State v. Jordan , 2021 UT 37 ( 2021 )

2021 UT 37IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
MICHAEL ALAN JORDAN,
Petitioner.
No. 20191034
Heard May 12, 2021
Filed July 29, 2021
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Ann Boyden
No. 141910848
Attorneys:
Robert T. Denny, Salt Lake City, for petitioner
Sean D. Reyes, Att’y Gen., Kris C. Leonard, Assistant Solic. Gen.,
Matthew B. Janzen, Salt Lake City, for respondent
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 In this case we are asked to interpret the terms of the Utah
Code defining the crime of sexual exploitation of a minor—
specifically, the definition of “[c]hild pornography” under Utah
Code section 76-5b-103. “Child pornography” is defined to
include “any visual depiction” of “sexually explicit conduct”
where “the production of the visual depiction involves the use of
a minor engaging in sexually explicit conduct.” UTAH CODE § 76-
5b-103(1)(a). And “[s]exually explicit conduct” is defined to
include a “visual depiction of nudity or partial nudity for the
purpose of causing sexual arousal of any person.” Id. § 76-5b-
103(10)(f). We hold that a factfinder may consider extrinsic
STATE v. JORDAN
Opinion of the Court
evidence of the sexual purpose of a person charged with
producing a visual depiction of nudity—the purpose inquiry is
not limited to the four corners of the image itself. And we affirm
the court of appeals’ decision rejecting a claim for ineffective
assistance of counsel under this view of the statute.
I
A
¶2 In 2008 Michael Alan Jordan was living in West Valley
City near a single mother and her three children.1 Jordan
developed a relationship with the oldest son, twelve-year old
Mark.2 Mark introduced Jordan to his mother and soon
considered Jordan a father figure. Jordan and the mother were
married in 2010. They later had two children of their own.
¶3 According to Mark, Jordan began to sexually abuse him
soon after they met and continued to do so for the next five or six
years. In 2014, when Mark was seventeen, Jordan showed him
photographs of Jordan sexually abusing Mark’s younger brother,
Luke.3 Mark was devastated. He later told Jordan that he would
be moving out of the house as soon as he turned eighteen (in
September 2014). Thereafter, Jordan began getting rid of
incriminating evidence and reported that his laptop had been
stolen.
¶4 The police received an anonymous call requesting a
“welfare check” at the family home on the day after Mark’s
eighteenth birthday. When a police officer arrived, Jordan
reported that Luke was “fine” and the officer left the residence.
Once the officer and Jordan were gone, Luke decided it was time
______________________________________________________________________________
1In considering a challenge for sufficiency of the evidence,
“we review the record facts in a light most favorable to the jury’s
verdict and recite the facts accordingly.” State v. Holgate, 2000 UT
74, ¶ 2, 10 P.3d 346 (citation omitted). “We present conflicting
evidence only as necessary to understand issues raised on
appeal.” Id. (citation omitted).
2This not the victim’s real name but a pseudonym adopted by
the court of appeals (to protect the anonymity of the victims). We
use the same pseudonyms adopted by the court of appeals.
3 This is also a pseudonym.
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to tell his mother that everything was “not okay.” He told her that
Jordan had been sexually abusing him for over five years. The
mother then met with the police and took both Luke and Mark in
for police interviews.
¶5 The police uncovered a vast collection of child
pornography when they recovered Jordan’s “stolen” laptop.
Jordan was charged with thirty-three counts of child sex crimes,
including aggravated sexual abuse of a child, sodomy on a child,
forcible sodomy of a child, sexual exploitation of a minor, witness
tampering, and dealing in material harmful to minors.
¶6 The case proceeded to trial, and Mark and Luke both
testified that Jordan had sexually abused them for years. Each
stated that the abuse included Jordan showing them pornography
and taking nude or partially nude photographs of them. Luke also
testified that Jordan had showed him a gun and told him that if he
ever disclosed the abuse, Jordan would shoot him and his family.
¶7 At trial the prosecution also introduced evidence of
various photographs obtained from Jordan’s laptop. Some of the
photographs depicted Mark’s naked body, including his genitals.
Two others—Exhibits 21 and 22—depicted one of Jordan’s then-
toddler-aged sons.
