State v. Mitchell

2013 UT App 289
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DONALD MITCHELL,
Defendant and Appellant.
Opinion
No. 20110723-CA
Filed December 12, 2013
Sixth District Court, Richfield Department
The Honorable Wallace A. Lee
No. 071600174
Grant W.P. Morrison, Court J. Klekas II, and
Laura J. Fuller, Attorneys for Appellant
Brian L. Tarbet and Marian Decker, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this
Opinion, in which JUDGES GREGORY K. ORME and
MICHELE M. CHRISTIANSEN concurred.
VOROS, Judge:
¶1 Donald Mitchell appeals from his conviction of ten counts
of sexual exploitation of a minor, a second degree felony. We
affirm.
BACKGROUND
¶2 “When reviewing a jury verdict, we examine the evidence
and all reasonable inferences drawn therefrom in a light most

State v. Mitchell
20110723-CA 2 2013 UT App 289
favorable to the verdict, and we recite the facts accordingly.” State
v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. Similarly, “[i]n reviewing a
trial court’s ruling on a suppression motion, we consider the facts
in a light most favorable to the trial court’s findings,” State v.
Patefield, 927 P.2d 655, 656 (Utah Ct. App. 1996) (citation and
internal quotation marks omitted), and recite them accordingly,
State v. Blevins, 968 P.2d 402, 402 (Utah Ct. App. 1998).
¶3 On September 20, 2006, Agent David White, assigned to the
Utah Attorney General’s Internet Crimes Against Children
taskforce, used a computer program to access a peer-to-peer file-
sharing network. He observed that a particular IP address was
sharing files known to contain child pornography. Agent White
then requested a search warrant; however, his affidavit in support
of a search warrant contained an apparent inconsistency. He stated
that he had observed this activity on September 26, 2006, but also
stated that he had requested that the internet service provider
identify the subscriber to whom that IP address was assigned as of
September 20, 2006. Agent White explained the discrepancy at trial.
Based on his contemporaneous notes, he testified that “the actual
date that I made the direct connection with the suspect IP address
was actually on September 20th and was not on September 26th. I
must have taken the time 12:26 and somehow got it in there. It was
a typo.”
¶4 The internet service provider informed Agent White that the
IP address was assigned to Mitchell as of September 20, 2006. While
the internet service provider listed Mitchell’s address as 50 North
100 East, other databases listed Mitchell’s address as 70 North 100
East. Based on information from the local sheriff, Agent White
concluded that both addresses were “associated with the same
house.” Agent White’s affidavit in support of a search warrant
stated that as a result of his investigation he had “probable cause
to believe that evidence [is] located on the premises at 70 North 100

State v. Mitchell
1. Before the officers left the house, Mitchell requested a ride back
to his workplace so he could get his car. When the officers refused,
Mitchell called a friend for a ride. On the way back to his
workplace, Mitchell and his friend were struck head-on by a drunk
driver and Mitchell was seriously injured.
20110723-CA 3 2013 UT App 289
East.” The magistrate agreed and issued a search warrant for that
address.
¶5 On November 14, 2006, Agent White and other officers
approached Mitchell at the golf course where he worked, told him
that they had a search warrant for his house, and told him that he
would need to accompany them back to his house. The officers
informed Mitchell of his Miranda rights, which he waived. See
Miranda v. Arizona, 384 U.S. 436 (1966). For the safety of the officers,
Mitchell was handcuffed during the drive to and search of his
house. During the eight-mile drive, Mitchell gave the officers
directions. When asked if he had downloaded child pornography,
Mitchell responded that he had but stated that he had done so
accidentally and that he had deleted the files. Upon arriving,
Mitchell accompanied the officers into his house. After a search
lasting nearly two hours, the officers confiscated two computers for
later analysis and uncuffed Mitchell.1
¶6 The officers then obtained a second warrant, which
authorized forensic analysis of the seized computers. This analysis
revealed five child pornography videos on one of the computers.
Because the videos depicted ten different minors, Mitchell was
charged with ten counts of sexual exploitation of a minor.
¶7 Before trial, Mitchell moved to suppress the statements he
made to the officers, arguing that he was unlawfully arrested at the
time of the conversation in the car. Mitchell also sought
suppression of the videos on the ground that the second search
warrant had been issued based on the illegally obtained statements.

