State v. Case
State v. Case, 2020 UT App 81 (Christiansen Forster, J.)
The State charged the defendant with possessing child pornography. At trial, the State admitted testimony of the defendant’s marital sexual activities and photographs of legal erotica, noting that this evidence was relevant because the defendant had unique sexual fetishes with feet and hosiery. The State presented the jury with 37 images of child pornography but only charged the defendant with possessing 7 images. The jury instructions informed the jury only that they had to reach a unanimous agreement on the verdict. The jury convicted the defendant on all counts. The Utah Court of Appeals affirmed, holding:
- To the extent the defendant argues that the district court erred in admitting evidence of marital sexual activities and photographs of legal erotica, the defendant did not present an adequate record for the Court of Appeals to rule on. The district court issued a bench ruling on these issues, but a transcript of the relevant hearing was never requested or made part of the record.
- Once the State failed to elect which act of possessing child pornography supported each charge, the district court should have instructed the jury that it needed to unanimously agree on which specific criminal act or image satisfied each charge to convict. But the defendant has not shown a reasonable likelihood of a different verdict. The State presented 37 images, and there is little doubt that the jury would have selected the 7 most sexually graphic depictions of child pornography among the 37 that were admitted into evidence, resulting in the same 7 convictions.