District Court, Salt Lake Department The Honorable Ann Boyden
Marshall M. Thompson and Alexandra S. McCallum, Attorneys for
D. Reyes and Kris C. Leonard, Attorneys for Appellee
Ryan M. Harris authored this Opinion, in which Judges Gregory
K. Orme and Kate A. Toomey concurred.
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.
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
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
In 2008, a woman (Mother) moved to West Valley City with her
three children. At that time, Mother's oldest son
(Mark) 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.
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
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.
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
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.
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."
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.
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.
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."
The jury convicted Jordan on all thirty-three counts.
AND STANDARDS OF REVIEW
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)).
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
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.
We begin by addressing Jordan's rule 23B motion. We then
turn to the arguments he raises on appeal.
Jordan's Rule 23B Motion
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. We discuss these
issues, in turn, after a discussion of rule 23B generally.
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,
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.
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.
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.
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, ¶ 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 ...