State v. Gaines

2026 UT App 44

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JAMES ERWIN GAINES,
Appellant.

Opinion
No. 20240045-CA
Filed March 26, 2026

Second District Court, Ogden Department
The Honorable Cristina P. Ortega
No. 211900210

Emily Adams, Freyja Johnson, and
Rachel Phillips Ainscough, Attorneys for Appellant
Derek E. Brown and Marian Decker,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 Using specialized software known as “Torrential
Downpour,” officers got a hit indicating that two specific groups
of files of child pornography—or child sexual abuse materials
(CSAM)—had been downloaded onto devices linked to James
Erwin Gaines. But when officers arrived at Gaines’s house and
searched his devices, they were unable to locate the CSAM files
they thought they’d find. Still, based on the evidence they had
from Torrential Downpour, and based on a number of potentially
incriminating admissions Gaines made during a police interview,
the State charged Gaines with twelve counts of sexual exploitation
of a minor. After a trial, a jury convicted Gaines as charged.
State v. Gaines

¶2 Gaines appeals his convictions, first challenging the trial
court’s denial of his motion to prevent the State from presenting
evidence about what Torrential Downpour had indicated related
to his devices, as well as his motion for additional discovery
related to Torrential Downpour. Gaines also contends that his
trial attorney rendered constitutionally ineffective assistance in
various respects. While we reject the ineffective assistance claims,
we find merit in Gaines’s first argument and conclude that, on this
record, the trial court erred in allowing the State to present
evidence of Torrential Downpour’s results.

¶3 But because Gaines admitted that he had knowingly
possessed one of the two groups of files, this error harmed Gaines
only with respect to the other group of files. We therefore affirm
Gaines’s seven convictions related to the file group he admitted
to knowingly possessing, but we reverse his five convictions
related to the other file group, and we remand this case to the trial
court for further proceedings, including potentially a new trial, on
those five counts.

BACKGROUND 1

The Incident

¶4 In April 2019, a police officer (Sergeant) was running the
Torrential Downpour 2 software when he received an alert that it

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. This case involves several terms with which readers may not be
familiar, including “BitTorrent,” “torrent,” and “Torrential
Downpour.” As explained by witnesses at trial, “BitTorrent” is a
(continued…)

20240045-CA 2 2026 UT App 44
State v. Gaines

had recorded an IP address that had downloaded some known
CSAM, including a group of files collectively named “Tropical
Cuties.” Sergeant also learned that the IP address was assigned to
a local internet service provider. Sergeant subpoenaed the
provider and discovered that the IP address in question was
assigned to Gaines. After that, Sergeant did “some investigation”
to determine where Gaines lived and “to identify who live[d] in
the home” and their “patterns of life,” because if he was “going to
serve a warrant,” he wanted Gaines to be home at the time. This
investigation continued for about two months.

¶5 During this time, Sergeant continued “running Torrential
Downpour” and received notice of “other downloads from that
same IP address” that were flagged as CSAM. One of those
downloads was a set of files named “Siberian Mouse,” which
Sergeant recognized as a “known series” of CSAM. The folder
names within the Siberian Mouse files “were all in Russian” and
contained photos of “the same female,” who was identified as
“Mashka.” Sergeant “viewed each file” and confirmed that the
files contained CSAM.

¶6 Sergeant then obtained a search warrant and—
accompanied by members of the FBI’s Child Exploitation Task
Force—served that warrant at Gaines’s house. When Sergeant and
the other officers arrived, Gaines answered the door and agreed
to speak to Sergeant. After reading Gaines his Miranda rights,
Sergeant and another officer (Detective) interviewed Gaines,
while the other officers searched the house.

peer-to-peer file-sharing program available to anyone on the
internet. A “torrent” is a file or folder that is downloaded through
use of a file-sharing network, such as BitTorrent. And “Torrential
Downpour” is a law-enforcement-specific version of BitTorrent
that allows law enforcement to become one of the “peers” and
search for known CSAM files on peer devices.

20240045-CA 3 2026 UT App 44
State v. Gaines

The Police Interview and the Search of Gaines’s Devices

¶7 During the interview, Detective informed Gaines that he
wanted to discuss “the child porn [that was] being downloaded
and viewed.” Gaines acknowledged that he had a pornography
habit, which he characterized as “disgusting and embarrassing,”
but he said it was how he had been “coping with shit.” Gaines
acknowledged that he had downloaded quite a bit of
pornography, but he claimed it had all been legal post-pubescent
pornography, saying that “prepubescent sounds crazy.” He
characterized himself as an “ephebophile”—a person who is
attracted to post-pubescent but still teenage girls. He clarified, “I
will admit that I’m attracted to girls in the teenage years . . . . [Y]ou
know, . . . 17, 16, something like that . . . . But prepubescent, I don’t
have any attraction. That shit’s just gross. It doesn’t make sense.”

¶8 Gaines told Sergeant and Detective that during certain
times in his life, he had looked at “teen porn,” but he claimed that
none of it had been “illegal” and that he was just looking for “the
illusion of it, you know, . . . it just says teen.” He stated that he
was “absolutely certain” that some of his searches for “teen porn”
would “show in [the officers’] software.” Specifically, Gaines
admitted that he had searched for “16Y” images, later explaining
that “16Y” meant “[s]ixteen year old or something like that.”

¶9 Gaines also indicated that his knowledge of computers was
higher than “the average guy.” He claimed to have “invented
software for fighter jets” and to have worked in “IT for ten years
before [he] did engineering.” When asked if he used “file sharing”
or “peer to peer” software, Gaines responded, “Are you talking
about, like, torrents and stuff?” Sergeant answered in the
affirmative, and Gaines continued, “Yeah. Torrents, RapidShare,
and things like that.”