¶8 Exhibit 21 depicts Jordan’s nude toddler sitting on a
bathroom counter with shaving cream on his face and a razor in
his right hand. The boy’s genitals are exposed and centered as the
focal point of the image. A nude Jordan can be seen as reflected in
the bathroom mirror, although his genitals are not seen in the
photograph. The toddler’s mother testified that Jordan took this
picture.
¶9 Exhibit 22 depicts Jordan’s toddler son playfully running
naked outside near an irrigation ditch. There is no evidence in the
record as to who took this photo. The toddler’s mother testified
that she did not know who had taken it, and there was no
metadata identifying the source of the photo.
¶10 In closing argument, the prosecutor invited the jury to
consider extrinsic evidence in assessing whether images
constituted child pornography. Regarding Exhibit 21, the
prosecutor asserted 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.”
Appealing to “common sense,” the prosecutor said, “in this case,
in light of all of the evidence that you’ve heard, there should be no
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Opinion of the Court
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 defense attorney did not object to the prosecutor’s
statement and did not request a distinct jury instruction on the
relevance of Jordan’s intentions.
¶11 The jury entered a verdict of guilty on all thirty-three
counts against Jordan. He then filed a timely appeal and also
moved for remand under rule 23B of the Utah Rules of Appellate
Procedure.
B
¶12 In the appeal, Jordan asserted a claim for ineffective
assistance of counsel based on his lawyer’s failure to object to the
prosecutor’s request that the jury consider Jordan’s subjective
intentions in deciding whether Exhibits 21 and 22 qualified as
child pornography under Utah law. He also asserted that the State
had failed to present sufficient evidence—such as expert
testimony—that the individuals depicted in four other
photographs were minors.
¶13 In the motion for remand under rule 23B, Jordan sought
leave to develop a record to support a claim that trial counsel had
been ineffective in failing to investigate allegations that Luke had
previously made false allegations of sexual abuse—allegations
that may have opened the door to impeachment of Luke’s
credibility under rule 412 of the Utah Rules of Evidence. See State
v. Martin, 1999 UT 72, ¶ 16, 984 P.2d 975 (explaining that rule 412
opens the door to “evidence of an alleged rape victim’s previous
false allegations of rape”). In addition, Jordan also sought leave to
develop a record in support of an allegation that Mark had had
full access to Jordan’s laptop computer—an allegation that
conceivably could have opened the door to the argument that
Jordan had not had constructive possession of a few of the images
found on the laptop.
¶14 The court of appeals reversed in part, affirmed in part,
and remanded for limited proceedings under rule 23B.
¶15 First, the court concluded that Jordan had asserted a
successful claim for ineffective assistance of counsel with respect
to the Exhibit 22 but not Exhibit 21. State v. Jordan, 2018 UT App
187, ¶ 52, 438 P.3d 862. Citing State v. Morrison, 2001 UT 73, 31
P.3d 547, the court recognized that there are “potential
constitutional infirmities” implicated by the imposition of
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criminal liability for mere possession of photographs depicting
child nudity “merely on the basis of the intent of the possessor of
the photograph.” Jordan, 2018 UT App 187, ¶ 47 (citing Morrison,
2001 UT 73, ¶ 10). But it concluded that there were no such
“infirmities” in considering the intent of a producer of such
photographs. Id. The State may “establish criminal liability under
the exploitation of a minor statute” by proving that a photograph
“was created ‘for the purpose of causing sexual arousal of any
person.’” Id. ¶ 48 (quoting UTAH CODE § 76-5b-103(10)(f)). And the
court of appeals held that “[o]ne way to prove that the minor was
depicted ‘for the purpose of causing sexual arousal of any person’
is to establish that Jordan himself took the photograph for the
purpose of causing his own sexual arousal.” Id.
¶16 The court of appeals affirmed Jordan’s conviction based
on Exhibit 21 on that basis. Id. ¶ 50. It cited evidence in the record
that Jordan had taken that photo. Id. And it concluded that trial
counsel had not been ineffective because any objection to the
prosecutor’s argument “likely would have been overruled” given
that it “was not improper” under the law. Id.
