State v. Moyer

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 7
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JACK DAVID MOYER,
Defendant and Appellant.
Memorandum Decision
No. 20120190-CA
Filed January 9, 2014
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 071902183
Richard G. Uday, Attorney for Appellant
Sean D. Reyes and Brett J. DelPorto,
Attorneys for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and
MICHELE M. CHRISTIANSEN concurred.1
BENCH, Senior Judge:
¶1 Jack David Moyer was convicted of ten counts of sexual
exploitation of a minor, a second degree felony, based on his
possession of child pornography. See Utah Code Ann. § 76-5a-3
(LexisNexis 2008) (current version at Utah Code Ann. § 76-5b-201
(LexisNexis 2012)). Moyer appeals his convictions, alleging
prosecutorial misconduct and juror bias. We affirm.

State v. Moyer
20120190-CA 2 2014 UT App 7
I. Prosecutorial Misconduct
¶2 Moyer argues that he was denied his right to a fair trial
when the prosecutor made three improper statements in closing
argument. In the first instance, referring to testimony that the file-
sharing program on Moyer’s computer was the enhanced version
of LimeWire rather than the free version, the prosecutor said that
Moyer “bought a version that he wanted to be able to use to get his
child pornography faster.” Moyer objected, arguing that the
testimony did not establish how LimeWire came to be on the
computer. The trial court sustained the objection and admonished
the jury to ignore the statement. The prosecutor also corrected his
statement to limit it to the evidence that had been provided.
¶3 In the second instance, the prosecutor discussed how
possession of child pornography “is not a victimless crime”:
The children who are portrayed in these videos and
that you will read [about] . . . were victimized. But
these videos are a memorialization of the crimes that
were committed against them. The horrible things
that were done to them are forever contained on
videos that are now being traded over the internet by
people like Mr. Moyer.
The prosecutor added that people like himself, his co-counsel, and
the Internet Crimes Against Children task force (ICAC) are
“fighting this” by “trying to catch offenders who do this.” Moyer
objected, arguing that the case was not about the prosecutors’ and
ICAC agents’ work. The trial court sustained the objection and
directed the prosecutor to limit his argument to the evidence.
¶4 In the third instance, the prosecutor returned to the theme
of the impact of child pornography on the victims:
What I want to talk to you about is the victims in
these cases. It’s unusual in a sex case and a sex crime

State v. Moyer
20120190-CA 3 2014 UT App 7
to not have the victim here to testify and to tell you
about what happened to her and how that has
affected her life. And I can tell you that we know
from victims in these cases that these videos and the
sharing of them have devastating effects. And the
victims who have been portrayed in these videos,
who have been victimized, and then videotaped feel
like when these videos are traded and shared and
viewed by people like the Defendant, it’s
revictimizing them. They feel like they can never
have the peace—
Moyer objected, stating that “again, it’s what these victims feel
like.” The trial court sustained the objection and admonished the
prosecutor, “Just limit yourself to the evidence that’s been
provided here and close, please.”
¶5 After the jury was excused, Moyer moved for a mistrial. He
argued that even though the objections had been sustained, the
damage had been done and his Fifth Amendment rights had been
violated because the prosecutor effectively made the trial about
“something other than Jack Moyer.” The trial court denied the
motion.
¶6 “We review rulings on motions for a mistrial based on
prosecutorial misconduct for abuse of discretion.” State v. Reed,
2000 UT 68, ¶ 18, 8 P.3d 1025; accord State v. Cummins, 839 P.2d 848,
852 (Utah Ct. App. 1992) (“[B]ecause the trial court is in the best
position to determine the impact of a statement upon the
proceedings, its rulings on whether the prosecutor’s conduct merits
a mistrial will not be overturned absent an abuse of discretion.”).
Assuming without deciding that the prosecutor’s statements were
improper, we cannot conclude that the trial court exceeded its
discretion in denying the motion for a mistrial.
¶7 A prosecutor’s improper remarks warrant a mistrial only
when “under the circumstances of the particular case, the error is

