State v. Jordan

Summary

The Utah Supreme Court interpreted Utah Code section 76-5b-103(10)(f), holding that a factfinder may consider extrinsic evidence of a producer’s subjective purpose in determining whether a visual depiction of child nudity was made for sexual arousal. The court rejected the defendant’s reliance on precedent concerning possession of child pornography and declined to adopt a narrower construction under constitutional avoidance. It affirmed the Utah Court of Appeals’ rejection of the defendant’s ineffective-assistance claim because an objection to the prosecutor’s closing argument would have been futile.

Holdings

1. A visual depiction of child nudity qualifies as child pornography under Utah Code section 76-5b-103(10)(f) if it was knowingly produced for the purpose of causing sexual arousal, and the factfinder may consider extrinsic evidence of the producer's subjective purpose rather than limiting the inquiry to the four corners of the image.
2. Jordan could not establish ineffective assistance based on counsel's failure to object to the prosecutor's argument because the argument correctly stated the law and an objection would have been futile.
3. The constitutional-avoidance doctrine did not permit a narrowing construction limiting the statutory inquiry to the four corners of the image because the statute was not genuinely susceptible to two plausible constructions after ordinary textual analysis.

Questions Presented

1. Whether Utah Code section 76-5b-103(10)(f) permits a factfinder to consider extrinsic evidence of the producer's subjective purpose in determining whether a visual depiction of child nudity was produced for the purpose of causing sexual arousal.
2. Whether trial counsel provided ineffective assistance by failing to object to the prosecutor's argument that Jordan's subjective sexual purpose in creating Exhibit 21 could establish sexual exploitation of a minor.
3. Whether the constitutional-avoidance doctrine required the court to construe the statute as limiting the inquiry to the four corners of the image.

Disposition

affirmed