¶10 Sergeant asked Gaines to explain what he meant when he
said he used “peer to peer” and “torrents.” Gaines responded that
he understood how torrents worked and, unbidden, said, “Okay.
I know what you’re talking about. This is that . . . Russian thing.”

20240045-CA 4 2026 UT App 44
State v. Gaines

Sergeant asked Gaines to “talk about that,” and Gaines
responded, “Okay. Yeah. That one has some bad stuff, and I
deleted most of it and kept . . . . [S]o there is a girl, she’s probably
. . . like, 25 now and she still does porn. She did some shit when
she was a little younger.” Sergeant asked if Gaines remembered
the name of it, and Gaines responded, “Mashka something. And
I didn’t realize, like, how young that went, but I got a porn . . .
torrent or whatever with her shit in there, and it had a bunch of
stuff. I can’t read it. It’s in Russian.” But he acknowledged that, in
those files, he “did see some disturbing stuff.” And later in the
interview, when discussing “[t]he extent of . . . the child stuff,”
Gaines stated, “[T]he only intentional things that I would have on
there would be that Russian thing.”

¶11 Sergeant asked if Gaines remembered any files called
“Tropical Cuties.” Gaines stated that he knew of a file with that
name and had even “searched for it,” but he denied having
downloaded it, stating, “I don’t believe that I did, but it’s possible
I did download it.” He explained, “[S]ometimes you see a cute
teenage girl. And, yeah, I do like some of the teenybopper, you
know, model websites or whatever.” He claimed that what he had
downloaded “appeared to be . . . legit,” but that “somehow [he]
ended up on one of those torrent websites” and “had a search hit
for ‘Tropical Cuties.’” He claimed that, based on the descriptions
of the file, he “didn’t want to touch it,” and he asserted that he
was “still hoping to find” what he called “legit” pornography and
that he “didn’t realize they had other things going on at that
company.” In response, Sergeant offered his view that the
Tropical Cuties file “ha[d] some pretty clearly prepubescent girls
in it,” and Gaines did not disagree, saying, “Yeah, it sounded like
it. So . . . unless I was drunk and don’t remember, I did not
download that.” But he later hedged, saying that he “might have”
downloaded it but that he had been “hoping” not to.

¶12 Sergeant then asked Gaines to identify the computer he
used to “download . . . torrents on,” and Gaines said that the only
one would be his laptop computer located in the garage. Sergeant

20240045-CA 5 2026 UT App 44
State v. Gaines

then asked if the hard drive connected to that computer was
password-protected, and Gaines confirmed that it was. Gaines
told the officers that he didn’t use the same password for all his
devices and that he had “NSA-level encryption on everything.”
He indicated that he didn’t want to share his passwords with the
officers because in the past “people [had] gotten out of these
cases.” Gaines again said, however, that CSAM might be on his
devices, stating, “[L]ike I told you, the Mashka one . . . . [S]he’s
attractive. I didn’t know they went back that young.” He further
explained, “I know that I do have at least Mashka, but she’s not
prepubescent. But that torrent came with prepubescent stuff, so
that will be there.”

¶13 Eventually, Gaines gave law enforcement some of his
passwords and worked with an agent (Agent) to verify that the
passwords were accurate. Agent confirmed that he was able to
look at Gaines’s “file history . . . [and] log history” for the laptop
in the garage. Agent verified that BitTorrent was on Gaines’s
laptop and noticed the command line “banging teens,” but he did
not access that file at that time. Multiple photos were taken of the
laptop screen, including a photo of a file with two nude females,
one of whom Sergeant and Agent later testified appeared to be
“prepubescent.” At that point, while still at Gaines’s house, Agent
“believed . . . he had . . . access” to the laptop and the hard drive,
so he “shut it down” and left the scene, intending “to have
someone more qualified than [he was] review the data.”

¶14 Later, officers sent the seized devices to a forensics
laboratory to be analyzed. At the lab, an analyst discovered that
the laptop taken from Gaines’s garage and its external hard drive
could not be examined because they were encrypted and that the
passwords Gaines had provided could not bypass the encryption.
The analyst was able to view the contents of a small portion of the
laptop’s hard drive but was not able to view the contents of the
external hard drive. Sergeant tried to help, and he “attempted
multiple passwords without success.” When the analyst tried to
bypass the encryption, there was an error message recommending

20240045-CA 6 2026 UT App 44
State v. Gaines

that he back up the data and warning him that, if he proceeded,
there was a “high percentage” chance that a “catastrophic loss of
data” would occur. The analyst was thus unable to examine the
majority of the laptop’s hard drive or any of the external hard
drive. The lab examined the remaining devices and found no
additional evidence of CSAM, other than ten “jokes or memes
involving [CSAM],” which “were not [CSAM] per se.”

The Motion to Exclude the Torrential Downpour Evidence

¶15 The State eventually charged Gaines with twelve counts of
sexual exploitation of a minor—five counts for the Tropical Cuties
files and seven counts for the Siberian Mouse files. Each count
required the State to prove that Gaines “knowingly . . .
possess[ed]” or “intentionally . . . view[ed]” CSAM. Utah Code
§ 76-5b-201(1) (2019). As the case proceeded toward trial, Gaines’s
attorney (Counsel) filed a motion, grounded in rule 702 of the
Utah Rules of Evidence, asking the court to “limit [Sergeant’s]
testimony to the data, principles, and methods that can clearly be
shown to the court [to be] reliable.”

¶16 The court held an evidentiary hearing on the motion,
where both Sergeant and a supervisory agent (Supervisor)
testified about having had previous success using Torrential
Downpour despite not knowing how it worked. Sergeant testified
to having used Torrential Downpour in “around 30 to 40 [cases]
in the past five years,” and he stated that CSAM was usually, but
not always, later found in the places where Torrential Downpour
indicated it would be found. When asked about how often no
CSAM was found, Sergeant responded, “I don’t know the exact
number, but it’s . . . common enough that it happens.” Sergeant
theorized that the reason officers sometimes don’t find CSAM
where expected is that people will “encrypt their devices” or
“delete everything.” Supervisor similarly testified to using
Torrential Downpour in more than a hundred cases with much
success, though there were also times when he didn’t find CSAM
where Torrential Downpour indicated it would be found.