State v. Moyer
20120190-CA 4 2014 UT App 7
substantial and prejudicial such that there is a reasonable
likelihood that in its absence, there would have been a more
favorable result for the defendant.” State v. Tillman, 750 P.2d 546,
555 (Utah 1987); accord State v. Campos, 2013 UT App 213, ¶ 67, 309
P.3d 1160. In considering “the circumstances of the case as a
whole,” “it is appropriate to look at the evidence of defendant’s
guilt,” State v. Troy, 688 P.2d 483, 486 (Utah 1984), whether the
prosecutor corrects any improper comments, cf. State v. Davis, 2013
UT App 228, ¶ 39, 311 P.3d 538, and any instructions given to the
jury, see State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993); see also
Taylor v. State, 2007 UT 12, ¶ 115, 156 P.3d 739 (“When a court
sustains an objection and gives a curative instruction, a defendant
must show that ‘the [prosecutor’s] comment was so prejudicial as
to defeat the mitigating effect of the court’s . . . curative
instructions.’” (alteration and omission in original) (quoting State
v. Kohl, 2000 UT 35, ¶ 24, 999 P.2d 7)).
¶8 Here, the main issue at trial was identity. Moyer claims that
the only evidence connecting him to the child pornography was
“circumstantial at best” and that conflicting evidence was
presented that others had access to Moyer’s computer. See State v.
Andreason, 718 P.2d 400, 403 (Utah 1986) (per curiam) (“When the
evidence in the record is circumstantial or sufficiently conflicting,
jurors are more likely influenced by an improper argument.”).
¶9 Though circumstantial, the evidence supporting Moyer’s
guilt was strong. According to the testimony of an ICAC
investigator (Investigator), the operating system on Moyer’s
computer was installed on February 6, 2007, with Moyer’s name
entered as the registrant. LimeWire was installed at about the same
time, and the first suspected child pornography file was
downloaded February 7, 2007. Seventy-nine images of suspected
child pornography were downloaded to Moyer’s computer
between February 7, 2007, and March 14, 2007, the day the

State v. Moyer
2. The bulk of these images, including the initial download on
February 7, 2007, represented uncharged 404(b) evidence admitted
over Moyer’s objection. See generally Utah R. Evid. 404(b).
3. The files accessed on March 14, 2007, represented additional
uncharged 404(b) evidence.
20120190-CA 5 2014 UT App 7
computer was seized. When Investigator and another ICAC agent2
(Agent) came to Moyer’s house on March 14 to investigate illegal
activity that Agent had observed on Moyer’s IP address, Moyer
told him that “he was the responsible person for the LimeWire
activity on the computer.” Investigator testified that about eighty
percent of the files in the LimeWire shared folder were associated
with child pornography.
¶10 The forensic evidence of Moyer’s computer activity on the
day the computer was seized is also strongly corroborative of
Moyer’s identity. According to Investigator, someone logged in to
Moyer’s computer at 3:18 p.m. on March 14. The user logged in to
MySpace at 3:19 p.m., and the MySpace profile displayed the
words “Hello Jack.” The user opened LimeWire at 3:23 p.m. and at
3:24 p.m. opened a text file that contained a story describing sexual
acts involving minors. At 3:25 p.m., the user began to chat with
people on Yahoo! Messenger, with a username that appeared to be
associated with Moyer. From 3:59 p.m. to 4:02 p.m., the user
opened a website associated with Moyer’s employer and accessed
Moyer’s work schedule, timecard, and payroll information. The
user resumed activity at 6:44 p.m., using Yahoo! Messenger
intermittently until 7:24 p.m. At 7:37 p.m., 7:41 p.m., and 7:42 p.m.,
the user accessed three files containing stories describing sexual
acts involving minors. Then at 7:44 p.m., the user attempted to
open, from the incomplete download folder, a video with a title
suggestive of child pornography.3
¶11 Agent testified that he and Investigator came to Moyer’s
house at “about 7:30 in the evening” on March 14 to conduct a
“knock-and-talk.” Moyer answered the door, and after talking on

