State v. Qayum

2025 UT App 178

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
QASIM ABDUL QAYUM,
Appellant.

Opinion
No. 20240207-CA
Filed December 11, 2025

Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 191904728

Nathalie S. Skibine, Attorney for Appellant
Derek E. Brown and Emily Sopp,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 Qasim Abdul Qayum began chatting on a dating app with
a person who told Qayum that she was a thirteen-year-old girl.
The two planned to meet to have sex, but the person turned out
to be an undercover police officer, and Qayum was arrested when
he arrived at the meet-up location. A jury later convicted Qayum
of enticing a minor. Qayum now challenges his conviction,
arguing that his counsel rendered constitutionally ineffective
assistance and that the district court erred in denying two motions
to dismiss the case and one motion to suppress evidence. We
reject Qayum’s arguments and affirm his conviction.
State v. Qayum

BACKGROUND 1

¶2 In February 2019, while conducting an internet sting
operation, an undercover police officer (Agent) created a profile
for a persona named “Mae” on an online dating app. Agent listed
“18” as Mae’s age on the profile, and for Mae’s photos, Agent
contacted a modeling agency and asked for pictures of an adult
female model who “look[ed] really young.” A model (Model)
took photos of herself and provided them to Agent, who then
used them for Mae’s profile and app messages.

¶3 Mae’s profile caught Qayum’s attention. Qayum first
messaged Mae using the app, leading to the following exchange,
which took place over the course of a few days:

Qayum: Wyd[2] beautiful
Qayum: Wanna make [moneybags emojis]
Mae: How so
Qayum: You would have to do something would you do
that?
Mae: Maybe what did u have in mind
Qayum: Cuddling, making out, maybe sex
Mae: Yea
Mae: I’m down
Qayum: When are you free?

1. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Kufrin,
2024 UT App 86, n.1, 551 P.3d 416 (cleaned up).

2 “Wyd” is a vernacular abbreviation for “What are you doing?”
See Garcia v. State, No. 05-22-00526-CR, 2023 WL 4731296, at *7
(Tex. App. July 25, 2023).

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State v. Qayum

¶4 About a week later, Mae resumed the conversation, and
she and Qayum discussed the amount of money Qayum would
pay. She initially asked for $500; Qayum countered with $400 and
asked if that was “ok,” which triggered the following exchange:

Mae: Yea you ok if I’m younger
Qayum: If you’re 18 I won’t have a problem
Qayum: How old are you?
Mae: Well…….
Mae: I’m not
Qayum: Well how old are you [right now]?
Mae: 13
Qayum: Oh dam you’re very young we can do it but we
have to be very careful.

¶5 The conversation continued. Qayum asked Mae to send
photos, and she sent various photos of herself wearing clothes.
After that, the conversation turned sexual in nature. Qayum asked
Mae if she had “ever done it before,” meaning “[m]aking out,
cuddling, sex.” Mae replied, “Yea . . . [a] couple times.” At one
point in the conversation, Mae told Qayum that if she got
pregnant, her “dad would kill [her].” Qayum replied, “No worries
I’ll pull it out at the end.”

¶6 The two then planned to meet at a hotel. Qayum told Mae
to bring a swimsuit and to “dress up [and] look sexy.” Qayum—
who apparently liked the fact that the profile picture showed that
Mae had long hair—asked Mae multiple times for more photos of
her “long hair above the booty.” When she sent them, he replied,
“Omg I have lost my consciousness you’re so hot and sexyyyy,
your long hair and ass on fire [fire emoji] can’t wait to meet this
gorgeous girl [heart emojis].” During the week before the planned
meetup, Qayum asked Mae if she was “ready” and if she had
“ever met a guy who [was] over 18.” Mae told him that she had.

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State v. Qayum

¶7 On the day of the meet-up, Qayum asked if they could
meet at Mae’s apartment instead of a hotel, and Mae agreed.
Qayum asked if Mae would “be home alone.” Mae responded,
“Yea I’m going to leave after this class,” which she later clarified
was “[PE] and math.” Qayum asked for the address of Mae’s
apartment complex, and she provided an address. Mae then
asked Qayum to bring her a burger from a specific fast-food
restaurant, and Qayum said he would do so. A few minutes later,
Qayum messaged Mae that he was close to her apartment and
asked her to “[d]elete all of [his] old messages.” He said he would
do the same because “[i]t’s safe for [them].”

¶8 Qayum arrived at the apartment complex with $140 cash
and a bag containing food from the specified fast-food restaurant.
Officers arrested him and transported him to the police station.

¶9 At the station, an officer (Officer) informed Qayum of his
Miranda rights and ended the recitation by asking, “Do you
understand everything?” Qayum nodded. Officer then asked,
“Can you tell me so?,” and Qayum replied, “I have to tell my
attorney to talk to you . . . to answer my questions.” 3 Officer said,
“So, you understand all that?,” and Qayum answered, “Yeah.”

¶10 Officer then proceeded to question Qayum, and she asked,
“So, why do you think we’re here today?” Qayum answered that

3. There are several renditions of this sentence in the record, some
with subtle differences. In some parts of his briefing, Qayum
describes the quotation in question as including the word “wait”
at the beginning of the sentence. However, after an evidentiary
hearing on Qayum’s motion to suppress, the district court
phrased the quote as follows: “I have to tell my attorney to talk to
you . . . to answer my questions.” Based on our own review of the
video recording of Qayum’s interview, which is also part of the
record submitted to us, this is a fair interpretation of what Qayum
said. The word “wait” is neither in the transcript nor in the district
court’s findings, nor is it apparent to us from our own review of
the video that Qayum used this word when he made the
statement quoted above.

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State v. Qayum

he had “made a mistake,” that he “[j]ust lost [his] conscience,” and
that he had done “something stupid.” Officer told Qayum that
Mae’s “parents found her phone” and got the police involved.
Qayum explained that he met Mae on a dating app and that her
age showed “18.” Officer then asked if he and Mae had “talk[ed]
about how old she was” during their conversation, and Qayum
answered, “She was 13 . . . . I was shocked.” Qayum admitted that
when he found out that Mae was thirteen, he told her that they
had to be “careful.” And Qayum admitted that he talked about
having sex with Mae and offered to pay her $400. Qayum also
stated, “[Mae] was expecting to have sex, so I was—that’s what I
was expecting, to have sex, but I would’ve—I just came to hang
out with her.” 4 By the end of the interview, he admitted that if
Mae had wanted to have sex, it “[c]ould have happened.” Officer
asked Qayum if he wanted to write a letter “to [Mae] and her
family,” and he agreed to do so. In that note, Qayum wrote that
he was “really sorry” and that he could “understand the pain and
feeling that [the parents] have for [their] daughter.”