¶17 The court of appeals reversed Jordan’s conviction based
on Exhibit 22, however. Id. ¶ 51. It noted that the State had not
introduced any evidence as to how that photo had been produced
or who had taken it. Id. And with that in mind, the court of
appeals held that trial counsel had been ineffective in failing to
object to the State’s argument. Id. It also held that there was “at
least a reasonable probability of a better outcome from Jordan,
with respect to this one count, had such an objection been made.”
Id. And it reversed and remanded for a new trial on the charge
related to Exhibit 22. Id. ¶ 52.
¶18 Second, the court of appeals held that the State had failed
to present sufficient evidence of the ages of the subjects depicted
in Exhibit 35, another photograph found on Jordan’s laptop
computer. Id. ¶ 64. Citing State v. Alinas, 2007 UT 83, 171 P.3d
1046, and cases from other jurisdictions, the court of appeals
concluded that “where the minority of” models in alleged child
pornography “is in question, ‘the trial court must examine each
image to be presented to the jury in order to’” decide “which of
the images can be evaluated by the jury on a common-knowledge
basis and which require expert testimony to assist the jury in
determining whether the person depicted’ is a minor.” Jordan,
2018 UT App 187, ¶ 62 (quoting State v. May, 829 A.2d 1106, 1120
(N.J. Super. Ct. App. Div. 2003)). Under this standard, the court of
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STATE v. JORDAN
Opinion of the Court
appeals held that “no expert assistance” was needed with respect
to three of four images challenged by Jordan on appeal. Id. ¶ 63.
But it concluded that there was no “principled way for a lay jury
to determine” whether either of the individuals depicted in one
image was a minor “without the benefit of expert testimony to
assist it.” Id. ¶ 64. And it vacated the judgment of conviction on
the count related to this image. Id.
¶19 Finally, the court of appeals granted Jordan’s rule 23B
motion in part. Id. ¶¶ 38–39. It concluded that Jordan had carried
his burden of establishing a basis for a remand to develop a
record in support of some of the ineffective assistance of counsel
claims set forth in his motion. Id. ¶ 39. And it set forth specific
points to be explored on remand on these issues. Id. ¶ 68.
¶20 Jordan filed a petition for writ of certiorari, asserting that
the court of appeals had erred in its determination that the
prosecutor had not misstated the law in inviting the jury to
consider Jordan’s subjective purpose in taking the photograph
depicted in Exhibit 21. We granted the petition in an order asking
the parties to brief the question “[w]hether the Court of Appeals
erred in concluding that evidence of Petitioner’s subjective
purpose in taking a photograph of a nude child provided a
sufficient basis for a conviction for sexual exploitation of a minor
by a producer of the photograph.”
II
¶21 A threshold issue concerns the scope of the questions
presented for our review. Jordan frames the questions through the
lens of his claim for ineffective assistance of counsel. He asks us to
assess not just whether the prosecutor’s statements in closing
argument were legally correct, but whether he has a viable claim
for ineffective assistance of counsel in challenging those
statements.
¶22 The State seeks a narrower inquiry. It notes that our order
granting certiorari made no express reference to Jordan’s claim for
ineffective assistance of counsel. And it asks us to “decline to
review” the elements of ineffective assistance on that basis—while
also asserting that the claim fails on its own terms in any event.
¶23 The State has a point from the standpoint of the bare text
of our order granting certiorari. See supra ¶ 20. The order makes
no mention of the ineffective assistance of counsel claim. It
focuses instead on whether the court of appeals erred in
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concluding that “subjective purpose in taking a photograph of a
nude child” could provide a “sufficient basis for a conviction of
sexual exploitation of a minor by a producer of the photograph.”
¶24 The order must be understood in the context of the
governing standard of review, however. And that standard makes
clear that our review of the correctness of the court of appeals’
decision must account for the standard of review that governs that
court’s decision. See Estate of Faucheaux v. City of Provo, 2019 UT 41,
¶ 9, 449 P.3d 112 (explaining that “[i]n reviewing [a] court of
appeals’ decision we apply the same standard of review that it
would apply in reviewing the decision of the district court”).
¶25 Jordan failed to preserve an objection to the prosecutor’s
statements in closing argument. So the court of appeals’ analysis
arose in the course of its determination that Jordan had failed to
assert a viable claim for ineffective assistance of counsel. The court
of appeals held that Jordan’s subjective purpose was a legally
appropriate ground for a conviction in a case like this one. But it
advanced that conclusion in the course of its determination that
Jordan had no viable a claim for ineffective assistance of counsel—
in holding that any objection by trial counsel would have been
“futile” given the correctness of the State’s legal position. State v.