State v. Moyer
20120190-CA 6 2014 UT App 7
the porch for “[m]aybe a little less” than ten to fifteen minutes,
Moyer invited them in to see his computer. Agent and Investigator
seized Moyer’s computer, unplugging it at 7:58 p.m.—fourteen
minutes after a user had attempted to open the video of suspected
child pornography. Agent testified that no one else was present in
the house at the time, though Moyer presented evidence to the
contrary.
¶12 Moyer argues that he adduced evidence at trial showing that
others had access to his computer. Moyer’s sister testified that
several people lived at the house, including one friend (Friend)
who lived there “for months.” Moyer’s sister testified that she saw
Friend use Moyer’s computer, typically at night while Moyer was
at work, but that she could not see what Friend was doing on the
computer. In rebuttal, the prosecutor called Friend to testify. Friend
stated that he lived at the house for two or three weeks “[t]ops”
and that he never used Moyer’s computer. The prosecutor also had
the records clerk for the county jail testify. She testified that Friend
was incarcerated from February 20, 2007, to April 10, 2007, which
covered the bulk of the period during which child pornography
files were downloaded and accessed (February 7, 2007, through
March 14, 2007).
¶13 Despite the evidence presented at trial that others had access
to Moyer’s computer, the circumstantial evidence discussed above
strongly ties Moyer to the possession of child pornography. Use of
Moyer’s employment, MySpace, and Yahoo! Messenger accounts
within minutes of accessing child pornography files strongly
supports the jury’s apparent inference that Moyer accessed the
files. Furthermore, given Moyer’s admission that he was
responsible for the LimeWire activity on the computer and
Investigator’s testimony that the LimeWire program on Moyer’s
computer was predominantly used to download child
pornography, it is unlikely that another user was responsible for
downloading child pornography without Moyer’s knowledge.

State v. Moyer
4. When a claim such as prosecutorial misconduct is preserved, we
engage in a harmless error analysis only if we first conclude that
the trial court exceeded its discretion in its application of the law to
the facts of the case. See State v. Marks, 2011 UT App 262, ¶ 11, 262
P.3d 13; State v. Chavez, 2002 UT App 9, ¶ 17, 41 P.3d 1137. Because
(continued...)
20120190-CA 7 2014 UT App 7
¶14 Not only was the evidence of Moyer’s guilt strong, but
under the circumstances of this case, the trial court’s instructions
cured any negative effects from the prosecutor’s statements.
Following the prosecutor’s first statement about LimeWire, the trial
court instructed the jury to ignore the comment and the prosecutor
corrected himself. The trial court also instructed the jury in its
general instructions that “[w]hat the lawyers say is not evidence”
and that the jury’s verdict “must be based only on the evidence
produced here in court.” The instructions further stated,
Your duty is to decide this case and this case alone.
You should not use this case as a forum for
correcting perceived wrongs in other cases, or as a
means of expressing individual or collective views
about anything other than the guilt or innocence of
this defendant. Your verdict should reflect the facts
as found by you applied to the law as explained in
these instructions and should not be distorted by any
outside factors or objectives.
These instructions would have mitigated any tendency of the
prosecutor’s statements to turn the jurors’ attention to broader
societal concerns and away from the evidence. See State v. Wright,
2013 UT App 142, ¶ 42, 304 P.3d 887 (“In the absence of any
circumstances suggesting otherwise, courts presume that the jury
follows such instructions.”). Under the circumstances of this case,
the trial court acted well within its discretion in concluding that
there was no reasonable likelihood of a different result in the
absence of the prosecutor’s statements to the jury. See State v. Reed,
2000 UT 68, ¶ 18, 8 P.3d 1025.4