¶11 Later, the State charged Qayum with one count of enticing
a minor, a second-degree felony.

¶12 During discovery, Qayum requested, among other things,
a “full and complete digital copy” of Mae’s online profile,
including “any photos, images, text, or other information
contained in” that profile. Qayum also requested “copies of any
and all photos . . . posted, sent, or otherwise communicated or
used in connection with” Mae’s profile in Qayum’s case. Qayum
further requested the identity and contact information of Model,
the individual depicted in the photographs.

¶13 The State provided Qayum with screenshots of the chat
conversation between Qayum and Mae and a screen recording of

4. The version of this sentence we quote here is slightly different
from the version contained in the written transcript of the
interview. Our review of the video recording of the interview
reveals that the sentence as we quote it here is a more accurate
representation of what Qayum said.

20240207-CA 5 2025 UT App 178
State v. Qayum

the same, but the State did not provide a digital copy of the profile
with the metadata. The State responded that a “screen shot of”
Mae’s profile did “not exist,” that there “was one photo” of Model
“in a white t-shirt,” and that no other photos were placed on
Mae’s profile. The State also responded to the request for photos,
as follows: “The photos are [e]mbedded in the video of the
undercover chat. The pictures used by [Agent] are the only copies
available. The metadata associated with the photos are deleted to
protect [Model] and the origination of the photo when used in the
undercover chats.” Regarding the request for Model’s contact
information, the State responded that it would not provide that
information because it considered Model to be “a protected
confidential informant.”

¶14 Before trial, Qayum filed three motions to dismiss. First,
after the State designated Model as a confidential informant
pursuant to rule 505 of the Utah Rules of Evidence and refused to
disclose Model’s identity or contact information, Qayum moved
to dismiss the case, asserting that Model’s testimony was needed
to discern her “true age,” to determine “when and where the
photographs were taken,” to reveal the “instructions” the police
gave her, as well as to authenticate the photos, among other
things. The district court denied the motion and ruled that “there
[was] no reasonable probability that [Model] [could] give
testimony necessary to a fair determination” of Qayum’s guilt or
innocence. The court found that Model’s testimony was not
relevant to Qayum’s mental state nor was it relevant to his
entrapment defense. The court explained that “[t]he true age of
[Model] or how the photograph was made . . . are irrelevant to
[Qayum’s] actual belief as to the age of the person” he was
communicating with.

¶15 Second, Qayum moved to dismiss the case under State v.
Tiedemann, 2007 UT 49, 162 P.3d 1106, claiming that the State had
destroyed exculpatory evidence when it failed to preserve the
entirety of Mae’s online profile, including the full-size versions of
the profile photo and other photos sent in the chat, as well as the
chat metadata. At the hearing on this motion, the court asked
whether it was “speculative” what the “supposed evidence

20240207-CA 6 2025 UT App 178
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included and how it might possibly have been exculpatory.”
Qayum responded that a “photograph of an adult . . . would lead
an ordinary person to believe that they were communicating with
an adult,” that a “representation that the person is over the age of
18 would lead an ordinary person to believe they were
communicating with someone over the age of 18,” and that,
together, “[t]hose two facts are exculpatory.” The State conceded
that it did not have the original full-size photos but explained that
some of the photos, including the profile photo, could be seen in
thumbnail size in the screen recording of the chat. And the State
also conceded that “for all photos that were sent, the person
photographed was at least 18 years of age.”

¶16 In an oral ruling, the court denied Qayum’s Tiedemann
motion. The court found that “[t]he State did preserve and ha[d]
produced a video screen grab or recording of the communications
between [Qayum] and [Agent], and with respect to the profile, the
State [did] not dispute that the woman in the profile photograph
was over 18.” The court also determined that, “given the other
evidence that exists, including the video of the chats and
[Qayum’s] interview with law enforcement, the argument that the
actual profile or a forensic copy of the communications with
metadata is exculpatory is little more than speculation,” and the
court indicated that it was “not persuaded that the absence of this
evidence would undermine confidence in the outcome of any trial
in this case.” The court offered its view that the profile photo was
reproduced in the video and that the chat “include[d] at least
some date and time stamps.” Thus, the court concluded that
Qayum had “failed to demonstrate a reasonable probability that
the lost evidence . . . would have been exculpatory.”

¶17 Qayum’s third motion to dismiss was short-lived. In that
motion, he argued that the case should be dismissed because, in
his view, the State had entrapped him as a matter of law. At the
hearing on this motion, Qayum argued that he had been
entrapped because he messaged a person who he thought was an
adult, on an adult dating app, and that his offer of sex was made
to an assumed adult, before Mae had indicated that she was
thirteen. Qayum requested an evidentiary hearing to question

20240207-CA 7 2025 UT App 178
State v. Qayum

Agent about the chat transcript, ask whether Agent or Qayum had
reengaged communication in the chat after their initial exchange,
and ask if any messages were missing from the transcript. The
court explained that it was “very skeptical that, under any
circumstances, . . . reengagement could amount to entrapment
justifying dismissal.” But the court nevertheless scheduled the
requested evidentiary hearing. Qayum’s attorney (Counsel)
asked for time to discuss the court’s ruling with Qayum and
decide what “direction” to go from there. Counsel later emailed
the court asking it to “strike the evidentiary hearing” because
“there [was] not a need for the court to hear evidence of
entrapment.” And Counsel did not renew a motion to dismiss the
case based on entrapment as a matter of law. At trial, however,
Counsel argued to the jury that Qayum had been entrapped, and
the jury was given an instruction on entrapment.

¶18 In addition to his three motions to dismiss, Qayum filed a
motion to suppress the statements he made during his police-
station interview, arguing that Officer had violated his Miranda
rights by allowing the interview to proceed after Qayum invoked
the right to counsel. Qayum centered his argument on his
statement, “I have to tell my attorney to talk to you . . . to answer
my questions.” Qayum claimed that this statement constituted an
invocation of his right to counsel, and he asserted that Officer
ignored this invocation. The court held an evidentiary hearing,
and the State presented a video recording of Qayum’s interview
wherein Qayum could be seen nodding along as he was given his
Miranda rights, as well as his affirmative answer that he
understood his rights. Agent, who was in the room with Qayum
as he was interviewed, testified that Qayum had been “advised of
Miranda” before he was asked any questions. Agent explained
that after Qayum was read his rights, Officer asked Qayum to
“explain his rights back” to Officer “to make sure that he
understood” them, and that Qayum “seemed very understanding
of his rights.” Agent also testified that although he “could tell that
English was not [Qayum’s] first language,” “all of [their]
conversation was done in English, and it appeared as though
[Qayum] was understanding exactly what [Agent] was saying.”