20240045-CA 7 2026 UT App 44
State v. Gaines

Supervisor further stated that he was “sure” that there existed
“studies to determine [Torrential Downpour’s] accuracy” but that
he was not “aware of any” “[o]ff the top of [his] head.” After the
hearing, the court asked both parties to provide additional
briefing, and it scheduled oral argument.

¶17 In his brief, Gaines clarified that his challenge was not
about what Sergeant “may have seen and recorded” but, instead,
went to “the reliability of Torrential Downpour to identify the
source of any alleged download as coming from his IP address.”
He asserted that neither Sergeant nor Supervisor “could really
explain HOW the Torrential Downpour [a]pplication worked,”
and he argued that Torrential Downpour is “not reliable enough
to determine that any alleged [CSAM] was downloaded or shared
by [Gaines] without evidence of that [CSAM] being found on his
computer as the result of a search warrant.” The memorandum
cited and attached a study on applications like Torrential
Downpour, which indicated that those applications had a
potential for error. Gaines also submitted an affidavit from a
retained expert who was willing to testify that “without any
published testing or validation of Torrential Downpour software,
[he could not] confirm its reliability, nor [could he] competently
prepare [Counsel] to cross-examine any witnesses testifying
to the use of Torrential Downpour to identify [Gaines’s] IP
address.”

¶18 After full briefing and oral argument, the trial court denied
Gaines’s motion. It acknowledged that Sergeant had testified that
he didn’t “know the software,” but it concluded that Sergeant
would be allowed to testify about his use of the software and what
the results of the search were. The court analogized Sergeant’s
testimony about Torrential Downpour’s results to testimony
about Intoxilyzer results in DUI cases, and it observed that an
“officer . . . trained to operate an Intoxilyzer . . . does not have the
knowledge to testify about” the reliability of the machine but
could still testify about the results of the test. The court also noted
that Gaines’s motion was limited only to Sergeant’s testimony,

20240045-CA 8 2026 UT App 44
State v. Gaines

and it thus ruled that the motion was “attacking the wrong
person.” The court assured Gaines that he was “more than
entitled to bring forth a motion attacking [Torrential Downpour’s]
reliability” but stated that the motion he had filed “misse[d] the
mark.” The court ruled that Sergeant was not “excluded as a
witness . . . because [he] . . . is trained and can testify as a witness
as to his operation of” Torrential Downpour.

The Additional Discovery Motion

¶19 Next, Gaines filed a motion asking the trial court to compel
the State to provide him with “a copy of the Torrential Downpour
software” as well as “training materials used to train law
enforcement in the use of Torrential Downpour,” so that his
retained expert could examine its reliability. Gaines asked that the
State be required to “disclose . . . any and all evidence favorable
to him if the evidence is material to guilt or to punishment,” which
he asserted included the requested evidence. (Citing Brady v.
Maryland, 373 U.S. 83, 87 (1963).) He cited multiple cases where a
criminal defendant was entitled to examine a copy of a
government software program “used to investigate child
pornography offenses.” He argued that the requested discovery
was material “because the [CSAM] files that Torrential Downpour
purportedly downloaded from his computer hard drive were
never found on any of his electronic devices,” rendering the
evidence of what Torrential Downpour had reportedly found on
his devices essential to the State’s case. Gaines thus asserted that
“it [was] critical to [his] defense . . . to determine [Torrential
Downpour’s] reliability and accuracy in identifying the files that
[he was] charged with.”

¶20 In response, the State argued that the evidence Gaines
sought was not material and that—for proprietary reasons—
Gaines should not be allowed to discover information regarding
Torrential Downpour. In support of its argument, the State cited
multiple cases where federal courts “addressed the discovery of

20240045-CA 9 2026 UT App 44
State v. Gaines

law enforcement investigative software and . . . denied motions
similar to [this one].”

¶21 After briefing and argument, the court denied Gaines’s
motion, reasoning that while no CSAM was found on Gaines’s
devices, “a laptop and a hard drive [were] encrypted” and
therefore could not “be forensically examined,” and offering its
view that “this cuts against [Gaines’s] argument that the State
[was] in possession or could be in possession of information
helpful to his defense.” Counsel had previously argued that “if
the whole issue [was] that we need to test” the parts of the laptop
and hard drive “that haven’t been tested yet, . . . we can do that,”
but the court still denied the motion, reasoning that Gaines’s
motion was “insufficient to meet the requisite . . . threshold.”

The Trial

¶22 At trial, the State needed to prove beyond a reasonable
doubt that Gaines “knowingly . . . possess[ed]” or “intentionally
. . . view[ed]” the relevant CSAM files. See Utah Code § 76-5b-
201(1) (2019). In support of its case, the State presented testimony
from multiple law enforcement officers, admitted multiple photos
of Gaines’s laptop screen, and played nearly an hour of bodycam
footage from Sergeant’s interview with Gaines. During Sergeant’s
testimony, he discussed Torrential Downpour’s search results, as
related to Gaines’s IP address, and he explained how peer-to-peer
sharing worked in this context. During Supervisor’s testimony, he
explained that Torrential Downpour is designed to look for
computers that are sharing files known to be CSAM.

¶23 The State also offered testimony, from both Sergeant and
Agent, about its Exhibit 35, which was a photo of Gaines’s laptop
screen that depicted two nude females. Both Sergeant and Agent
offered their opinions that one of the nude females in the photo
appeared to be prepubescent. Gaines was not charged with any
crime related to Exhibit 35, but the State argued that because
Gaines had Exhibit 35 on his computer, it was more likely that
Gaines also had the charged CSAM files on his computer too.