State v. Moyer
4. (...continued)
we conclude that the trial court’s denial of Moyer’s motion for a
mistrial did not constitute an abuse of discretion, we need not
resolve the unsettled issue of what standard of harmless error
applies to claims of prosecutorial misconduct. See State v. Davis,
2013 UT App 228, ¶¶ 9–12, 311 P.3d 538 (noting unsettled state of
Utah law); State v. Wright, 2013 UT App 142, ¶ 41 n.6, 304 P.3d 887
(same); State v. Cox, 2012 UT App 234, ¶ 15 n.2, 286 P.3d 15 (Voros,
J., concurring in part and concurring in the result in part) (same).
20120190-CA 8 2014 UT App 7
II. Juror Bias
¶15 Next, Moyer contends that he is entitled to a new trial
because of juror bias. After he was convicted and sentenced, Moyer
filed a motion for a new trial alleging that after trial, he recognized
one of the jurors (Juror 11) and believed that she was biased against
him.
¶16 In an affidavit accompanying his motion for a new trial,
Moyer stated that Juror 11’s family had lived near Moyer’s family
“approximately thirty years ago.” He stated that he had had an
affair with Juror 11’s brother’s wife and that Moyer’s brother
(Brother) had had “an intimate relationship” with Juror 11. Moyer
stated that he did not recognize Juror 11 during trial because her
appearance and name had changed since he knew her, but that the
relationship between Moyer and Juror 11 “is very negative.” And
Moyer said, “I have no doubt that she would not forget me because
my name has not changed since we knew each other.” Moyer
further stated, “The nature of her negative feelings for me is such
that it would not have passed no matter how many years have
passed.” Moyer also presented an affidavit from Brother, stating
that Moyer’s affair led to the dissolution of Juror 11’s brother’s
marriage, that the “intimate relationship” Brother had with Juror
11 was “several years ago” but lasted “many years.” Brother
concluded, “The nature of her negative feelings for me and my
family is such that it would not have passed no matter how many
years have passed.”

State v. Moyer
20120190-CA 9 2014 UT App 7
¶17 In response, the State submitted an affidavit from Juror 11.
Juror 11 stated, “I do not know Jack Moyer. During the trial, I did
not recognize Jack Moyer, nor was his name familiar to me. I don’t
remember meeting or knowing anyone named Jack Moyer.” Juror
11 stated that her younger brother had had a friend with the same
name as Brother and that she remembered that friend as having a
stepbrother named Jackson Martindale, but she did not know
whether Jack Moyer and Jackson Martindale were the same person.
She stated that she had never had an intimate relationship with
Brother and estimated that Brother would have been about eight or
nine years old when she got married thirty-nine years ago. She
declared that she had no knowledge of someone named Jack
Moyer having an affair with her brother’s ex-wife. She concluded,
“I never had any issues with or hard feelings towards [Brother]. I
don’t know Jack Moyer.”
¶18 The trial court examined the competing affidavits and
concluded that portions of Moyer’s affidavit were not based on
personal knowledge or information and lacked foundation. The
court concluded, “It is readily apparent that Mr. Moyer has no
actual knowledge of Juror [11], nor her of him.” The court denied
the motion.
¶19 We review “post-trial challenges to a juror based on the
juror’s alleged misstatements or omissions during voir dire” under
the two-pronged test set forth in McDonough Power Equipment, Inc.
v. Greenwood, 464 U.S. 548 (1984). West v. Holley, 2004 UT 97, ¶ 11,
103 P.3d 708; see also State v. Thomas, 830 P.2d 243, 245 (Utah 1992)
(adopting the McDonough test). “The McDonough test mandates a
new trial if the moving party demonstrates that (1) ‘a juror failed
to answer honestly a material question on voir dire,’ and (2) ‘a
correct response would have provided a valid basis for a challenge
for cause.’” Thomas, 830 P.2d at 245 (quoting McDonough, 464 U.S.
at 556). “Under the first prong of the McDonough test, ‘the trial
court’s finding that [a] juror[] . . . did not answer a material
question dishonestly on voir dire is a question of fact, which we
review under a clearly erroneous standard.’” State v. Millett, 2012