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State v. Qayum

¶19 At oral argument on the motion to suppress, Qayum also
argued that the State never obtained a valid waiver of Qayum’s
right against self-incrimination. Counsel explained, “We have to
look first to whether there is a valid waiver. I don’t see anything
in the record that can be construed as a waiver of those rights.”
And later, Counsel argued that Officer “never [got] the waiver”
and that it was “the police[’s] responsibility to provide [the
Miranda] warnings and then to obtain a valid waiver of the rights
before proceeding with the interrogation.”

¶20 The district court denied the motion to suppress and found
that, “in context and based on [Agent’s] testimony,” Qayum’s
“statement about telling his attorney to talk to them was
confirming to [Officer] that he understood that he has a right to
[an] attorney who can answer any questions he may have.” The
court found that Qayum’s statement “certainly was not an
unequivocal invocation of his right to counsel.” The court also
found that Qayum “never expressed confusion about his Miranda
rights, never asked any questions about those rights, and never
asked for a break or for time to think” about those rights.
“Instead,” the court explained, Qayum “indicated that he
understood the rights and then proceeded to answer [Officer’s]
questions.” Thus, the court concluded, “[b]y failing to invoke his
rights unambiguously and by proceeding to answer [Officer’s]
questions without hesitation, [Qayum] did not invoke his right to
counsel, [Officer was] permitted to proceed with . . . questioning,
and there is no basis on which to suppress [Qayum’s] statements.”

¶21 Eventually, the case proceeded to trial. In support of its
case, the State called Agent and Officer as witnesses, and they
testified as to the events described above. The State also
presented, among other things, the screen recording and
screenshots of the chat conversation between Qayum and Mae.
And the State played for the jury video excerpts from Qayum’s
police-station interview.

¶22 During Agent’s testimony, he explained that when texting
with Qayum, he intentionally worked into the conversation
statements about “school,” “boys,” and Mae’s dad potentially

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State v. Qayum

“kill[ing]” her if she got pregnant, and that he did so to make clear
to Qayum that he was chatting with a minor and to eliminate any
“confusion” about her age. Agent also testified that he gave
Qayum multiple “opportunit[ies]” to back out of the endeavor.

¶23 After the State rested, Counsel moved for a directed verdict
“on the grounds that [the State had] not met all the elements” and
had not “put on sufficient evidence” that Qayum believed that
Mae was a minor. The court denied the motion and found there
was “sufficient circumstantial evidence from which a reasonable
person could infer that [Qayum] believed that the person he was
talking with was a young girl.”

¶24 Qayum did not call witnesses of his own, and he did not
testify in his own defense. In closing argument, Counsel argued
that Qayum had been entrapped and was “not ready to commit
the offense” without police encouragement. Counsel also argued
that the State had not met its burden to obtain a conviction
because Qayum did not believe that the person he was chatting
with was actually a minor.

¶25 After deliberation, the jury convicted Qayum of enticing a
minor. Later, the court sentenced Qayum to prison, but it
suspended that sentence and placed Qayum on probation, with
conditions, including a jail term.

ISSUES AND STANDARDS OF REVIEW

¶26 Qayum now appeals his conviction, and he presents four
issues for our review. First, he argues that Counsel rendered
constitutionally ineffective assistance by not renewing the motion
to dismiss (or by not moving for a directed verdict) regarding
entrapment. Relatedly, he also argues that the district court
plainly erred by not dismissing the case on the basis of
entrapment as a matter of law. Both ineffective assistance and
plain error claims present issues that we decide in the first
instance, as a matter of law. See State v. Dew, 2025 UT App 22, ¶ 28,
566 P.3d 53, cert. denied, 568 P.3d 264 (Utah 2025).

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State v. Qayum

¶27 Second, Qayum challenges the district court’s order
denying his Tiedemann motion to dismiss. “Whether the State’s
destruction of potentially exculpatory evidence violates due
process is a question of law that we review for correctness, though
we incorporate a clearly erroneous standard for the necessary
subsidiary factual determinations.” State v. DeJesus, 2017 UT 22,
¶ 18, 395 P.3d 111 (cleaned up).

¶28 Third, Qayum challenges the district court’s order denying
his motion to dismiss regarding the informant privilege set forth
in rule 505 of the Utah Rules of Evidence. “We must decide
whether the district court applied the correct legal standard when
it found that rule 505 did not require it to dismiss the charges
against [the defendant]. We review the district court’s decision de
novo, according no deference to its legal determination.” Nielsen
v. State, 2016 UT 52, ¶ 9, 391 P.3d 166 (cleaned up).

¶29 Finally, Qayum challenges the district court’s order
denying his motion to suppress the statements he made in his
police-station interview. “We review a district court’s ruling on a
motion to suppress for correctness, and we review its factual
findings in support of its ruling for clear error.” State v. Garcia-
Flores, 2021 UT App 97, ¶ 10, 497 P.3d 847 (cleaned up). In
particular, where, as here, a district court “bases its ultimate
conclusions concerning the waiver of a defendant’s Miranda rights
upon essentially undisputed facts, in particular the transcript of
an officer’s colloquy with the defendant, its conclusions present
questions of law which we review under a correction of error
standard.” Id. (cleaned up).

ANALYSIS

I. Entrapment as a Matter of Law

¶30 Qayum first asserts that Counsel rendered ineffective
assistance by not again moving to dismiss, or for a directed
verdict, on the entrapment issue. Alternatively, Qayum argues

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that the district court plainly erred by not sua sponte dismissing
the case on that basis. We disagree with Qayum’s contentions.

¶31 “Entrapment occurs when a peace officer or a person
directed by or acting in cooperation with the officer induces the
commission of an offense in order to obtain evidence of the
commission for prosecution by methods creating a substantial
risk that the offense would be committed by one not otherwise
ready to commit it.” Utah Code § 76-2-303(1). But “[c]onduct
merely affording a person an opportunity to commit an offense
does not constitute entrapment.” Id. If a court concludes, as a
matter of law, “that the defendant was entrapped, it shall dismiss
the case with prejudice.” Id. § 76-2-303(5).