State v. Mitchell
2. On recross-examination, the agent acknowledged that, of the
500,000 files he examined, he was not aware of suspected child
pornography in “any more than those 20 files.”
20110723-CA 4 2013 UT App 289
After a hearing, the trial court denied Mitchell’s motion in a written
order.
¶8 On the first day of trial, Mitchell filed a second motion to
suppress on the ground that the IP address was not assigned to
him as of September 26, 2006, the date listed in the affidavit.
Mitchell also gave notice that he intended to call alibi witnesses and
have his expert witness testify about evidence that Mitchell had
received just days before trial. The trial court ruled that, while
Mitchell could testify about his alibi, he could not call his intended
alibi witnesses due to failure to timely file notice. The trial court
further ruled that Mitchell’s expert’s testimony would be limited
in scope because of his failure to file a proper report.
¶9 At trial, the agent who conducted the forensic analysis
testified that he had identified a total of “ten picture files and ten
video files” as “possible images of child pornography.” This
number of files exceeded the five files Mitchell was ultimately
charged with possessing. Mitchell objected to the testimony on
relevance grounds, but the trial court allowed it to rebut Mitchell’s
claim that “there were only [the] five files,” which constituted
“really a small minority of files.”2
ANALYSIS
I. Validity of the Search Warrant
¶10 Mitchell first contends that the search warrant authorizing
the search of his home computers was invalid under article I,

State v. Mitchell
3. We reject Mitchell’s state constitutional challenge for a second
reason. Mitchell cites State v. Worwood, 2007 UT 47, 164 P.3d 397, for
the proposition that “article I, section 14 of the Utah Constitution
often provides greater protections to Utah citizens than the Fourth
Amendment, despite nearly identical language.” Id. ¶ 16. However,
like Worwood’s state constitutional analysis in that case, Mitchell’s
“state constitutional analysis is limited to the truism that article I,
section 14 may provide greater protections to Utah citizens than the
Fourth Amendment. But [Mitchell] failed to advance a unique state
constitutional analysis.” Id. ¶ 19. So like our supreme court in
Worwood, “we decline to reach it.” Id.
20110723-CA 5 2013 UT App 289
section 14 of the Utah Constitution and under the Fourth
Amendment to the United States Constitution. Mitchell argues that
the trial court therefore should have granted his second motion to
suppress. The trial court denied that motion to suppress as
untimely. Mitchell has not challenged this basis for the trial court’s
ruling. “Because [Mitchell] fails to address the basis of the district
court’s ruling, we reject this challenge.” Golden Meadows Props., LC
v. Strand, 2010 UT App 257, ¶ 17, 241 P.3d 375.3
¶11 Mitchell also argues that he received ineffective assistance
of counsel when his trial counsel failed to file a timely motion to
suppress. See Utah R. Crim. P. 12(c)(1) (requiring motions to
suppress to be raised at least five days prior to trial). To succeed on
a claim of ineffective assistance of counsel, a defendant must show
both “that counsel’s representation fell below an objective standard
of reasonableness” and “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.”Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); see
also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. “An ineffective

State v. Mitchell
20110723-CA 6 2013 UT App 289
assistance of counsel claim raised for the first time on appeal
presents a question of law.” Clark, 2004 UT 25, ¶ 6.
¶12 Mitchell has not demonstrated that he was prejudiced by his
counsel’s failure to file a timely motion to suppress, because he has
not demonstrated a reasonable probability that the motion to
suppress would have been granted had it been timely filed.
Mitchell asserts that the affidavit supporting the warrant to search
his house did not establish probable cause on its face. Probable
cause exists when “there is a ‘fair probability’ that evidence of the
crime will be found in the place or places named in the warrant.”
State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993) (quoting Illinois
v. Gates, 462 U.S. 213, 238 (1983)).
¶13 The search warrant affidavit contained an inaccurate date.
Agent White’s affidavit in support of the search warrant stated that
on “September 26, 2006, at approximately 12:26 HRS MST,” he
observed child pornography being offered from a specific IP
address on a peer-to-peer file-sharing network. Agent White
further stated that he later sent an administrative subpoena to the
internet service provider holding that IP address, requesting
identification of the subscriber using that specific IP address “on
September 20th, 2006, at 12:26 hours MST.” The internet service
provider responded that the IP address was assigned to Mitchell
for a nine-day period including September 20.
¶14 Mitchell, assuming that the September 26 date was accurate,
argues that the affidavit does not establish probable cause, because
IP addresses frequently change. Therefore, Mitchell argues, no
information was provided to show that he was the subscriber of the
IP address on September 26, when the child pornography was
being shared. The State responds that the September 26 date was
a typographical error that did not undermine the probable cause
determination.