20240045-CA 10 2026 UT App 44
State v. Gaines

Counsel never objected to the officers’ opinions about the age of
the female in the photo.

¶24 In his defense, Gaines called his retained expert to the
stand, who testified that there were “inconsistencies” in the file
sizes from the “log files that [were] generated by Torrential
Downpour.” In particular, the expert testified that multiple files
in Torrential Downpour’s log showed that “only a small part” of
the file had been “downloaded from the IP address.” This led the
expert to hypothesize that Torrential Downpour may have erred
in linking the CSAM to Gaines’s IP address.

¶25 In his closing argument, Counsel asserted that Gaines had
never actually confessed to downloading CSAM, arguing that
Gaines’s statements about the Siberian Mouse files indicated that
he had kept only adult pornography. Counsel also reminded the
jury that Gaines had admitted to searching for the Tropical Cuties
files but did not admit to downloading those files. In its closing
argument, the State reminded the jury that evidence from
Torrential Downpour linked the alleged CSAM to Gaines’s IP
address and that Gaines’s interview with Sergeant contained
multiple incriminating admissions, including that he had
“intentionally downloaded . . . the Russian file.” It also reminded
the jurors that the State had not charged Gaines with any crime
related to Exhibit 35.

¶26 After deliberation, the jury convicted Gaines as charged on
all twelve counts.

ISSUES AND STANDARDS OF REVIEW

¶27 Gaines now appeals, and he asks us to consider two issues.
First, he contends that the trial court erred by allowing the State
to present evidence of Torrential Downpour’s search results. “We
review a court’s decision to admit evidence for abuse of
discretion.” State v. King, 2024 UT App 151, ¶ 13, 559 P.3d 96
(cleaned up). “In the event that the trial court admits evidence in

20240045-CA 11 2026 UT App 44
State v. Gaines

error, we will not disturb the outcome of a trial if the admission
of the evidence did not reasonably affect the likelihood of a
different verdict.” State v. West, 2023 UT App 61, ¶ 15, 532 P.3d
114 (cleaned up). Gaines “bears the burden of showing that [he]
was harmed by the trial court’s error.” Id. (cleaned up).

¶28 Second, Gaines argues that Counsel rendered ineffective
assistance. “When an ineffective assistance claim is raised for the
first time on appeal, it presents a question of law.” State v. Rivera,
2022 UT App 44, ¶ 21, 509 P.3d 257. Gaines acknowledges that
some of his ineffective assistance claims cannot be supported by
the evidence in the record, and with regard to these claims, he
seeks a remand pursuant to rule 23B of the Utah Rules of
Appellate Procedure to enable him to supplement the record with
evidence to support the claims. “A remand under rule 23B is
available only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support a
determination that counsel was ineffective.” State v. Tuinman,
2023 UT App 83, ¶ 53, 535 P.3d 362 (cleaned up).

ANALYSIS

I. Torrential Downpour Search Results Evidence

¶29 First, Gaines challenges the trial court’s decisions denying
his two motions regarding the Torrential Downpour search
results evidence. Gaines assails the court’s decision to deny his
motion to exclude the evidence as unreliable, as well as the court’s
decision to block him from obtaining further information about
Torrential Downpour. We address these challenges in turn.

A. Motion to Exclude Evidence of Search Results

¶30 In addition to contesting Gaines’s arguments on the merits,
the State argues that Gaines failed to preserve for appellate review
his challenge to the trial court’s order denying his motion to
exclude the Torrential Downpour evidence. We address the

20240045-CA 12 2026 UT App 44
State v. Gaines

State’s preservation argument first and reject it, and we then
proceed to discuss the merits of Gaines’s challenge.

1. Preservation

¶31 “Under our preservation rule, any issue brought on appeal
must be sufficiently raised to a level of consciousness before the
trial court such that the court has an opportunity to rule on it.”
State v. Repsher, 2025 UT App 50, ¶ 34, 568 P.3d 1095 (cleaned up).
When it comes to preservation of an issue through a motion, “it is
the substance, not the labeling, of a motion that is dispositive in
determining the character of the motion.” Bishop v. GenTec Inc.,
2002 UT 36, ¶ 28, 48 P.3d 218 (cleaned up).

¶32 Here, despite the motion being narrowly titled and at least
nominally aimed only at Sergeant’s testimony, in both the written
motion and during oral argument, Gaines sufficiently articulated
the true scope of his challenge: that he wanted the trial court to
exclude all evidence of Torrential Downpour’s search results. On
the first page of the motion, Gaines requested that “the
information allegedly obtained by [officers] resulting from an
internet search performed using [Torrential Downpour] be
limited to what can be proven reliable.” Gaines repeated this
request in his supplemental brief. Later in that same brief, Gaines
was clear about the scope of his challenge, stating that he
“challenge[d] the reliability of Torrential Downpour to identify
the source of any alleged download as coming from his IP
address,” and asking that the State “not be allowed to use the
evidence of [Sergeant’s] download at trial.” Then, at the oral
argument on the motion, the court made statements indicating
that it was aware of the scope of the motion, clarifying with
Counsel that Gaines was “concerned about [the software’s]
reliability as far as being able to identify a specific IP address,”
and that Gaines was asking for an order forbidding State
witnesses from testifying about “the reliability of the
identification of the IP address and . . . how it ended up being
connected to” Gaines.

20240045-CA 13 2026 UT App 44
State v. Gaines

¶33 Under these circumstances, Gaines did enough to preserve
his challenge. He explained in his written motion and in his
supplemental brief what the scope of his request was, thus giving
the trial court every opportunity to rule on the challenge.