¶32 Entrapment “is a highly fact-intensive” inquiry. State v.
Torres, 2000 UT 100, ¶ 8, 16 P.3d 1242 (cleaned up). Indeed, “the
transactions leading up to the offense, the interaction between the
agent and the defendant, and the response to the inducements of
the agent, are all to be considered in judging what the effect of the
governmental agent’s conduct would be on a normal person.”
State v. Dickerson, 2022 UT App 56, ¶ 36, 511 P.3d 1191 (cleaned
up). “If there is a reasonable basis in the evidence upon which
jurors could find beyond a reasonable doubt that the crime was a
result of the defendant’s own voluntary desire and intent to
commit the crime, the defendant has not established entrapment
as a matter of law.” Id. ¶ 30 (cleaned up). “Only when reasonable
minds could not differ can the court find entrapment as a matter
of law.” Id. ¶ 21 (cleaned up). “If reasonable minds could differ on
whether or not entrapment occurred, the court must deny the
motion and allow the issue of entrapment to go to the jury.” Id.
(cleaned up).

¶33 Against this backdrop, we must assess whether Counsel
provided ineffective assistance by opting not to either renew the
motion to dismiss or move for a directed verdict based on
entrapment as a matter of law. Under the test established by
Strickland v. Washington, Qayum must make a two-part showing:
(1) that Counsel’s performance “fell below an objective standard
of reasonableness” and (2) that this deficient performance

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“prejudiced the defense” such that “there is a reasonable
probability that, but for [C]ounsel’s unprofessional errors, the
result of the proceeding would have been different.” 466 U.S. 668,
687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d
350; State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. Failure to prove
either component is fatal; “[u]nless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result
unreliable.” Strickland, 466 U.S. at 687. Thus, “if either
[component] is lacking, the claim fails and this court need not
address the other.” State v. Kufrin, 2024 UT App 86, ¶ 55, 551 P.3d
416 (cleaned up).

¶34 Here, we cannot fault Counsel for not re-raising the issue
of entrapment as a matter of law because any motion along those
lines would have been futile on the facts of this case.

¶35 We have generally found entrapment as a matter of law in
“two types of cases.” Dickerson, 2022 UT App 56, ¶ 37. The first
involves “improper police conduct in which the government
agent applied persistent pressure or persistently pursued the
defendant to commit the crime.” Id. (cleaned up). The second
involves “appeals based on sympathy, pity, or close personal
friendships, or offers of inordinate sums of money.” Id. (cleaned
up). None of these specific methods were employed by the State
here, and regardless of whether Agent’s actions fit into either of
these two categories of cases, his actions did not constitute
entrapment as a matter of law. 5

¶36 Qayum was not subjected to persistent pressure or
requests, and Agent did not harass Qayum. Nor did Agent

5. Qayum correctly points out that these categories of entrapment
cases are not exhaustive and that it is possible for entrapment to
“occur in a situation outside” of the two recognized categories.
State v. Smith, 2024 UT 13, ¶ 38 n.63, 548 P.3d 874. But regardless
of whether Agent’s actions fall within or outside of the two
recognized categories, his actions did not constitute entrapment
as a matter of law on the facts of this case. See infra ¶¶ 40–42.

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develop a personal relationship with Qayum that Agent then
exploited. Instead, after Qayum contacted the Mae persona,
Agent gave Qayum a clear opportunity to disengage by telling
Qayum that “she”—Mae—was thirteen years old and by
following that statement with various indications that Mae was
still in school and living at home with her father. Agent testified
that he included statements about “school,” and “boys,” and her
dad “kill[ing]” her if she got pregnant to convey to Qayum that
he was chatting with a minor, so that there would be no
“confusion” about her age. Agent further testified that these
statements gave Qayum the “opportunity” to back out. But
Qayum did not take the opportunity: his response to Mae’s claim
that she was thirteen was that they needed to be “careful,” and his
response to Mae’s fear that her dad would “kill” her if she got
“pregnant” was that he would “pull it out at the end.” He also
told her to delete their text messages from her phone.

¶37 Agent’s actions are similar to those of the special agent in
Dickerson, where we reversed the district court’s conclusion that
the defendant had been entrapped as a matter of law. See 2022 UT
App 56, ¶ 47. There, a special agent used “an online persona he
had created to pose as a thirteen-year-old girl” with the age
“eighteen” listed on the profile and an unaltered “closeup, selfie-
type picture” of a female police officer “who was in her twenties”
for the profile photo. Id. ¶¶ 2–3. The defendant made first contact,
and shortly after, “Kailey” told the defendant that she was in
middle school and thirteen years old. Id. ¶ 4. Undeterred, the
defendant continued the conversation, which became sexual in
nature, and the defendant assured Kailey that if they engaged in
sexual activity, he would wear a condom and she would not
become pregnant. Id. ¶¶ 4–7. The two arranged to meet, and upon
arrival at the predetermined location, the defendant was
apprehended by law enforcement and later charged with enticing
a minor, among other charges. Id. ¶¶ 8–10.

¶38 The defendant moved to dismiss, arguing that he was
entrapped as a matter of law, and the district court agreed. Id.
¶¶ 10–11. The court centered its ruling on “the compounding
impact of three decisions” by the special agent: “adult-certify[ing]

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Kailey on the dating app,” “post[ing] a picture of an adult woman
on Kailey’s dating app profile,” and “direct[ing] the text
messaging toward overtly sexual topics.” Id. ¶ 12 (cleaned up).
The court found it “significant that the agent certified that his
online persona was 18 years of age or older and posted the picture
of an adult woman on the profile, [who] . . . appeared to be at least
18 years of age, if not older.” Id. ¶ 49 (cleaned up). Given these
facts, the court concluded that a “reasonable person in [the
defendant’s] circumstances could justifiably conclude that he was
chatting not with a child but with an adult woman who was
pretending to be a minor and a sexual innocent.” Id. (cleaned up).

¶39 We reversed. Id. ¶ 58. Among other reasons for rejecting
the defendant’s argument, we concluded that “the fact that the
agent initially presented the undercover persona as an adult does
not establish entrapment as a matter of law.” Id. ¶ 51. We focused
on the text conversation and explained that when Kailey told the
defendant that she was in middle school and thirteen years old,
the defendant asked, “[Why] it say 18 baby,” to which Kailey
replied, “I’m serious. I’m 13.” Id. In light of this exchange, we held
that a “jury could find that a person not otherwise ready to
commit the crime would have immediately terminated the
conversation.” Id. (cleaned up). Yet the defendant continued the
conversation and planned to meet with Kailey to engage in sexual
activity. Id. We held that “these facts are not sure to leave all
reasonable minds reasonably doubting whether the commission
of the offense was the product of [the defendant’s] inclination.”
Id. (cleaned up).