State v. Mitchell
20110723-CA 7 2013 UT App 289
¶15 Errors in an affidavit do not require suppression when the
magistrate has a substantial basis to determine that the erroneous
facts are merely typographical errors and the facts otherwise
support a determination of probable cause. See, e.g., State v.
Valle-Flores, 2005 UT App 290, ¶¶ 2–5, 117 P.3d 1069 (holding that
a warrant to search 626 Pueblo Street was supported by probable
cause despite the supporting affidavit’s reference to both 624
Pueblo Street and 626 Pueblo Street); State v. Wallace, 2002 UT App
295, ¶¶ 24–26, 55 P.3d 1147 (holding that a warrant to obtain a
blood sample was valid despite a reference to a urine sample in the
addendum to the affidavit because the “minor inconsistency” did
“not seriously undermine the information underlying the probable
cause determination”); United States v. Snyder, 471 F. App’x 884, 885
(11th Cir. 2012) (per curiam) (holding that an affidavit that gave
directions to 1924 Queen City Avenue and included a description
of the numberplate and building at that location provided sufficient
probable cause to validate a search warrant despite also containing
a single reference to 1942 Queen City Avenue); United States v.
Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996) (declining to invalidate a
warrant based on an affidavit in which a scrivener’s error changed
a username from “Redde1” (ending with a numeral) to “REDDEL”
because the Federal Bureau of Investigation was otherwise “clear
that they were searching” for the former); see also State v. Rosario,
680 A.2d 237, 240–41 (Conn. 1996) (concluding that an affidavit’s
misstatement of the year did not undermine probable cause where
other information in the affidavit indicated the correct year); State
v. White, 368 So. 2d 1000, 1002 (La. 1979) (same); State v. Marquardt,
602 P.2d 1198, 1199 (Or. App. 1979) (same); 2 Wayne R. LaFave,
Search and Seizure § 3.7(b), at 496 (5th ed. 2012) (“[R]eference to a
year other than the current year will not invalidate the warrant if
the circumstances fairly indicate that the intended reference was to
the current year.”). But see Stroud v. Commonwealth, 175 S.W.2d 368,
369 (Ky. 1943) (holding that an affidavit did not provide probable
cause sufficient to validate a warrant where the affidavit stated an

State v. Mitchell
20110723-CA 8 2013 UT App 289
incorrect date uncontradicted by any other specific fact in the
affidavit); Greenstreet v. State, 898 A.2d 961, 973–74 (Md. 2006)
(same).
¶16 We conclude that the affidavit here contained a substantial
basis for the trial court to determine that the reference to September
26 was a typographical error and that the affidavit, read as a whole,
presented a fair probability that evidence of child pornography
would be found by searching Mitchell’s computer. In the affidavit,
Agent White initially states that he observed the child pornography
being shared from the IP address on September 26, 2006, at 12:26
MST. He then states that he requested the identity of the IP address
user for September 20, 2006, at 12:26 MST. He concludes as follows:
“Based on the foregoing, I respectfully submit that there is
probable cause to believe that an individual known as Don
Mitchell[,] accessing the Internet . . . on September 20th, 2006, has
committed violations of Section 76-5a-3 of the Utah Code . . . .”
¶17 In light of this evidence, Mitchell has not demonstrated a
reasonable probability that a timely motion would have resulted in
suppression of the evidence obtained from the search warrant.
“The Sixth Amendment does not require counsel to make futile
objections.” State v. Ricks, 2013 UT App 238, ¶ 22 (citing State v.
Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52). Accordingly, Mitchell has
not shown that he was prejudiced by his counsel’s failure to make
the motion. Therefore, counsel’s failure to timely file a motion to
suppress based on the validity of the warrant did not amount to
constitutionally ineffective assistance of counsel.
II. Motion to Suppress Due to Allegedly Illegal Arrest
¶18 Mitchell next challenges the trial court’s denial of an earlier,
timely motion to suppress. As explained above, en route from his
workplace to his house, Mitchell told police that he had

State v. Mitchell
4. On appeal, Mitchell argues that “[a]ll of the evidence seized
should have been suppressed.” However, aside from a single
general remark about confessions, Mitchell does not appear to
challenge the trial court’s ruling regarding the admission of the
statements.
20110723-CA 9 2013 UT App 289
downloaded child pornography by accident but that he had
deleted it. At the house, the officers continued to detain Mitchell for
nearly two hours while they searched Mitchell’s house and
computers. Mitchell moved to suppress, as fruit of an illegal arrest,
the statements he made and the evidence of child pornography
ultimately found on one of his computers. The trial court denied
the motion. It ruled that the statements were admissible because4
they were made voluntarily. And it ruled that the evidence from
the computers was admissible because Mitchell’s detention was not
a formal arrest but was justified under Michigan v. Summers, which
recognizes limited authority to detain occupants of premises
incident to the execution of a search warrant. See 452 U.S. 692, 705
(1981). But see Bailey v. United States, 133 S. Ct. 1031 (2013) (limiting
Summers). The trial court ruled in the alternative that the evidence
found on the computer was admissible under the inevitable
discovery doctrine. It reasoned that the evidence would have been
discovered through the search warrant “regardless of [Mitchell’s]
presence, his cooperation, or his statements.”
¶19 On appeal, Mitchell challenges the trial court’s ruling
admitting evidence gathered from one of his computers. “We
review a trial court’s factual findings underlying a decision to grant
or deny a motion to suppress evidence for clear error. However, we
review the trial court’s conclusions of law based on such facts
under a correctness standard, according no deference to the trial
court’s legal conclusions.” State v. Garcia, 2007 UT App 228, ¶ 7, 164
P.3d 1264 (citations and internal quotation marks omitted).