2. Merits of the Motion

¶34 We therefore proceed to consider the merits of Gaines’s
challenge to the court’s order denying his motion to exclude
the Torrential Downpour search results evidence. Gaines’s
argument for exclusion is grounded in rule 702 of the Utah Rules
of Evidence. That rule governs the admissibility of expert
testimony, and it requires that “a threshold showing” be made
“that the principles or methods that are underlying in the
testimony (1) are reliable, (2) are based upon sufficient facts or
data, and (3) have been reliably applied to the facts.” Utah R. Evid.
702(b). This threshold showing may also be met through an
alternative path, “if the underlying principles or methods . . . are
generally accepted by the relevant expert community.” Id.
R. 702(c).

¶35 With regard to his motion, Gaines asserts that
the Torrential Downpour search results evidence was
expert testimony within the scope of rule 702; that the State,
as the proponent of that evidence, bore the burden of
demonstrating that the evidence was reliable; and that the
State failed to meet that burden here. In response, the State
concedes the first two parts of Gaines’s argument: that the
Torrential Downpour search results evidence falls within the
ambit of rule 702 and that the State (as the proponent of the
evidence) bears the burden of demonstrating reliability, see State
v. Peraza, 2020 UT 48, ¶ 38, 469 P.3d 1023 (“The proponent of the
expert testimony has the burden to make [the] threshold showing
. . . .” (cleaned up)).

¶36 But the State contests Gaines’s assertion that it failed to
meet that burden. First, the State asserts that—while the trial court
did not discuss the rule 702(c) alternative path—we can affirm on

20240045-CA 14 2026 UT App 44
State v. Gaines

that alternative ground here because Torrential Downpour is
generally accepted in the relevant expert community. Next, the
State asserts that the trial court correctly determined that the rule
702(b) reliability showing was met here. We discuss each of these
arguments in turn and conclude that—while Torrential
Downpour might well be both reliable and generally accepted—
the State failed to actually show either of those things in this case.

a. Rule 702(c)

¶37 The State first asks us to affirm the trial court’s order on the
alternative ground that Torrential Downpour is generally
accepted in the relevant community. An appellate court has
discretion “to affirm a judgment on an alternative ground if it is
apparent in the record.” Olguin v. Anderton, 2019 UT 73, ¶ 20, 456
P.3d 760 (cleaned up). For a ground or theory to be apparent in a
record, that record “must contain sufficient and uncontroverted
evidence supporting the ground or theory to place a person of
ordinary intelligence on notice that the prevailing party may rely
thereon on appeal.” Id. (cleaned up). In this case, the State’s
proffered alternative ground is not apparent in the record.

¶38 During the briefing and argument process associated with
Gaines’s motion to exclude, the State never argued—or tried to
prove—that Torrential Downpour was generally accepted in the
relevant expert community. By contrast, Gaines argued in his trial
court briefs that Torrential Downpour was not generally accepted
in the relevant community, and—in resisting Gaines’s motion to
exclude—the State did not attempt to counter this argument or
present evidence to the contrary. Nevertheless, here on appeal the
State points to testimony from Sergeant and Supervisor indicating
that they used Torrential Downpour regularly and were trained
on its use and operation, and the State argues that “[l]aw
enforcement’s repeated use of Torrential Downpour in [its] peer-
to-peer cases fits squarely within rule 702(c) because it shows
[that] the software is generally accepted by the relevant expert
community—peer-to-peer investigators.” This is simply not

20240045-CA 15 2026 UT App 44
State v. Gaines

enough for us to conclude that Torrential Downpour’s general
acceptance is apparent on the record in this case.

¶39 For purposes of our discussion, we will assume—without
deciding—that the relevant expert community for evaluating the
general acceptance of Torrential Downpour consists of law
enforcement officers who investigate CSAM crimes. But even
indulging this assumption, the record submitted to us does not
sufficiently support the conclusion that this community, as a
whole, generally accepts Torrential Downpour as reliable. In this
case, no witness was asked whether Torrential Downpour is
generally accepted in any community of law enforcement officers,
and no witness offered any testimony on the subject. While two
officers from Utah testified that they regularly use the software,
no testimony was given about, for instance, whether those officers
are required to use Torrential Downpour (as opposed to other
software applications), how often other officers use Torrential
Downpour, or whether such use is limited to these officers’
department or to the State of Utah (as opposed to used nationally).

¶40 If Torrential Downpour really is generally accepted in the
law enforcement community, it shouldn’t be difficult to make that
showing. The problem here is that no such showing was made,
and we are not comfortable concluding by implication, merely
from testimony about two Utah officers’ regular use, that
Torrential Downpour is generally accepted in the community of
CSAM-enforcement officers. We therefore decline the State’s
invitation to affirm, on this alternative ground, the trial court’s
conclusion that Torrential Downpour is reliable.

b. Rule 702(b)

¶41 Next, the State asserts that it made the necessary threshold
showing by meeting the criteria of rule 702(b). Specifically, it
defends the trial court’s determination that evidence about
Torrential Downpour’s search results was reliable and based
upon sufficient facts or data that have been reliably applied to the
facts. See Utah R. Evid. 702(b). The trial court’s conclusion was

20240045-CA 16 2026 UT App 44
State v. Gaines

based largely on testimony from Sergeant and Supervisor that
they regularly use Torrential Downpour and that they usually—
but not always—find CSAM where Torrential Downpour
indicates that it will be found. From this testimony, the trial court
concluded that the threshold reliability showing had been made
and that the State would be able to present evidence—largely
through Sergeant—that Torrential Downpour had located CSAM
at an IP address registered to Gaines.

¶42 Gaines assails this conclusion, and he takes the position
that, in order to make the threshold reliability showing, the State
needed to present testimony about the inner workings of
Torrential Downpour from a software expert who could explain
how the program works. As Gaines sees it, because the State did
not present any such testimony, it failed to make the required
threshold showing of reliability.