Jordan, 2018 UT App 187, ¶ 50, 438 P.3d 862.
¶26 Our order granting Jordan’s petition for writ of certiorari
could have been clearer. But the order should be viewed in light
of the posture of the case and the standard governing the court of
appeals’ review—the standard for assessing a claim for ineffective
assistance of counsel. And that standard frames our analysis of
the correctness of the court of appeals’ decision.
¶27 We affirm the court of appeals’ decision under this
standard. We agree with the court of appeals’ interpretation of the
governing terms of the Utah Code. And we reject Jordan’s
attempts to refute that interpretation under our case law and
under the doctrine of constitutional avoidance. We accordingly
affirm the decision to reject Jordan’s ineffective assistance of
counsel claim on the ground that any objection to the prosecutor’s
statements at closing argument would have been futile.
A
¶28 The sexual exploitation charge against Jordan arises
under Utah Code section 76-5b-201. That provision defines sexual
exploitation of a child to include the knowing production,
possession, or distribution of “child pornography.” UTAH CODE
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Opinion of the Court
§ 76-5b-201. “Child pornography” is defined by statute to include
“the visual depiction of sexually explicit conduct” where “the
production of the visual depiction involves the use of a minor
engaging in sexually explicit conduct.” Id. § 76-5b-103(1)(a). And
“sexually explicit conduct” is defined, in turn, as “actual or
simulated”:
(a) sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex;
(b) masturbation;
(c) bestiality;
(d) sadistic or masochistic activities;
(e) lascivious exhibition of the genitals, pubic region,
buttocks, or female breast of any person;
(f) the visual depiction of nudity or partial nudity
for the purpose of causing sexual arousal of any
person;
(g) the fondling or touching of the genitals, pubic
region, buttocks, or female breast; or
(h) the explicit representation of the defecation or
urination functions.
Id. § 76-5b-103(10).
¶29 Jordan’s conviction under Exhibit 21 rests on subsection
(10)(f). In speaking of this photograph to the jury, the prosecutor
noted that Jordan had taken the photo and alluded to evidence of
Jordan’s subjective sexual interest in children (including his own
stepsons). And he accordingly asked the jury to conclude that
Jordan had taken this picture for the purpose of his own sexual
arousal—“[b]ecause he’s sexually attracted to boys.”
¶30 Jordan contends that this was legal error. He insists that
the statutory inquiry into whether an image qualifies as child
pornography under our law must be “limited to the four corners
of the image” itself. And he asserts that the prosecutor misstated
the law in inviting the jury to consider the “subjective purpose” of
the person who produced the image.
¶31 We disagree. By statute, a person is guilty of sexual
exploitation of a minor if he “knowingly produces” child
pornography. Id. § 76-5b-201(1)(a)(i). And child pornography is
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defined to include a “visual depiction of nudity” of a child “for
the purpose of causing sexual arousal of any person.” Id. § 76-5b-
103(10)(f). Nothing in the terms of the statute requires that the
“purpose” be evident on the face of the image or visual depiction.
¶32 Knowing production of a depiction of child nudity is
actionable if it is “for the purpose of causing sexual arousal of any
person.” The person producing the image qualifies as “any
person.” He thus cannot escape criminal responsibility by noting
that other persons might not see anything sexual in a depiction of
nudity made for the purpose of his arousal.
¶33 This interpretation aligns with our recent precedent.4 It is
also confirmed by two canons of interpretation. One is the
longstanding prohibition on adding terms or conditions not stated
on the face of the statutory code. See Bryner v. Cardon Outreach,
LLC, 2018 UT 52, ¶ 19 & n.15, 428 P.3d 1096 (appealing to the
“substantive terms canon”—elsewhere called the “omitted-case
canon”—and explaining that it provides that “[n]othing is to be
added to what the text states or reasonably implies [so that] a
matter not covered is to be treated as not covered”) (quoting
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 93 (2012)). Another is the
presumption against an interpretation that would render
coordinate terms of a statute meaningless or superfluous. See
Monarrez v. Utah Dep’t. of Transp., 2016 UT 10, ¶ 11, 368 P.3d 846(noting that we avoid an interpretation that “renders parts or
words in a statute inoperative or superfluous” (citation omitted)).