State v. Mitchell
20110723-CA 10 2013 UT App 289
¶20 Assuming without deciding that Mitchell’s detention was
illegal, we conclude that the trial court properly admitted the
evidence under the inevitable discovery doctrine. Generally,
“[w]hen evidence is the product of illegal governmental activity, a
court must suppress the evidence to deter the illegality.” State v.
Tripp, 2010 UT 9, ¶ 56, 227 P.3d 1251 (citing Nix v. Williams, 467 U.S.
431, 442–43 (1984)). One exception to this rule is the inevitable
discovery doctrine. Nix, 467 U.S. at 443–44; State v. Topanotes, 2003
UT 30, ¶¶ 13–14, 76 P.3d 1159; State v. Strieff, 2012 UT App 245, ¶ 8,
286 P.3d 317, cert. granted, 298 P.3d 69 (Utah 2013). “The inevitable
discovery doctrine admits unlawfully obtained evidence if the
police would have, in spite of the illegality, discovered the evidence
by some other legal means.” Tripp, 2010 UT 9, ¶ 56; see also
Topanotes, 2003 UT 30, ¶ 14; Strieff, 2012 UT App 245, ¶¶ 8–10.
¶21 “A crucial element of inevitable discovery is independence;
there must be some independent basis for discovery, and the
investigation that inevitably would have led to the evidence [must]
be independent of the constitutional violation.” Topanotes, 2003 UT
30, ¶ 16 (alteration in original) (citations and internal quotation
marks omitted). “Thus, the fact or likelihood that makes the
discovery inevitable [must] arise from circumstances other than
those disclosed by the illegal search itself.” Id. (alteration in
original) (citation and internal quotation marks omitted). Although
the inevitable discovery doctrine deals in hypothetical scenarios,
the prosecution must prove by a preponderance of the evidence not
merely that “the situation could have developed in the manner
hypothesized by the State,” but that the independent source “would
have led to legal discovery of the evidence in question.” Id. ¶ 21. “If
the evidence would not necessarily have been discovered, then it
must be excluded to effect the primary purpose of the exclusionary
rule: to deter unconstitutional police conduct.” Strieff, 2012 UT App
245, ¶ 10.

State v. Mitchell
20110723-CA 11 2013 UT App 289
¶22 Mitchell argues that the State would not have discovered the
evidence on his computers without detaining him, because the
officers could not have found his house without his assistance. This
is so, Mitchell contends, because “the address listed on the search
warrant was 70 North 100 East,” which was his father’s address;
Mitchell’s own address was 50 North 100 East.
¶23 The record supports the trial court’s determination. The
search warrant affidavit contained Mitchell’s address as well as his
father’s. It identified 70 North 100 East as the “situs address” and
50 North 100 East as the “physical address.” The affidavit further
stated that the internet service provider had identified Mitchell’s
address (correctly) as 50 North 100 East. Furthermore, after listing
Mitchell’s father’s address, the warrant contained a detailed
physical description of Mitchell’s house. At the suppression
hearing, Agent White testified that in light of the existence of two
addresses, he had the local police photograph Mitchell’s house and
write a physical description of it. Agent White testified that on the
day of the search Mitchell directed the officers to his house, but that
Agent White also recognized the house by the photographs and
written physical description.
¶24 The trial court concluded that although Mitchell directed the
officers to his house, “[u]pon arriving at the house, Agent White
determined the residence to be searched based on the description
of the home in the affidavit and warrant. [Mitchell] confirmed it
was his house.” Mitchell has not challenged this finding as clearly
erroneous. Accordingly, we have no factual basis to set aside the
trial court’s conclusion that the valid search warrant was an
“independent basis for discovery” that would have inevitably led
to the computer evidence “independent of the constitutional
violation.” See Topanotes, 2003 UT 30, ¶ 16 (citations and internal
quotation marks omitted).