¶40 The same analysis applies here. Qayum had the
opportunity to immediately terminate the conversation when
Mae said she was thirteen—despite the profile including a photo
of an adult and a listed age of eighteen. Undeterred by Mae’s age
and her references to middle school, Qayum continued the
conversation and planned to meet up for sex. These facts do not
“leave all reasonable minds reasonably doubting whether the
commission of the offense was the product of [Qayum’s]
inclination.” Id. (cleaned up).

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State v. Qayum

¶41 Qayum attempts to distinguish his case from Dickerson,
arguing that Agent “[c]apitaliz[ed] on Qayum’s attraction to an
adult model” as a way of taking advantage of Qayum before
revealing that Mae was only thirteen. And further, Qayum
observes that he “had already solicited Mae to engage in sex
before Mae claimed to be” thirteen, and he argues therefrom that
this pre-existing agreement added pressure on Qayum to follow
through with the meet-up.

¶42 But the problem here is that Qayum continued to try to
have sex with Mae even after he learned that she was thirteen. At
that moment, an average law-abiding citizen would have
discontinued the conversation. See id. ¶ 22 (“The test is whether a
law enforcement official . . . induced the defendant to commit
such an offense by persuasion or inducement which would be
effective to persuade an average person.” (cleaned up)). And this
is true despite Model’s alleged attractiveness and despite any
pressure attributable to the pre-age-reveal agreement to have sex. 6
Mae’s revelation that she was only thirteen years old provided a
clear line of demarcation, and it was an obvious opportunity for
Qayum to withdraw from the conversation. Yet he continued the
conversation, asked for more photos, planned to meet up to have
sex, and traveled to the location where they were to meet—all

6. We are entirely unpersuaded by Qayum’s argument that
Model’s asserted extreme attractiveness induced Qayum to
commit a crime he wasn’t otherwise ready to commit. We agree
with the State that any discussion in Utah caselaw about the use
of an attractive agent being a factor that could contribute to an
entrapment finding has been limited to non-sexual crimes, see, e.g.,
State v. Kaufman, 734 P.2d 465, 467–68 (Utah 1987), and that as
regards sexual crimes, the attractiveness of the putative victim
should not be viewed as a material factor in an entrapment
analysis. After all, in sex-crime cases, sexual attraction is not an
unusual or extraordinary motive; rather, a defendant’s attraction
to the putative victim is a baseline feature of almost every case
and is thus best viewed as simply a part of any normal
opportunity to commit the offense.

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State v. Qayum

while making statements that a reasonable jury could conclude
demonstrated that he believed Mae was a minor. And, as
discussed below, see infra Part III, Qayum admitted during the
police interview that he thought Mae was thirteen. At the very
least, a jury could have reasonably found that Qayum’s continued
engagement and attempted meet-up with Mae after she had told
him she was thirteen was the “result of [his] own voluntary desire
and intent to commit the crime.” Id. ¶ 30 (cleaned up); see also State
v. Salmon, 612 P.2d 366, 369 (Utah 1980) (“When there is a
reasonable basis in the evidence upon which jurors could believe
beyond a reasonable doubt that the crime was a result of a
defendant’s own voluntary desire and intent to commit the crime,
the fact that a police officer merely afforded him the opportunity
to commit it, does not amount to entrapment.”).

¶43 Under these circumstances, renewal of the motion to
dismiss (or moving for a directed verdict) arguing entrapment as
a matter of law would have been futile, and on that basis we are
simply unable to conclude that Counsel’s performance was
deficient. See State v. Carter, 2022 UT App 9, ¶ 30, 504 P.3d 179 (“A
futile motion necessarily fails both the deficiency and prejudice
prongs of the Strickland analysis because it is not unreasonable for
counsel to choose not to make a motion that would not have been
granted, and forgoing such a motion does not prejudice the
outcome.” (cleaned up)), aff’d, 2023 UT 18, 535 P.3d 819. On this
basis, we reject Qayum’s claim that Counsel rendered
constitutionally ineffective assistance.

¶44 And for similar reasons, the district court did not commit
plain error by opting not to sua sponte dismiss this case on
entrapment grounds. To succeed on a plain error claim, Qayum
must show that “(i) an error exists; (ii) the error should have been
obvious to the [district] court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant.” State v. Cesspooch, 2024 UT
App 15, ¶ 7, 544 P.3d 1046 (cleaned up), cert. denied, 550 P.3d 994
(Utah 2024). Here, had the district court dismissed the case on
entrapment grounds, that would have been erroneous and would
have been grounds for reversal, just as in Dickerson. See 2022 UT

20240207-CA 17 2025 UT App 178
State v. Qayum

App 56, ¶ 58. The district court therefore did not commit error at
all, let alone obvious error, by opting not to take that action;
instead, it correctly determined that the entrapment issue was one
properly reserved for the jury’s consideration.

II. The Tiedemann Motion to Dismiss

¶45 Next, Qayum argues that the district court erred when it
denied his motion to dismiss the case as a sanction for the State’s
failure to preserve evidence. 7 We discern no error in that decision.

¶46 “It is a matter of clear Utah law that criminal defendants
are entitled to information possessed by the State to aid in their
defense.” State v. Tiedemann, 2007 UT 49, ¶ 40, 162 P.3d 1106.
Indeed, in some instances, “the destruction or loss of such
evidence violates due process.” State v. Mohamud, 2017 UT 23,
¶ 18, 395 P.3d 133. “[T]o establish a due process violation arising
from the loss of evidence, a defendant must first demonstrate a
reasonable probability that the lost evidence would have been
exculpatory.” Id. Once that threshold inquiry has been satisfied, a
court must engage in “the second part of the Tiedemann analysis,”
in which it “must balance” “two factors” that assist it in
determining the seriousness of the violation and the appropriate
remedy: “(1) the culpability of the State in the loss or destruction

7. On this point, Qayum requests a remand, pursuant to rule 23B
of the Utah Rules of Appellate Procedure, so that he might further
develop record evidence supporting a claim that Counsel
rendered ineffective assistance by failing “to explain that the State
never produced an uncropped version of the profile photo.” In its
response to Qayum’s motion for remand, the State agreed “that
the only version of the [Mae] profile photo produced to the
[district] court was a thumbnail of the original image” and that
Counsel “made their objection to this thumbnail image clear to the
[district] court.” Given that the record apparently now contains
all of the things Qayum wanted to develop on remand, no remand
is necessary, and the rule 23B motion is therefore denied.

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State v. Qayum

of the evidence and (2) the prejudice to the defendant as a result
of the missing evidence.” Id.