¶43 We see shortcomings in the positions of both parties. We
disagree with Gaines’s assertion that the only way to show that
Torrential Downpour is reliable is to present testimony from a
software expert. But we also disagree with the State’s assertion
that it did enough here to make the threshold showing.

¶44 It seems to us that the State had several options at its
disposal through which it could have made the required
threshold showing that Torrential Downpour reliably identifies
CSAM at specific IP addresses. 3 First, it could have done as Gaines

3. Although some law enforcement officers investigating CSAM
crimes apparently regularly use Torrential Downpour, our
understanding is that the State is not often in the position of
having to demonstrate the reliability of this software. We suspect
that this is because, in most similar cases the State files, CSAM
ends up actually being found on the target devices during a
search. In such cases, Torrential Downpour’s search results are
used, at most, to show probable cause for a search warrant; those
(continued…)

20240045-CA 17 2026 UT App 44
State v. Gaines

believes is required by presenting testimony from a software
expert who could have explained how Torrential Downpour
works and who could have potentially testified, based on the
software science underlying the program, that its results are
reliable. The State took a similar approach in State v. Roberts, 2015
UT 24, 345 P.3d 1226. In that case, law enforcement officers used
a software program known as “the Wyoming Toolkit” to monitor
peer-to-peer file-sharing networks for CSAM. Id. ¶ 3. At an
evidentiary hearing, the State called “an expert on the Wyoming
Toolkit” to testify about its “methodologies”; this expert also
opined “that the Toolkit correctly identifies [CSAM] files with
extraordinarily high accuracy.” Id. ¶ 13. Based on this evidence,
the district court determined that the Wyoming Toolkit was
reliable, and the Utah Supreme Court affirmed that ruling. Id.
¶¶ 55–56. In this case, the State did not avail itself of that option;
it did not attempt to demonstrate Torrential Downpour’s
reliability through the testimony of a software expert. But this was
not the only option open to the State.

¶45 Alternatively, the State could have attempted to present
evidence of scientific studies demonstrating Torrential
Downpour’s reliability and accuracy. Indeed, Counsel asked
Supervisor about this during the evidentiary hearing. Specifically,
Counsel asked whether Supervisor knew about “any kind of
studies done to determine [Torrential Downpour’s] accuracy,”
and Supervisor responded by stating that he was “sure” that such
studies must have been done but that he was not aware of any

results are generally not needed or admitted to prove, at trial, that
the defendant had CSAM on his or her devices. Because the
CSAM files that Torrential Downpour identified were ultimately
not found on Gaines’s devices, this case presents the unusual
situation in which the Torrential Downpour search results form a
critical and substantive part of the State’s evidence at trial. Thus,
this case is one of those presumably rare cases in which it ends up
being necessary for the State to demonstrate the reliability of
Torrential Downpour’s search results.

20240045-CA 18 2026 UT App 44
State v. Gaines

“[o]ff the top of [his] head.” But the State did not follow up on this
line of questioning, and it made no effort to introduce evidence of
any specific studies that attempted to quantify the accuracy of
Torrential Downpour’s search results.

¶46 Despite presenting no testimony from a software expert
and no evidence of any pertinent studies, the State nevertheless
argues that it made the necessary threshold reliability showing by
presenting testimony of Sergeant and Supervisor, who each
testified to regular use of Torrential Downpour, and who each
testified that, in their experience, Torrential Downpour is accurate
most of the time. But these two officers’ use of Torrential
Downpour does not represent a large enough sample size to draw
meaningful conclusions about the software’s reliability over time;
indeed, the officers were not able to offer specific percentages of
success, and they acknowledged that, at least some of the time,
CSAM files ended up not being located where Torrential
Downpour indicated they would be found. Sergeant even stated
that such instances were “common enough.” To be sure, the
officers explained away these instances, asserting that sometimes
the devices are encrypted and can’t be searched, and that
sometimes the suspect is presumed to have deleted the files. But
this fact—that, in some percentage of cases significant enough to
be referred to as “common,” the CSAM files identified by
Torrential Downpour are not found on the devices associated
with the suspected IP address—is a problem for the State in this
context. And in our view, anecdotal testimony from two officers
that they regularly used Torrential Downpour and that it seemed
to work most of the time is just not enough to meet the
requirements of rule 702(b).

¶47 To be clear, we are not willing to categorically hold that a
proponent of Torrential Downpour search results evidence could
never make the required rule 702(b) reliability showing through
“use” evidence. Perhaps such a showing would be possible with
a better evidentiary record than this one. (Although such evidence
might be better suited toward demonstrating general acceptance

20240045-CA 19 2026 UT App 44
State v. Gaines

in the relevant community, pursuant to rule 702(c).) We hold
merely that the State failed to meet the required showing based
on the evidence it presented in this case.

¶48 We are also unpersuaded by the State’s attempt to
analogize this case to Eskelson ex rel. Eskelson v. Davis Hospital
& Medical Center, 2010 UT 59, 242 P.3d 762. In that case, a plaintiff
sued a doctor who allegedly perforated his child’s eardrum while
trying to extract an object lodged in the child’s ear. See id. ¶ 1. The
plaintiff retained an expert witness whose opinion—that the
doctor had breached the standard of care—“relied heavily” on the
child’s mother’s deposition and did not “identify a scientific
methodology beyond his expertise as a physician.” Id. ¶¶ 13–14.
The district court excluded the testimony as unreliable under rule
702, but our supreme court reversed, emphasizing that the
requirements of the threshold reliability showing “will vary
depending on the complexity of the particular case,” and holding
that the plaintiff’s expert had sufficient “experience with the
removal of foreign objects from the ears of children” to satisfy “the
threshold showing that his testimony was reliable.” Id. ¶ 15. In the
State’s view, Eskelson is “determinative” here and compels the
conclusion that the State has met the threshold showing through
the officers’ use testimony.