¶34 The anti-surplusage canon causes problems for Jordan’s
interpretation in light of Utah Code section 76-5b-103(10)(e).
Subsection (10)(e) states that “[s]exually explicit conduct”
encompasses the “lascivious exhibition of the genitals, pubic
region, buttocks, or female breast of any person.” UTAH CODE §
76-5b-103(10)(e). And this subsection is aimed at visual depictions
of child nudity that facially “excite lustfulness or sexual
stimulation in the viewer.” See State v. Bagnes, 2014 UT 4, ¶ 41, 322
______________________________________________________________________________
4See State v. Hatfield, 2020 UT 1, ¶ 47, 462 P.3d 330 (concluding
that an image qualifies as child pornography under section 76-5b-
103(10)(f) if it is a visual depiction of “actual nudity or partial
nudity of a minor” and the producer took the picture “for the
purpose of causing sexual arousal”).
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Opinion of the Court
P.3d 719 (citation omitted) (interpreting subsection (10)(e) to have
this focus).
¶35 The subsection (10)(e) category thus encompasses the
prohibition that Jordan has in mind. If the sexual purpose of a
visual depiction of child nudity is evident in the “four corners of
the image itself,” the image will qualify as a “lascivious
exhibition” under subsection (10)(e). And that suggests that the
subsection (10)(f) category sweeps more broadly—to encompass a
depiction of child nudity produced for the subjective purpose of
sexual arousal of the person who created the depiction.
¶36 Subsection (10)(f) stands alone among all of the categories
of sexually explicit conduct set forth in section (10). All of the
other subsections are defined purely in terms of the conduct
(“actual or simulated”) depicted in an image. Subsection (10)(f)
adds a reference to motive or state of mind—in encompassing a
depiction of child nudity “for the purpose of causing sexual
arousal of any person.” And that reference should be given
independent meaning.
¶37 The legislature’s stated purpose in criminalizing child
pornography is “to prohibit the production, possession, . . . and
distribution of materials that sexually exploit a minor” in order to
“eliminate the market for those materials and to reduce the harm
. . . inherent in the perpetuation of” a record of “sexually
exploitive activities.” UTAH CODE § 76-5b-102(1)(e) & (2)
(emphasis added). A person who photographs a naked child for
the purpose of his own sexual arousal has exploited the child.5
And the perpetuation of a record of that exploitation is a harm
that the legislature has targeted—in defining child pornography
broadly to encompass the depiction of child nudity “for the
purpose of sexual arousal of any person.”
______________________________________________________________________________
5See New York v. Ferber, 458 U.S. 747, 758–59 (1982) (noting, in
the course of analyzing whether a state statute that prohibits
knowingly distributing material depicting children engaged in
sexual performances violated the First Amendment, that state
legislatures may determine that abuse occurs in the course of
production of child pornography in the “use of children as
subjects of pornographic materials” and may properly seek to
constrain the distribution network for such materials in an
attempt to prevent its production).
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¶38 We must credit the terms of the statutory definition. To
do so, we hold that a visual depiction of child nudity qualifies as
child pornography if it was produced for the purpose of sexual
arousal.
B
¶39 Jordan resists this interpretation under (1) the analysis in
our opinion in State v. Morrison, 2001 UT 73, 31 P.3d 547, and
(2) the doctrine of constitutional avoidance. We find neither point
persuasive.6
1
¶40 Jordan quotes a line from Morrison in support of his view
that the courts should “look to the [allegedly offending] materials
themselves, not the intent of the possessor, to determine whether
they are proscribed as sexually exploitive.” 2001 UT 73, ¶ 10. He
asserts that Morrison establishes an “objective test” requiring a
focus on “the image itself” instead of the subjective purpose of the
person who created it. And he insists that the court of appeals was
wrong to limit this test to cases involving mere possession of child
pornography.