¶47 Regarding the threshold inquiry, a “reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id. ¶ 20 (cleaned up). “The bar is quite low and will be
met so long as the defendant’s proffer as to what the lost evidence
would have shown is not pure speculation or wholly incredible.”
Id. (cleaned up). That said, “even though the bar is low, there must
be more than speculation.” Id.

¶48 In this case, the State provided screenshots and a screen
recording of the entire chat to Qayum, including the various
photos Mae sent through the chat. But the State deleted the profile
itself and its associated metadata, as well as the full-resolution
photo of Model that Agent posted as Mae’s profile photo.
Regarding that photo, Qayum received only a cropped and
thumbnail-size version of it, which appeared in the chat
conversation. From these facts, Qayum argues that “Mae’s profile
would have been exculpatory” because it “would have cast doubt
on the State’s evidence that Qayum believed Mae was a minor.”
And Qayum asserts that Model was an adult and did not appear
to be thirteen years of age in the profile photo.

¶49 But this argument misses the mark for two related reasons.
First, the State conceded that Model was over eighteen years old
and that therefore Mae’s profile photo depicted an adult woman.
Moreover, the jury knew that the profile said “18” and that Model
was an adult. It is therefore unclear whether the full-resolution
photo would show anything more than what the State had
already conceded and the jury knew: that the profile photo
depicted an adult woman.

¶50 Second, and more importantly, even if the full-resolution
photo depicted a woman who clearly appeared to be an adult, that
would not change the fact that Qayum subjectively believed that
Mae was a minor. See Utah Code § 76-4-401(2)(b)(i) (2018) (stating
that, for an enticement crime, what matters is whether the
defendant has contacted “a minor or a person the [defendant]

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State v. Qayum

believes to be a minor” (emphasis added)). 8 As noted already, see
supra ¶ 10, and as discussed more fully below in Part IV, during
his police interview Qayum never claimed to believe that Mae
was an adult; in fact, he admitted that he thought Mae was
thirteen. And—importantly—he had seen the full-resolution
profile photo. Here, the key problem is that Qayum has provided
no evidence—in the form of an affidavit, for example—indicating
what the full-resolution photo would have shown or that the
contents of that photo would have been likely to convince him
that Mae—despite her statements to the contrary—was an adult.
And any such evidence would be in direct tension with Qayum’s
own experience—after all, he saw the full photo and still
apparently came to believe Mae was thirteen.

¶51 In other words, while it may have been possible for Qayum
to have met his burden of demonstrating a reasonable probability
that the photo was exculpatory—by, for instance, submitting his
own affidavit averring that the photo contained a clearly aged
woman and that, because he saw the full photo, he subjectively
believed Mae was an adult—Qayum did not provide the district
court with any such affidavit or with any similar evidence tending
to indicate that the profile photo would have been exculpatory.
So, even though we agree with Qayum that it is theoretically
possible for a photo like this one to be shown to be exculpatory
based on its content, Qayum has not met his burden here, because
there is no direct evidence (other than, of course, the State’s
concession that it was a photo of an adult woman) of what the
photo actually looked like, 9 nor is there any evidence that

8. This statute was amended and renumbered after the events
involving Qayum occurred. Compare Utah Code § 76-5-417 (2025),
with id. § 76-4-401 (2018). We cite the previous version of the
statute in the text because it was the version in effect at the time
of the events in question in this case.

9. Indeed, the evidence we do have indicates that the full-
resolution version of the photo is unlikely to have shown much, if
(continued…)

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State v. Qayum

Qayum—who actually viewed the photo—was persuaded that
Mae was an adult based on the photo. Thus, we have no basis to
conclude, on these facts, that there was a reasonable probability
that the full-resolution photo would have been exculpatory.

¶52 On this point, we are mindful of a defendant’s Fifth
Amendment right against self-incrimination. Even so, our
supreme court noted in Mohamud that the defendant in that case
“could have testified on his own behalf as to what the [potentially
exculpatory evidence] would have shown, which would not have
waived his Fifth Amendment right against self-incrimination.”
2017 UT 23, ¶ 23. Indeed, the court explained that a defendant’s
“burden to show by reasonable probability that the lost evidence
would have been exculpatory includes the duty to make some
proffer as to how the [purportedly exculpatory evidence] could
have potentially helped his case, even if such a showing
necessitated that he personally testify in some fashion.” Id. ¶ 24.
And “courts have long recognized that upon a showing of
substantial tension between a defendant’s desire to testify in a
hearing that adjudicates a claim of constitutional right in a
criminal case and the right of that defendant not to give testimony
that is incriminating as to the charge in question, defendants may
offer potentially incriminating testimony without surrendering
their Fifth Amendment privileges.” Id. ¶ 23 (cleaned up). Thus,
Qayum could have proffered testimony as to the exculpatory
nature of the photo without surrendering his Fifth Amendment
privileges at trial. Yet, without some proffer from Qayum here as
to what the full-resolution photo looked like and what effect it

anything, useful. The thumbnail-size version of the profile photo
mostly just shows Model’s long, flowing hair; the photo does not
show much of Model’s face. And as the State points out, we can
tell from Qayum’s profile approximately how much of a profile
photo is eliminated, on this particular app, when that photo is
reduced to thumbnail size: not all that much. It is thus doubtful,
on this record, whether the full-resolution profile photo would
even have shown material portions of Model’s face.

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State v. Qayum

was likely to have on people viewing it, there exists only
speculation as to whether it would have been exculpatory. 10

¶53 Accordingly, we discern no error in the district court’s
order denying Qayum’s motion to dismiss based on the
destruction of potentially exculpatory evidence.

III. The Rule 505 Motion to Dismiss

¶54 Qayum next argues that the district court erred when it
denied his motion to dismiss regarding the State’s invocation of
the confidential-informant privilege with regard to Model. 11
Specifically, he argues that the court erred when it ruled that there
was no reasonable probability that Model could have given
testimony necessary to a fair determination of guilt or innocence.
We again disagree.

¶55 Under rule 505(b) of the Utah Rules of Evidence, the
“government has a privilege to refuse to disclose the identity of
an informer.” This rule “places a single condition on the

10. For similar reasons, we also reject Qayum’s assertion that the
deleted metadata would have been exculpatory as concerns his
entrapment defense. Qayum argues that “the metadata would
have shown that Mae reengaged Qayum in conversation.” But
even assuming that mere reengagement could constitute a basis
for entrapment, the screenshots of the chat and screen recording
clearly showed date stamps, and therefore evidence of whether
and to what extent Agent reengaged Qayum in the conversation
is already in the record. Apart from this aspect of the metadata,
Qayum has not proffered any testimony—or other evidence—
explaining what the missing metadata would have shown or how
it would have been exculpatory.