State v. Mitchell
20110723-CA 12 2013 UT App 289
III. Sufficiency of the Evidence
¶25 Mitchell next contends that the evidence presented at trial
was insufficient to support the jury’s conclusion that he knowingly
possessed child pornography. See Utah Code Ann. § 76-5b-201
(LexisNexis 2012). The State responds that Mitchell “argues his
sufficiency challenge as if it were preserved” without
demonstrating that it was.
¶26 “[A]s a general rule, a defendant must raise the sufficiency
of the evidence by proper motion or objection to preserve the issue
for appeal.” State v. Holgate, 2000 UT 74, ¶ 16, 10 P.3d 346. Rule 24
of the Utah Rules of Appellate Procedure requires an appellant’s
opening brief to include, for each issue presented for review,
“citation to the record showing that the issue was preserved in the
trial court.” Utah R. App. P. 24(a)(5)(A). A reply brief is “limited to
answering any new matter set forth in the opposing brief.” Id.
R. 24(c); see also Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (“It is
well settled that issues raised by an appellant in the reply brief that
were not presented in the opening brief are considered waived and
will not be considered by the appellate court.” (citations and
internal quotation marks omitted)).
¶27 Mitchell’s opening brief does not state where in the record
this issue was preserved and does not assert any exception to the
preservation requirement. See Holgate, 2000 UT 74, ¶ 11 (identifying
plain error and exceptional circumstances as two exceptions to the
preservation requirement). Instead, it cites generally to the entirety
of the three-day jury trial transcript—nearly 700 pages. Only in his
reply brief does Mitchell touch upon exceptions to the preservation
requirement in relation to his sufficiency challenge. But he does not
explain how any of the exceptions apply to that challenge.

State v. Mitchell
20110723-CA 13 2013 UT App 289
¶28 After reviewing the record, we agree with the State that
Mitchell did not preserve this claim. See Utah R. App. P. 24(a)(9).
And merely mentioning in a reply brief that exceptions to the
preservation requirement exist does not serve to invoke them. See
id. R. 24(c); Allen, 2008 UT 56, ¶ 8. Thus, on procedural grounds
alone, his sufficiency challenge fails.
¶29 But even if that were not the case, Mitchell has not
demonstrated plain error. A trial court plainly errs “if it submits
the case to the jury and thus fails to discharge a defendant when
the insufficiency of the evidence is apparent to the court.” Holgate,
2000 UT 74, ¶ 17 (citing Utah Code Ann. § 77-17-13 (1999)). “While
it is difficult for the court on appeal to dictate when an evidentiary
defect was apparent to the trial court, there is a certain point at
which an evidentiary insufficiency is so obvious and fundamental
that it would be plain error for the trial court not to discharge the
defendant.” Id. Here, Mitchell challenges the evidence that his
possession of the child pornography was knowing. “Proof of a
culpable mental state comes by way of circumstantial evidence, and
proof of intent or knowledge is an inference that may be drawn by
the factfinder both from direct and from circumstantial evidence.”
State v. O’Bannon, 2012 UT App 71, ¶ 43, 274 P.3d 992 (citing State
v. James, 819 P.2d 781, 789–90 (Utah 1991)).
¶30 An appellant challenging a factual finding must “marshal all
record evidence that supports the challenged finding.” Utah R.
App. P. 24(a)(9). Marshaling entails presenting “a precisely focused
summary of all the evidence supporting” the challenged finding.
Chen v. Stewart, 2004 UT 82, ¶ 77, 100 P.3d 1177. Having done so,
the appellant must then “ferret out a fatal flaw in the evidence.”
West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.
App. 1991).

State v. Mitchell
20110723-CA 14 2013 UT App 289
¶31 More than a mere briefing requirement, the marshaling rule
is prudent tactical advice. An appellant cannot demonstrate that
the evidence supporting a factual finding falls short without giving
a candid account of that evidence. “Formal briefing requirements
aside, an argument that does not fully acknowledge the evidence
supporting a finding of fact has little chance, as a matter of logic, of
demonstrating that the finding lacked adequate factual support.”
Bailey v. Retirement Bd., 2012 UT App 365, ¶ 8, 294 P.3d 577.
¶32 Mitchell’s summary of the evidence supporting the jury’s
verdict omits evidence that would support a finding that he
knowingly possessed child pornography. For example, evidence
was presented at trial that Mitchell used known child pornography
search terms on a peer-to-peer file-sharing network, had pending
download requests for files containing those terms, changed the
default folder to which downloads were automatically sent, and
had manually moved some of the downloaded files from that
folder to a second folder. Additionally, one of the three file-sharing
programs on his computer was set to automatically delete his
search history when closed. Having failed to marshal this
apparently incriminating evidence, Mitchell does not explain why
it, in combination with evidence Mitchell does marshal, is
insufficient to support a finding of knowledge. Accordingly, his
argument falls short of demonstrating that the jury’s verdict was
not supported by sufficient evidence.
¶33 In sum, even if we were to overlook Mitchell’s failure to
preserve this claim and to brief plain error on appeal, we
nevertheless would not agree that he has ferreted out a fatal flaw
in the evidence “so obvious and fundamental” that the trial court
committed plain error by not sua sponte discharging him at trial.
State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.