¶49 We disagree. At issue there was the relatively simple
procedure of removing an object from an ear. In that situation, an
expert with experience with that procedure was allowed to testify,
even without referencing a specific methodology, that the
defendant doctor had breached the standard of care. Id. What’s at
issue here, by contrast, is much more complex: the reliability of
the results of a seemingly complicated software program. And the
witnesses the State chose to testify about the results do not
understand how the software actually works and have no
information about its success rate over time and over adequate
sample sizes. We agree with Gaines that Eskelson is materially
distinguishable from the facts of this case.

20240045-CA 20 2026 UT App 44
State v. Gaines

¶50 We also find unhelpful the trial court’s effort to analogize
Sergeant’s and Supervisor’s testimony here to officers’ testimony,
in other cases, about Intoxilyzer results. To be sure, most officers
who testify about Intoxilyzer results likely don’t know the inner
workings of how the machine functions. But Intoxilyzer machines
have been around a long time and have long been considered
“universal[ly] accept[ed]” as reliable. See Murray City v. Hall, 663
P.2d 1314, 1320 (Utah 1983). Moreover, our legislature has passed
a statute creating “a presumption that the test results are valid and
further foundation for introduction of the evidence is
unnecessary.” Utah Code § 41-6a-515(3). On appeal, the State
directs our attention to no such statute regarding Torrential
Downpour, nor does it direct our attention to any judicial
opinions discussing the reliability of Torrential Downpour. And
in the absence of better evidence regarding Torrential
Downpour’s reliability, we agree with Gaines that the more apt
analogies here are to things like polygraph technology or artificial
intelligence—applications that often yield useful results but
which are not (or at least not yet) considered dependable enough
to have their results be routinely admitted as evidence against a
criminal defendant.

¶51 In the end, we agree with Gaines that, on this record, the
State did not present evidence sufficient to meet its burden of
making the threshold rule 702(b) showing of reliability regarding
the Torrential Downpour search results. Accordingly, we find
merit in Gaines’s challenge to the trial court’s decision to allow
testimony about those search results. On this record, that
testimony should not have been admitted.

c. Prejudice

¶52 Because we have concluded that evidence of the Torrential
Downpour search results was erroneously admitted at trial, we
must now address the question of prejudice: whether Gaines was
harmed by this error. “Not every trial error regarding the
admission of evidence requires reversal.” In re A.D.-C., 2024 UT

20240045-CA 21 2026 UT App 44
State v. Gaines

App 150, ¶ 33, 559 P.3d 984. “Even if the evidence was improperly
admitted, we will not overturn a conviction unless a reasonable
likelihood exists that the error affected the outcome of the
proceedings.” State v. Bilek, 2018 UT App 208, ¶ 19, 437 P.3d 544
(cleaned up). In assessing harm, we engage in a “counterfactual”
inquiry, and we “consider a hypothetical—an alternative universe
in which the trial went off without the error”—and ask whether a
different outcome would have been reasonably likely in that
counterfactual alternative trial. See State v. Ellis, 2018 UT 2, ¶ 42,
417 P.3d 86. “A reasonable likelihood requires a probability
sufficient to undermine confidence in the outcome.” State v. Klenz,
2018 UT App 201, ¶ 64, 437 P.3d 504 (cleaned up).

¶53 As we have already mentioned, the Torrential Downpour
search results evidence was an important part of the State’s case
against Gaines. After all, officers did not find the CSAM files on
Gaines’s devices that Torrential Downpour indicated they’d find.
So the State’s case on the twelve CSAM counts depended largely
on the Torrential Downpour evidence, as well as on the
potentially incriminating admissions Gaines made during his
interview with officers. As we discuss, the admissions Gaines
made regarding the Siberian Mouse files were more significant
than those he made regarding the Tropical Cuties files; indeed,
the Siberian Mouse admissions were all but determinative.
Accordingly, we conclude that the trial court’s error was harmless
as it concerns the Siberian Mouse files, but not as it concerns the
Tropical Cuties files.

¶54 We begin our prejudice analysis by refocusing on the terms
of the relevant statute. To obtain a conviction on the CSAM
counts, the State had to prove that Gaines either (a) “knowingly
. . . possess[ed]” or (b) “intentionally . . . view[ed]” the CSAM files
referenced in each count. See Utah Code § 76-5b-201(1) (2019).

¶55 With regard to the Siberian Mouse files, Gaines’s own
admissions make plain that he knowingly possessed CSAM.
Gaines brought up what he called the “Russian thing” unbidden,

20240045-CA 22 2026 UT App 44
State v. Gaines

before even being asked about it. He admitted that some of the
files Sergeant was looking for were named “Mashka something”
and that he knew they contained “some bad stuff.” He explained
that, regarding “child stuff,” “the only intentional things that [he]
would have on there would be that Russian thing.” And when
telling Sergeant what he expected law enforcement to find on his
laptop, he acknowledged that he had “at least Mashka” on there
and that he was aware that “that torrent came with prepubescent
stuff, so that will be there.” While Gaines did not admit to actually
viewing the “prepubescent” portions of those files, he admitted
that those files were on his laptop and that he knew they
contained CSAM. Through these statements, Gaines effectively
admitted to knowingly possessing CSAM in the form of the
Siberian Mouse files. So when we envision a counterfactual trial
in which the jury heard these admissions but did not hear about
the Torrential Downpour search results, we discern no reasonable
likelihood of a different outcome with regard to the charges
concerning the Siberian Mouse files.