¶41 We disagree. The quoted line from Morrison comes from a
portion of the opinion in which we were rejecting the premise of
an overbreadth challenge to the constitutionality of an antecedent
to the statute at issue in this case. Id. The defendants had been
charged with knowing possession of depictions of child nudity
“for the purpose of causing sexual arousal of any person.” Id.______________________________________________________________________________
6 Jordan also challenges the State’s approach under the so-
called Dost factors—a set of non-exclusive considerations that may
be useful in assessing whether a given image is framed in a
manner that could qualify it as child pornography. See State v.
Bagnes, 2014 UT 4, ¶¶ 41–43, 322 P.3d 719 (explaining the Dost
factors); see also United States v. Dost, 636 F. Supp. 828, 832 (S.D.
Cal. 1986) (defining the Dost factors). But the Dost factors are not a
mandatory checklist or controlling test, but an exemplary list of
potentially relevant considerations. See Bagnes, 2014 UT 4, ¶ 43
(explaining that “Dost offers an illustrative list of considerations”
for assessing whether an image constitutes child pornography).
And such a list does not foreclose consideration of the producer’s
subjective intent in a case like this one.
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Opinion of the Court
¶¶ 2–3. And they asserted that this prohibition was “overbroad in
that it prohibit[ed] possession of depictions of nude or partially
nude minors” without regard to the nature of the image or the
purpose for which it was produced. Id. ¶ 8. In rejecting that claim,
we acknowledged the existence of federal case law (a) concluding
that “material depicting only a nude or partially nude minor,
without more, is constitutionally protected,” id. (citing New York v.
Ferber, 458 U.S. 747, 765 n.18 (1982) and Osborne v. Ohio, 495 U.S.
103, 112 (1990)); and (b) holding that an image that “‘does not
constitute child pornography . . . does not become child
pornography because it is placed in the hands of [a] pedophile, or
in a forum where pedophiles might enjoy it.’” Id. (quoting United
States v. Villard, 700 F. Supp. 803, 812 (D.N.J. 1988), aff’d, 885 F.2d
117 (3d Cir. 1989)). But we held that the statute avoids these
problems because it does not treat an otherwise innocent
depiction of nudity as child pornography based merely on the
sexual interests or intentions of a possessor. We concluded that a
defendant’s criminal liability for possession “turns not on his
purpose in possessing the material, but, rather, on the purpose for
which the nude or partially nude minor was depicted.” Id. ¶ 12. “If
his possession was knowing, and the nude or partially nude
minor was depicted ‘for the purpose of causing sexual arousal of
any person,’” we held that “a defendant may properly be subject
to criminal liability” for possession of child pornography. Id.
(citation omitted). And we concluded that the defendants’
overbreadth challenge failed on that basis. Id.
¶42 It was in the context of that analysis that we stated that
the courts “look to the materials themselves, not the intent of the
possessor, to determine whether they are proscribed as sexually
exploitive.” Id. ¶ 10. And we agree with the court of appeals that
that statement in no way forecloses consideration of the subjective
intent of a producer of sexually explicit material for knowingly
producing a depiction of child nudity for the purpose of his own
sexual arousal. See Jordan, 2018 UT App 187, ¶ 47 (noting that the
Morrison court “made clear that criminal liability can indeed turn
‘on the purpose for which the nude or partially nude minor was
depicted’” (quoting Morrison, 2001 UT 73, ¶ 10)).
¶43 The statute expressly calls for criminal liability where
such material is knowingly produced “for the purpose of causing
sexual arousal of any person.” UTAH CODE § 76-5b-103(10)(f).
“[A]ny person” includes the producer of the image, for reasons
explained above. Supra ¶¶ 32–38. And nothing in Morrison
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forecloses consideration of that person’s subjective purpose in
creating an image that qualifies as child pornography under the
statute.