State v. Moyer
5. To the extent Moyer raises a challenge to Juror 11 based on other
alleged bases for bias, that challenge is inadequately briefed and we
do not address it further. See State v. Thomas, 961 P.2d 299, 305
(Utah 1998) (stating that an appellate court need not decide an
(continued...)
20120190-CA 10 2014 UT App 7
UT App 31, ¶ 15, 271 P.3d 178 (alterations and omission in original)
(quoting Thomas, 830 P.2d at 245). “We will set aside a [trial] court’s
factual finding as clearly erroneous only if it is ‘against the clear
weight of the evidence, or if [we] otherwise reach[] a definite and
firm conviction that a mistake has been made.’” Brown v. State, 2013
UT 42, ¶ 37, 308 P.3d 486 (second and third alterations in original)
(quoting State v. Walker, 743 P.2d 191, 193 (Utah 1987)).
¶20 Moyer has not identified a material question that Juror 11
allegedly answered dishonestly or inaccurately. “A juror clearly
cannot fail to answer honestly a material question if the juror was
not asked a question regarding the subject matter alleged to have
gone undisclosed.” Thomas, 830 P.2d at 246. Although we review a
juror’s disclosure or non-disclosure “in light of the entirety of the
voir dire,” Millett, 2012 UT App 31, ¶ 27, the appellant has the
burden to demonstrate that the juror was asked “questions which
should have made [the juror] aware of the need to bring the [issue]
to the court’s attention,” see Thomas, 830 P.2d at 246; see also State v.
Robison, 2006 UT 65, ¶ 21, 147 P.3d 448 (“An appellant must do the
heavy lifting because the law otherwise presumes that all was well
below.”).
¶21 Furthermore, Moyer has not shown clear error in the trial
court’s finding that Juror 11 did not know Moyer. He merely
recounts the statements in the competing affidavits and then
concludes that “the trial court incorrectly decided the question.”
Moyer has done nothing more to demonstrate that the trial court’s
finding is against the clear weight of the evidence. Therefore, we
will not reverse the trial court’s ruling on Moyer’s motion for a new
trial. See Brown, 2013 UT 42, ¶ 37.5

State v. Moyer
5. (...continued)
issue “when the overall analysis of the issue is so lacking as to shift
the burden of research and argument to the reviewing court”).
20120190-CA 11 2014 UT App 7
¶22 As a subset of his claim of juror bias, Moyer asserts that his
trial counsel was ineffective for not requesting an evidentiary
hearing on his motion for new trial. To demonstrate ineffective
assistance of counsel, Moyer must show “that counsel’s
performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). The trial court carefully considered the competing assertions
in the affidavits submitted below and identified several weaknesses
in Moyer’s affidavit. On appeal, Moyer reasserts the statements in
the affidavits. But he points to no record evidence to demonstrate
that the trial court likely would have reached a different conclusion
had a hearing been held. Nor does he request a 23B remand to
establish a record demonstrating prejudice. See generally Utah R.
App. P. 23B; State v. Litherland, 2000 UT 76, ¶¶ 16–17, 12 P.3d 92
(“Where trial counsel’s alleged ineffectiveness caused or
exacerbated record deficiencies, . . . defendant bears the primary
obligation and burden of moving for a temporary remand.”).
Moyer therefore cannot demonstrate a reasonable probability of a
more favorable result had a hearing been held, and his claim of
ineffective assistance fails.
¶23 In sum, the trial court did not exceed its discretion in
denying Moyer’s motion for a mistrial. Furthermore, Moyer has
not demonstrated clear error in the trial court’s findings supporting
its denial of his motion for a new trial, nor has he demonstrated
that he was prejudiced by his trial counsel’s failure to request an
evidentiary hearing on that motion.
¶24 Affirmed.