¶56 Our conclusion is different, however, with regard to the
Tropical Cuties files. As to those files, Gaines’s admissions—while
certainly not ideal from his perspective—were not nearly as
damning. In his interview, Gaines admitted to searching for
Tropical Cuties and to getting “a search hit” for Tropical Cuties,
but he claimed that, after he read the torrent’s description, he
decided not to “touch it” because it may have had CSAM and he
was looking for what he called “legit” porn. Sergeant then told
Gaines that the Tropical Cuties file had “some pretty clearly
prepubescent girls in it,” to which Gaines responded, “Yeah, it
sounded like it. So . . . unless I was drunk and don’t remember, I
did not download that.” Thus, Gaines did not admit to either
knowingly possessing or intentionally viewing the Tropical
Cuties files. So with regard to these files, the State’s primary
evidence was the Torrential Downpour search results indicating
that the files would be found on devices linked to Gaines’s IP
address. In a counterfactual trial in which the Torrential
Downpour evidence was excluded, there is a reasonable

20240045-CA 23 2026 UT App 44
State v. Gaines

likelihood of a different result. Accordingly, the trial court’s error
in admitting the Torrential Downpour evidence was not harmless
as to those files.

¶57 In sum, then, the court’s error prejudiced Gaines with
regard to the five counts related to the Tropical Cuties files. On
this basis alone, we reverse Gaines’s convictions on those five
counts, and we remand this matter to the trial court for further
proceedings on those counts.

¶58 But because the court’s error in admitting the Torrential
Downpour evidence was harmless with regard to the seven
counts related to the Siberian Mouse files, we must proceed to
consider—or at least discuss—Gaines’s remaining arguments.

B. Motion for Additional Discovery

¶59 Gaines’s other challenge related to the Torrential
Downpour search results evidence concerns the trial court’s
denial of his motion asking the court to compel the State to
produce additional information about Torrential Downpour. In
that motion, Gaines asked for “a copy of the Torrential Downpour
software” as well as “training materials used to train law
enforcement in the use of Torrential Downpour,” so that his
retained expert could examine its reliability. Given our
conclusions regarding Gaines’s challenge to the court’s admission
of the Torrential Downpour search results evidence, see supra Part
I.A.2, we need not make an ultimate ruling on the merits of
Gaines’s related challenge to the court’s denial of his discovery
motion. 4 But because these issues may resurface on remand

4. Because we have reversed Gaines’s convictions on the Tropical
Cuties counts, Gaines’s challenge to the court’s discovery order is
moot as to those counts. And for the reasons already explained,
see supra Part I.A.2.c, due to his incriminating admissions, Gaines
would have almost certainly been convicted of the Siberian Mouse
(continued…)

20240045-CA 24 2026 UT App 44
State v. Gaines

related to a retrial regarding the Tropical Cuties counts, we
nevertheless elect to discuss some of the issues Gaines raises, in
an effort to provide guidance to the trial court. See State v. Low,
2008 UT 58, ¶ 61, 192 P.3d 867 (stating that, when “there are other
issues presented on appeal that will likely arise” on remand, we
may “exercise our discretion to address those issues for purposes
of providing guidance on remand”).

¶60 Specifically, we elect to address Gaines’s contention that
the trial court erred in concluding that the additional information
Gaines sought regarding Torrential Downpour was not material
to Gaines’s defense. In the court’s words, it was “not convinced
how the requested discovery [would] significantly help” Gaines’s
defense. This ruling was incorrect, given the way the issues were
presented to the trial court.

¶61 During criminal prosecutions, the State is obligated to
disclose “all evidence favorable to the defendant that is material
to guilt or punishment.” Utah R. Crim. P. 16(a)(1)(F). “Evidence is
material if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different.” Tillman v. State, 2005 UT 56, ¶ 29, 128 P.3d
1123 (cleaned up).

¶62 As already noted, see supra note 3, in many CSAM cases
information about Torrential Downpour could turn out not to be
material, because in most such cases CSAM is actually found on
the defendant’s devices. In those cases, the evidence that serves as
the centerpiece of the prosecution’s case is the fact that CSAM was
located on the defendant’s devices; evidence of what led officers,
in the first place, to suspect that CSAM would be found on those
devices is of diminished relevance.

counts in a counterfactual trial in which the jury heard none of the
Torrential Downpour search results evidence; thus, any error the
court might have made in denying Gaines’s discovery motion is
also harmless as to the Siberian Mouse counts.

20240045-CA 25 2026 UT App 44
State v. Gaines

¶63 But in cases like this one, where CSAM files were not
located on the defendant’s devices, and where the State’s case
depends, in significant part, on evidence of Torrential
Downpour’s search results, additional information about
Torrential Downpour may well turn out to be material. In
this context, the materiality inquiry will depend on several
variables, including (for instance) what specific additional
information is sought and which method (e.g., software expert,
studies, widespread usage) the prosecuting entity intends to
use in its attempt to meet rule 702’s threshold reliability
requirements. We of course do not know exactly how this issue
will present itself on remand, should the State elect to retry Gaines
on the Tropical Cuties counts and should Gaines elect to renew
his discovery motion. We are thus unable to offer any opinion on
whether any such renewed motion should (or should not) be
granted.

¶64 However, in this case, denial of such a motion cannot be
supported solely by the argument that Torrential Downpour
evidence is immaterial because officers—due to encryption and
lack of passwords—were unable to exhaustively search Gaines’s
devices for CSAM. It is, of course, the State’s burden to prove
Gaines guilty beyond any reasonable doubt. Here, that requires
the State to show that Gaines either “knowingly . . . possess[ed]”
or “intentionally . . . view[ed]” CSAM. See Utah Code § 76-5b-
201(1) (2019). And given Gaines’s constitutional right against self-
incrimination, “the government must ‘produce [its] evidence . . .
by its own independent labors’ and may not extract such evidence
from a person ‘by the cruel, simple expedient of compelling it
from his own mouth.’” See State v. Fullerton, 2018 UT 49, ¶ 17, 428
P.3d 1052 (quoting Miranda v. