture of his son because he's cute, because he wants a picture of his kid in the bathroom. He was doing it because it's child pornography." Referring to Exhibit 22-the photograph of the naked toddler walking outside-the prosecutor acknowledged that "under normal circumstances, you could say, hey, that's just a dad taking a picture of his kid when he's naked, not a big deal," but that under the circumstances of this case, "there should be no doubt that the defendant took that picture because he wanted a picture of a naked little boy. Why? Because he's sexually attracted to boys."

         ¶13 The jury convicted Jordan on all thirty-three counts.

         ISSUES AND STANDARDS OF REVIEW

         ¶14 Jordan appeals his convictions, and in addition has moved for remand under rule 23B of the Utah Rules of Appellate Procedure. "A remand under rule 23B is 'available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.'" State v. Crespo, 2017 UT App 219, ¶ 24, 409 P.3d 99 (quoting Utah R. App. P. 23B(a)).

         ¶15 In his appeal, Jordan raises two types of arguments. First, he contends that his trial counsel was constitutionally ineffective. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672, 677 (quotation simplified).

         ¶16 Second, he contends that the State failed to introduce sufficient evidence to convict him on certain counts. "When we review a challenge to the sufficiency of the evidence, we review the evidence and all inferences that may reasonably be drawn from it in the light most favorable to the jury's verdict," and we "vacate the conviction only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt" about the defendant's guilt. See State v. Patterson, 2017 UT App 194, ¶ 2, 407 P.3d 1002.

         ANALYSIS

         ¶17 We begin by addressing Jordan's rule 23B motion. We then turn to the arguments he raises on appeal.

         I. Jordan's Rule 23B Motion

         ¶18 Jordan raises three issues in his rule 23B motion, two of which we discuss here at length. First, Jordan asserts that "[t]rial counsel was ineffective for failing to investigate or timely pursue a motion under rule 412 of the Utah [R]ules of Evidence" that would have allowed Jordan to more effectively cross-examine Luke. Second, Jordan asserts that trial counsel was ineffective for failing to show that Mark, in addition to Jordan himself, "had full access to" Jordan's laptop computer.[3] We discuss these issues, in turn, after a discussion of rule 23B generally.

         A

         ¶19 In all criminal cases, "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The right to counsel includes the right to effective counsel, Strickland v. Washington, 466 U.S. 668, 686 (1984), and applies to privately-retained counsel as well as counsel appointed by the court, Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). To demonstrate that his counsel provided constitutionally defective representation, Jordan must establish both (1) that counsel's performance was objectively deficient, and (2) that there is a reasonable probability that, but for counsel's deficient performance, Jordan would have received a more favorable outcome at trial. State v. Burnett, 2018 UT App 80, ¶¶ 21-22.

         ¶20 A defendant may raise ineffective assistance of counsel claims on appeal only if "the trial record is adequate to permit decision of the issue." State v. Griffin, 2015 UT 18, ¶ 16 (quotation simplified). If the record is not adequate, a defendant's ability to bring such claims on appeal is impaired. See id. (stating that "a defendant cannot bring an ineffective assistance of counsel claim on appeal without pointing to specific instances in the record demonstrating both counsel's deficient performance and the prejudice it caused the defendant"). Rule 23B of the Utah Rules of Appellate Procedure addresses this scenario, and provides a mechanism, in appropriate circumstances, for a defendant to develop the facts necessary to support a claim for ineffective assistance of counsel. See Griffin, 2015 UT 18, ¶ 18 (stating that "[t]he purpose of a rule 23B remand is to develop new evidence in the record, without which a defendant cannot bring his ineffective assistance of counsel claim on appeal"); see generally Utah R. App. P. 23B.

         ¶21 Under rule 23B, "[a] party to an appeal in a criminal case may move the court to remand the case to the trial court for entry of findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel." Utah R. App. P. 23B(a). "The motion shall be available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Id.; see also Griffin, 2015 UT 18, ¶ 18 (noting that "remand is not appropriate where the alleged facts are already in the record"). "[S]peculative allegations are those that have little basis in articulable facts but instead rest on generalized assertions." Griffin, 2015 UT 18, ¶ 19.

         ¶22 In moving for remand under rule 23B, "[t]he motion shall include or be accompanied by affidavits alleging facts not fully appearing in the record on appeal that show the claimed deficient performance of the attorney." Utah R. App. P. 23B(b). "An affiant must submit specific facts and details that relate to specific relevant occurrences." Griffin, 2015 UT 18, ¶ 19. Affidavits in rule 23B motions "shall also allege facts that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance." Utah R. App. P. 23B(b).

         ¶23 We have previously identified three requirements that a movant must meet to prevail on a rule 23B motion: (1) the motion "must be supported by affidavits alleging facts outside the existing record"; (2) "the alleged facts must be non-speculative"; and (3) the alleged facts, when assumed to be true, "must establish both elements of a traditional ineffective-assistance claim." State v. Tirado, 2017 UT App 31, ΒΆ 14, 392 P.3d 926. In evaluating a rule 23B motion, "we express no opinion . . . as to the ultimate merits of the ineffective assistance of counsel claim," because the record is undeveloped, and ...


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