11. Qayum does not take issue with the State’s ability to designate
Model as a confidential informant. So, following the parties’ lead,
we assume for purposes of our analysis, and without deciding,
that Model could qualify as an “informer” for purposes of rule
505(a)(2) of the Utah Rules of Evidence.

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State v. Qayum

unfettered exercise of the confidential informant privilege: the
absence of a reasonable probability that the confidential
informant can give testimony essential to a determination of the
defendant’s guilt or innocence.” Nielsen v. State, 2016 UT 52, ¶ 14,
391 P.3d 166; see also Utah R. Evid. 505(e). “If the judge finds there
is [a] reasonable probability that the informer can give” testimony
“necessary to a fair determination of the issue of guilt or
innocence in a criminal case” and “the government elects not to
disclose the informer’s identity,” the court “on motion . . . shall
dismiss the charges to which the testimony would relate.” Utah
R. Evid. 505(e)(1)–(2). In this case, the district court determined
that there was “no reasonable probability that [Model could have]
give[n] testimony necessary to a fair determination of the issue of
guilt or innocence” of Qayum.

¶56 Qayum challenges this determination, arguing that Model
could have provided testimony about “three areas of inquiry”
that, in his view, would have been “relevant” to his “belief that
Mae was 13 and to entrapment” and that would have been
necessary to a fair determination of his guilt or innocence. First,
Qayum argues that Model “could have testified about her age and
whether people mistook her for a 13-year-old.” For example,
Qayum posits that Model could have testified as to whether she
had ever been suspected of driving illegally, whether she had
been asked to provide identification at an R-rated movie, or
whether people asked her which middle school she attends. In
short, Qayum argues that if Model did not look thirteen—or most
people did not think she looked thirteen—it would cut against the
State’s assertion that Qayum thought she was a minor.

¶57 But the key word in rule 505 is “necessary.” Even assuming
that these lines of inquiry could be relevant to whether other people
thought Model looked like an adult, it does not follow that this
evidence is necessary to a fair adjudication of this case, because
what ultimately mattered here was Qayum’s subjective belief
about Model’s age. See Utah Code § 76-4-401(2)(b)(i) (2018)
(stating that, for an enticement crime, what matters is whether the
defendant has knowingly contacted “a minor or a person the
[defendant] believes to be a minor” (emphasis added)). And, as

20240207-CA 23 2025 UT App 178
State v. Qayum

already discussed, see supra Part II, there is no evidence that—
while he was chatting with Mae—Qayum believed Mae was
actually an adult. In fact, ample evidence in the record
demonstrates the contrary—that when Mae told him she was
thirteen, Qayum did not express skepticism but, instead, simply
said that, because of her age, they needed to be “very careful” if
they had sex, and that, during the police interview, Qayum
admitted that he thought Mae was thirteen, that he “made a
mistake,” that he “[j]ust lost [his] conscience,” and that he did
“something stupid.” The district court was correct when it
concluded that Model’s testimony about her appearance would
be “irrelevant to [Qayum’s] mental state” and therefore not
necessary to any adjudication of his guilt or innocence.

¶58 Second, regarding the entrapment defense, Qayum argues
that Model could have testified about “the role the police played
in staging the photos” and whether they “gave her instructions to
create photos that may induce the crime.” But Model’s testimony
on these points was not necessary to any determination of
Qayum’s guilt or innocence because Qayum could have obtained
that information from the law enforcement officers involved in
obtaining the photos. Indeed, Agent offered testimony along
these lines at trial, telling the jury that he had obtained the photos
by contacting a modeling agency and that he specifically asked for
someone who “looks really young.” Agent also explained that
Model did not “otherwise” have “any involvement” in the sting
operation that Agent was running. Counsel had the chance to
cross-examine Agent, and during that examination Agent stated
that, as far as he knew, Model took the photos herself (they were
selfies) and that he was not present when they were taken.
Counsel could have asked additional questions about any role the
police played in staging the photos, and there is no reason to think
that Agent would not have provided that information. Because
such information was readily available from Agent, Model’s
testimony on these issues was not necessary.

¶59 Finally, Qayum argues that Model “may also have been
able to authenticate or produce the photos which . . . were not
provided to the defense.” As an initial matter, there is no

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State v. Qayum

indication—beyond speculation—that Model still had any of the
original photos in her possession. But even if she did, Agent
authenticated the existing photos at trial, and he very likely could
have authenticated other photos in the same manner; at the very
least, Qayum does not explain why Agent could not have done
so. Under these circumstances, Model’s testimony was not
necessary for the purpose of authenticating photos.

¶60 Accordingly, for all of these reasons, we discern no error in
the district court’s order denying Qayum’s motion to dismiss
regarding Model’s status as a confidential informant.

IV. Motion to Suppress

¶61 Finally, Qayum argues that the district court erred when it
denied his motion to suppress the statements Qayum made
during his post-arrest interview.

¶62 The Fifth Amendment to the United States Constitution
states that no person “shall be compelled in any criminal case to
be a witness against himself.” Police officers must “protect this
privilege by informing an accused person of his or her
constitutional rights before engaging in custodial interrogation.”
State v. Dahlquist, 931 P.2d 862, 866 (Utah Ct. App. 1997) (citing
Miranda v. Arizona, 384 U.S. 436, 444 (1966)). These rights include
“the right to remain silent and the right to have an attorney
present.” State v. Medina, 2019 UT App 49, ¶ 11, 440 P.3d 846.

¶63 Qayum’s challenge here is bifurcated into two arguments.
First, he argues that he invoked his right to counsel and that the
interview should have terminated at that point. Alternatively, he
argues that Officer proceeded with the interview without
obtaining a valid waiver of his Miranda rights. 12 Based on these

12. In its brief, the State argued that Qayum failed to preserve his
waiver challenge for our review on appeal. However, at oral
argument before this court, the State acknowledged that Qayum
had argued, before the district court, that Officer proceeded with
(continued…)

20240207-CA 25 2025 UT App 178
State v. Qayum

arguments, he asserts that the interview proceeded unlawfully
and that statements he made during that interview should have
been suppressed. We address each of Qayum’s arguments in turn.

A. Invocation of the Right to Counsel

¶64 To invoke the right to counsel, an interviewee “must
unambiguously request counsel in such a way that the desire to
have counsel present is sufficiently clear.” Medina, 2019 UT App
49, ¶ 12 (cleaned up). If an interviewee invokes this right, the
interview “must cease” and, “with limited exceptions,” the State
“may not use any statements made by the accused taken in
violation of Miranda’s protections.” Dahlquist, 931 P.2d at 866.