State v. Mitchell
5. We are aware that some federal circuits do not read Brady in this
way. See, e.g., United States v. Burke, 571 F.3d 1048, 1054 (10th Cir.
2009) (collecting cases and stating that “[i]t would eviscerate the
purpose of the Brady rule and encourage gamesmanship were we
to allow the government to postpone disclosures until the last
minute, during trial”). However, Pinder controls our decision here
and we do not look beyond it.
20110723-CA 15 2013 UT App 289
IV. Brady Violation
¶34 Next, Mitchell argues that the State violated its duty to
disclose exculpatory evidence as required by Brady v. Maryland, 373
U.S. 83 (1963). In Brady, the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or punishment.” Id. at 87. However, “[t]he evidence
at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,
281–82 (1999). The Utah Supreme Court has held that “a Brady
violation occurs only where the state suppresses information that
(1) remains unknown to the defense both before and throughout
trial and (2) is material and exculpatory, meaning its disclosure
would have created a reasonable probability that the result of the
proceeding would have been different.” State v. Pinder, 2005 UT 15,
¶ 24, 114 P.3d 551 (citation and internal quotation marks omitted).5
¶35 Less than two weeks before trial, Mitchell sent a
supplemental discovery request asking for the specific file names
and file paths for the files on which the State based its charges of
sexual exploitation of a minor. The State provided the information
a few days before trial. Mitchell argues that this information led to
evidence which “would have directly exonerated [him] by showing

State v. Mitchell
6. We presume our insertions capture the intended meaning of
these sentences in Mitchell’s brief, which read as follows: “The
(continued...)
20110723-CA 16 2013 UT App 289
that some of the files downloaded were downloaded while the
computer was in the custody of the investigators.” Mitchell also
asserts that he was not present when several of the files were
accessed.
¶36 Mitchell sought to admit this evidence through the
testimony of his expert and through alibi witnesses. However, the
trial court ruled that the additional expert testimony could not
come in because the notice of expert did not comply with the rules.
The trial court also ruled that due to the late notice, any alibi
evidence would be limited to Mitchell’s own testimony, should he
take the stand. See Utah Code Ann. § 77-14-2 (LexisNexis 2012)
(requiring notice of alibi to be given at least ten days before trial).
¶37 Mitchell has not carried his burden of demonstrating a Brady
violation. First, Mitchell does not contend that the evidence in
question was “unknown to the defense both before and throughout
trial.” See Pinder, 2005 UT 15, ¶ 24. Indeed, he acknowledges that
it was provided to him before trial.
¶38 Second, although Mitchell claims that the evidence “would
have created a reasonable probability that the result of the
proceeding would have been different,” see id., he does not explain
how. The gist of Mitchell’s claim, as we understand it, is stated in
this passage from his opening brief: “The State’s expert testified
that all these files had been viewed more than once as [they] were
in the recent document folders for November 14, 2006 and
November 15, 2006.” He continues, “However, the police officer[s]
picked up Donald [Mitchell] from the [golf course] on November
14, 2006 at 4:40 p.m. and confiscated his computer that night.
Shortly [afterwards,] he was in an accident.” Thus, he concludes,6

State v. Mitchell
6. (...continued)
State’s expert testified that all these files had been viewed more
than once as there were in the recent document folders for
November 14, 2006 and November 15, 2006. However, the police
officer picked up Donald White from the Gold Course on
November 14, 2006 at 4:40 p.m. and confiscated his computer that
night. Shortly after he was in an accident.” No one named Donald
White is mentioned in the record.
7. The State’s expert also noted that the system registry recorded
that the last time someone had logged on to the computer was
November 15, 2006. He then explained that, because the registry
used a “Universal Time Code” offset from Mountain Daylight Time
by seven hours, the last login had actually occurred at 5:37 p.m.
MDT on November 14, 2006.
20110723-CA 17 2013 UT App 289
he could not have accessed the files on November 14 or
November 15.
¶39 However, the State’s expert did not testify that the files were
accessed on November 15, 2006. He testified that he had
determined that one of the files had been opened “a minimum of
two times” based on registry information showing that “prior to
August 8th the file was opened, and then back in November, prior
to November 15th, it was opened again.” (Emphasis added.) In any7
event, the fact that Mitchell was not present when some files were
downloaded does not prove that he had not earlier requested the
downloads. As the testimony at trial demonstrated, Mitchell need
not have been present when previously-requested downloads took
place. And the State’s expert also testified that the files’ access dates
could refer to any number of actions besides opening a file, such as
running a virus scan. Such actions would not necessarily need a
user present. Mitchell has thus failed to demonstrate that the
supposedly exculpatory evidence would have created a reasonable