2
¶44 Jordan also cites both Morrison and a body of First
Amendment cases in support of a request that we adopt a
“narrow” construction of the statute as a matter of constitutional
avoidance. He suggests that the statutory definition of child
pornography may be subject to a constitutional overbreadth
challenge if it is viewed as criminalizing otherwise-protected
speech “based solely on the subjective purpose of the
photographer.” And he asks us to avoid this constitutional
problem by “limiting the analysis of whether an image constitutes
child pornography to the four corners of the image.”7
¶45 We reject this request under the standard for the canon of
constitutional avoidance set forth in our case law. The canon “is
an important tool for identifying and implementing legislative
______________________________________________________________________________
7Jordan worries that the State’s construction of the statute may
open the door to a range of line-drawing concerns—in treating
“identical photos . . . differently based on the subjective intent of
the producer.” He raises a hypothetical “where a mother takes a
photograph of her nude toddler playing in the bathtub because
she believes her child is cute and she wants to cherish the
memory” while the father is “standing next to her” and takes the
same picture at the same time. The two photos could be
indistinguishable if “[p]laced alongside each other in a family
photo album.” But under the State’s view, the father’s photo could
constitute child pornography if it was taken for the purpose of his
own sexual arousal, while the mother’s picture would not in light
of her purpose.
Perhaps some variations on this concern are addressed
through the mens rea standard set forth in the statute. Arguably,
the requirement of knowing possession could insulate a person
from a charge of possession of the above-noted photograph taken
for the purpose of the father’s arousal if the person is unaware of
that purpose. Or perhaps such possession would be protected
under the First Amendment. We need not and do not resolve any
of these questions here, however, because they are not squarely
presented for our review. See infra ¶ 48.
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intent.” Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d
900. It is based on “a presumption that the legislature either
prefers not to press the limits of the Constitution in statutes, or it
prefers a narrowed (and constitutional) version of its statutes to a
statute completely stricken by the courts.” Id. ¶ 23 (citation and
internal quotation marks omitted). “[W]hen a court rejects one of
two plausible constructions of a statute on the ground that it
would raise grave doubts as to its constitutionality, it shows
proper respect for the legislature, which is assumed to legislate in
the light of constitutional limitations.” Id. (citation and internal
quotation marks omitted).
¶46 This canon is restricted in its application, however. It
comes into play only where a statute is “genuinely susceptible to
two constructions.” Id. ¶ 24 (citation omitted). Such a
“determination . . . is made after, and not before” the “complexities
of a statute are unraveled” by means of our tools of statutory
interpretation. Id. (citation and internal quotation marks omitted).
If and where we can eliminate one of two proffered
interpretations as implausible through “ordinary textual
analysis,” we must implement the statute as written, and are not
in a position to override it on the basis of mere doubts about its
constitutionality. State v. Garcia, 2017 UT 53, ¶ 50 n.7, 424 P.3d 171(citation omitted).
¶47 We reject Jordan’s argument on this basis. For reasons
explained above, supra ¶¶ 32–38, we conclude that there is only
one plausible interpretation of the statutory definition of child
pornography—a defendant is subject to criminal liability under
Utah Code section 76-5b-103(10)(f) for knowingly producing a
depiction of child nudity for the purpose causing the sexual
arousal of the producer. And we are in no position to adopt a
narrowing construction of that provision under the doctrine of
constitutional avoidance.
¶48 In so stating we are not upholding the statute against a
constitutional challenge. There is no such challenge before us in
this case—just a request that we adopt a narrowing construction.
And we are accordingly in no position to opine on the question of
whether an image like the one at issue here is constitutionally
protected, or whether the statutory definitions in question are
susceptible to an overbreadth challenge or other challenge under
the First Amendment.
C
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Cite as: 2021 UT 37Opinion of the Court
¶49 Jordan’s ineffective assistance of counsel claim fails in
light of the above. To succeed on his claim, Jordan bears the
threshold burden of showing that his trial counsel “fell below an
objective standard of reasonableness” in failing to object to the
prosecutor’s statements in oral argument. Strickland v. Washington,
466 U.S. 668, 688 (1984). Jordan cannot bear that burden where the
prosecutor’s statements were in line with the law and accordingly
unobjectionable.
¶50 The court of appeals rejected Jordan’s ineffective
assistance of counsel claim on this basis. We affirm that decision.
III
¶51 Jordan has not identified a basis for challenging the
State’s invitation for the jury to consider his subjective intention in
creating an image that qualifies as child pornography as a
depiction of child nudity for the purpose of sexual arousal under
Utah Code section 76-5b-103(10)(f). Because the prosecutor did
not misstate the law, Jordan’s trial counsel did not act
unreasonably when he failed to object. We affirm on that basis.
And we remand to the district court for further proceedings
consistent with this opinion and with the opinion of the court of
appeals.
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