¶65 But the interviewee’s invocation “must be unambiguous.”
State v. Deprey, 2024 UT App 190, ¶ 26, 562 P.3d 1246 (cleaned up),
cert. denied, 564 P.3d 961 (Utah 2025). “If a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to
counsel, the questioning may continue.” Id. (cleaned up); see also
State v. Garcia-Flores, 2021 UT App 97, ¶ 23, 497 P.3d 847 (holding
that a defendant asking, “Is it, uh, possible to have a lawyer[?]”
was an ambiguous request for counsel (cleaned up)); State v.
Smith, 2019 UT App 141, ¶ 30, 449 P.3d 971 (explaining that an
“ambiguous reference to counsel . . . did not require [the law
enforcement officer] to stop his questioning or seek clarification
of [the defendant’s] intent”). Importantly, the “invocation of the
right to counsel must be unequivocal in both the pre- and post-
waiver contexts.” Smith, 2019 UT App 141, ¶ 29.

the interview without first obtaining a valid waiver. And the State
acknowledged that the district court made some findings as to
whether Qayum understood his rights. Thus, the State offered its
view that Qayum’s preservation efforts had been “close enough”
and that therefore the waiver argument should not be rejected on
preservation grounds. We follow the State’s lead on this point and
proceed to address the merits of Qayum’s waiver argument.

20240207-CA 26 2025 UT App 178
State v. Qayum

¶66 Qayum claims that he invoked his right to counsel with the
following statement at the beginning of the police interview: “I
have to tell my attorney to talk to you . . . to answer my questions.”
At first blush, and when read in isolation, it may appear from this
statement that Qayum was trying to say that he wanted to talk to
an attorney before answering questions at the interview. But
when this statement is placed in its proper context, the better
interpretation of it is that Qayum was merely affirming that he
understood his Miranda rights—and specifically, that he
understood that he had the right to counsel—and was not actually
invoking them in that moment. Qayum’s statement was made in
direct response to Officer’s request that Qayum verbalize that he
understood his rights. After Officer informed him of his Miranda
rights, Officer asked, “Do you understand everything?” Qayum
nodded. But Officer then asked, “Can you tell me so?,” and
Qayum replied, “I have to tell my attorney to talk to you . . . to
answer my questions.” And when Officer followed up by asking,
“So, you understand all that?,” Qayum answered, “Yeah.” And as
the interview proceeded, Qayum answered the questions and did
not appear confused that he was not given the chance to consult
with an attorney first.

¶67 Thus, in context, Qayum’s statement is better understood
as merely an affirmation that he understood his right to counsel.
It certainly was not an unambiguous invocation of the right to
consult with an attorney. See Deprey, 2024 UT App 190, ¶ 26. And
because Qayum simply made “a reference to an attorney that
[was] ambiguous or equivocal,” Officer was permitted to continue
the questioning. See id. (cleaned up).

¶68 For these reasons, we discern no error in the district court’s
order denying Qayum’s motion to suppress based on Qayum’s
purported invocation of his right to counsel.

B. Waiver

¶69 An interviewee’s waiver of Miranda rights is valid if “the
waiver is made voluntarily, knowingly and intelligently.”
Miranda v. Arizona, 384 U.S. 436, 444 (1966). The “waiver must

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State v. Qayum

have been made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to
abandon it,” and “[o]nly if the totality of the circumstances
surrounding the interrogation reveal both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.” Moran v.
Burbine, 475 U.S. 412, 421 (1986).

¶70 “Absent an express waiver of these rights, an implicit
waiver is valid if a person, with a full understanding of his or her
rights, acts in a manner inconsistent with their exercise.” State v.
Rogers, 2014 UT App 89, ¶ 6, 325 P.3d 884 (cleaned up). Indeed, in
this context “waiver may be either express or inferred from a
defendant’s acknowledgment of the understanding of his or her
rights and [the] defendant’s subsequent course of conduct.” State
v. Barrett, 2006 UT App 417, ¶ 11, 147 P.3d 491 (cleaned up); see
also id. ¶ 12 (noting that the defendant’s “admission of guilt
immediately after acknowledging that he understood his rights
also supports waiver”); Rogers, 2014 UT App 89, ¶¶ 2, 6–7 (noting
that the defendant’s “conduct show[ed] an implicit waiver of his
rights” and that the defendant “never refused to answer a
question and never asked for a lawyer”).

¶71 In this case, the district court found that Qayum
understood his Miranda rights and proceeded with the police
interview accordingly. At the evidentiary hearing on the motion
to suppress, the State presented a video recording of Qayum’s
interview wherein Qayum could be seen nodding along as he was
given his Miranda rights, as well as heard affirmatively answering
that he understood his rights. Agent, who was in the room with
Qayum as he was interviewed, also testified that Qayum was
“advised of Miranda” before he was asked any questions. Agent
explained that after Qayum was read his rights, Officer asked
Qayum to “explain his rights back” to Officer “to make sure that
he understood” them, and that Qayum “seemed very
understanding of his rights.” And Agent testified that although
he “could tell that English was not [Qayum’s] first language,”
Qayum conversed with him in English the entire interview and
that any language barrier did not appear to be problematic.

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State v. Qayum

¶72 From this evidence, the district court found that Qayum
“never expressed confusion about his Miranda rights, never asked
any questions about those rights, and never asked for a break or
for time to think.” “Instead,” the court explained, Qayum
“indicated that he understood the rights and then proceeded to
answer . . . [Officer’s] questions.” Thus, the court found that “[b]y
failing to invoke his rights unambiguously and by proceeding to
answer [Officer’s] questions without hesitation,” Qayum had at
least implicitly waived his Miranda rights, and in that situation
Officer was “permitted to proceed with . . . questioning, and there
[was] no basis on which to suppress [Qayum’s] statements.”

¶73 Based on our review of the record, including the recording
of the interview, we discern no error—let alone clear error—in the
district court’s factual findings, and we agree with the district
court’s determination that Qayum understood his Miranda rights
and waived them by proceeding with the interview.

CONCLUSION

¶74 Qayum has not carried his burden of demonstrating that
Counsel rendered ineffective assistance by failing to again bring
the entrapment issue before the court by motion. And the district
court did not err when it denied Qayum’s various motions to
dismiss or his motion to suppress the statements he made during
his police interview. We therefore reject Qayum’s appellate
arguments and affirm his conviction.

20240207-CA 29 2025 UT App 178