State v. Mitchell
8. Ordinary preserved error shares this same prejudice standard.
See State v. Knight, 734 P.2d 913, 919 (Utah 1987) (explaining “that
an error warrants reversal only if a review of the record persuades
the court that without the error there was a reasonable likelihood
of a more favorable result for the defendant” (citations and internal
quotation marks omitted)).
20110723-CA 18 2013 UT App 289
probability that the result of the proceeding would have been
different, especially in light of the evidence recounted above. See
supra ¶ 32.
V. Expert Testimony and Alibi Defense Limitations
¶40 Mitchell also challenges the trial court’s rulings limiting his
expert’s testimony and excluding alibi witnesses. He argues that
the trial court’s rulings constituted plain error and that the rulings
resulted from ineffective assistance of counsel. Plain error and
ineffective assistance of counsel “share a ‘common standard’ of
prejudice.” State v. McNeil, 2013 UT App 134, ¶ 42, 302 P.3d 844
(quoting State v. Litherland, 2000 UT 76, ¶ 31 n.14, 12 P.3d 92).
“Under either theory, a defendant must demonstrate that, absent
the error or deficient performance, there is a reasonable probability
of a more favorable result.” Id. (citation and internal quotation
marks omitted).8
¶41 As discussed above, Mitchell has not demonstrated that he
was prejudiced by the exclusion of evidence that the files were
downloaded when he was not present. Accordingly, his claims of
plain error and ineffective assistance of counsel cannot succeed.
¶42 Mitchell also asserts in his opening brief that “[t]here are
documents generated by the expert, not in the record, that if
admitted would tend to exonerate [him].” Yet Mitchell never
moved for a rule 23B remand to establish a record to demonstrate

State v. Mitchell
20110723-CA 19 2013 UT App 289
prejudice. See Utah R. App. P. 23B. “If a defendant is aware of any
‘nonspeculative allegation of facts, not fully appearing in the record
on appeal, which, if true, could support a determination that
counsel was ineffective,’ defendant bears the primary obligation
and burden of moving for a temporary remand.” State v. Litherland,
2000 UT 76, ¶ 16, 12 P.3d 92 (quoting Utah R. App. P. 23B). “Where
the record appears inadequate in any fashion, ambiguities or
deficiencies resulting therefrom simply will be construed in favor
of a finding that counsel performed effectively.” Id. ¶ 17. Mitchell
has not attempted to supplement the record with evidence tending
to show that he was prejudiced. Absent a showing of prejudice, he
is not entitled to relief.
VI. Continuance of Trial
¶43 Mitchell next contends that the trial court plainly erred by
failing to continue trial when, on the first day of trial, Mitchell
made his untimely second motion to suppress and his untimely
notice of alibi. To obtain relief under the doctrine of plain error, an
appellant must show that: “(i) [a]n error exists; (ii) the error should
have been obvious to the trial 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, or phrased differently, our
confidence in the verdict is undermined.” State v. Dunn, 850 P.2d
1201, 1208–09 (Utah 1993).
¶44 Mitchell does not claim that the trial court’s rulings violated
any rule of law. Rather, he claims that the obvious error that the
trial court should have noticed and corrected was his trial counsel’s
deficient performance. Mitchell cites no authority for the
proposition that ineffective assistance of counsel can constitute an
obvious trial error warranting reversal under the plain error
doctrine; the only case he refers to discusses generally a
defendant’s right to effective assistance of counsel. See Utah R.

