Today, in State v. Jordan, No. 20160439-CA, 2018 Utah App. LEXIS 182 (Utah Ct. App. Aug. 31, 2018), Judge Ryan M. Harris of the Court of Appeals of Utah (the intermediate appellate court in that state) affirmed the appellant's conviction for child abuse, possession of child pornography, and witness tampering.
The opinion addresses a motion under Rule 23B of the Utah Rules of Appellate Procedure to remand the case to the trial court so it can make evidentiary findings with respect to the appellant's lawyer providing ineffective assistance of counsel. Jordan argued that his lawyer failed to show that one of the victims ("Mark") had access to Jordan's laptop computer. The Court noted that when one person has sole access to a computer, they have constructive possession of the images on that computer. When more than one person has access, the burden to establish an inference of constructive possession is greater. Evidence must be presented that an individual exercised dominion and control over the electronic evidence. The appellant submitted an affidavit sworn to by his brother that Mark had gained access to the appellant's laptop by logging in with the required password. Judge Harris ruled that, "This evidence, if true, would tend to support the conclusion that both Mark and Jordan had access to the laptop, which would require the State to meet a more stringent burden in order to prove that Jordan constructively possessed the images." Id. at *21.
Taking into consideration that contraband images found on the laptop did not provide any details about when they were taken, Judge Harris concluded that the Rule 23B motion should be granted because there was no reason for the counsel to have failed to require the State to have met the more stringent burden for constructive possession when more than one person had access to a laptop.