State v. Mitchell
20110723-CA 20 2013 UT App 289
App. P. 24(a)(9) (requiring briefs to contain citation to and analysis
of authority). Furthermore, as explained above, Mitchell has not
demonstrated that he was harmed by the denial of the motion to
suppress or by the exclusion of alibi witness testimony. Therefore,
Mitchell has not demonstrated that the trial court plainly erred.
VII. Uncharged Offenses
¶45 Finally, Mitchell contends that, under rules 403 and 404(b)
of the Utah Rules of Evidence, the trial court erred by admitting
testimony that his computer contained uncharged images of child
pornography. Mitchell did not adequately preserve this issue for
appeal. To preserve an issue for appeal, “[t]rial counsel must state
clearly and specifically all grounds for objection.” State v. Larsen,
865 P.2d 1355, 1363 n.12 (Utah 1993); see also Utah R. Evid.
103(a)(1)(B). “[T]he issue must be presented to the trial court in
such a way that the trial court has an opportunity to rule on that
issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.
“[W]e will not consider an issue brought for the first time on appeal
unless the trial court committed plain error or exceptional
circumstances exist.” State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551
(citation and internal quotation marks omitted). “When a party
seeks review of an unpreserved objection, we require that the party
articulate an appropriate justification for appellate review.” Id.
Thus, we do not address unpreserved issues not shown to be
within an exception to the preservation rule.
¶46 On redirect, the prosecutor asked the State’s expert about
“ten picture files and ten video files” found on the computer that
he had identified as possible child pornography. Mitchell’s counsel
interjected, “I’m going to object to the relevance of the extra
images. We’re having to defend on ten, and we’re now talking
about all sorts of images that he could have done this or that to. We
don’t have any way of preparing a defense on those additional
[files].” The trial court asked the prosecutor, “Where are you going

State v. Mitchell
20110723-CA 21 2013 UT App 289
with that?” The prosecutor responded that, although the State had
pursued charges relating to only five of the files, the challenged
testimony was relevant to counter Mitchell’s earlier suggestion that
“there were only these five files” containing child pornography on
his computer. The trial court overruled the objection, and the
expert further testified that “there weren’t any more than those 20
files” and that “it’s questionable whether or not” the fifteen
uncharged files actually depicted child pornography, because they
were not introduced into evidence for the jury to consider.
¶47 Mitchell objected only on relevance grounds, signaling his
view that the evidence lacked any probative value. See Utah R.
Evid. 401, 402. And in the following discussion, Mitchell, the
prosecutor, and the trial court all treated the objection as an
objection on relevance grounds. But Mitchell does not argue
relevance on appeal. Instead he argues that the trial court erred
under rules 403 and 404(b) of the Utah Rules of Evidence. “[R]ule
403 expressly permits the trial court to exclude relevant evidence.
Accordingly, a relevance objection does not preserve a claim
[under rule 403] that the evidence, even if relevant, should be
excluded because its probative value is substantially outweighed
by the danger of unfair prejudice.” State v. Davis, 2013 UT App 228,
¶ 72, 311 P.3d 538 (citation omitted). Likewise, claims of improper
use or lack of notice under rule 404(b) are not preserved by a
relevance objection. Defense counsel used none of the words or
phrases commonly associated with rules 403 and 404(b), such as
“unfair prejudice,” “prior bad acts,” “propensity,” or “improper
purpose.” Accordingly, Mitchell did not “state . . . all grounds for
objection,” Larsen, 865 P.2d at 1363 n.12, nor did he present the
issue “to the trial court in such a way that the trial court ha[d] an
opportunity to rule on that issue,” 438 Main St., 2004 UT 72, ¶ 51.
Because these claims of error are unpreserved and Mitchell claims
no exception to the preservation requirement, we do not address
them.

State v. Mitchell
9. We have addressed in some detail Mitchell’s principal
contentions on appeal. He has cursorily raised a few additional
issues. Having considered them, we conclude they lack merit, and
we decline to address them further. See Carter v. State, 2012 UT 69,
¶ 16 n.7, 289 P.3d 542 (“[T]his [c]ourt need not analyze and address
in writing each and every argument, issue, or claim
raised . . . . Rather, it is a maxim of appellate review that the nature
and extent of an opinion rendered by an appellate court is largely
discretionary with that court.” (ellipsis in original) (citation and
internal quotation marks omitted)).
20110723-CA 22 2013 UT App 289
CONCLUSION
¶48 Mitchell has neither challenged the basis of the trial court’s
ruling that his motion to suppress was untimely nor shown that his
counsel was constitutionally ineffective for failing to timely file that
motion. Furthermore, he has failed to demonstrate that the trial
court erred in denying an earlier motion to suppress on the basis of
the inevitable discovery doctrine. Mitchell did not preserve his
insufficiency claim and does not invoke a recognized exception to
the preservation requirement. He has not factually demonstrated
a Brady violation nor has he explained how one could reasonably
have led to a different result at trial. Mitchell has not shown
prejudice resulting from the trial court’s rulings limiting his expert
and alibi witnesses’ testimony. For this reason, Mitchell is not
entitled to relief under the theory that the trial court plainly erred
when it refused to continue the commencement of trial. Finally,
Mitchell did not preserve a claim under rules 403 or 404(b) of the
Utah Rules of Evidence relating to evidence of uncharged images
of child pornography.9
¶49 Affirmed.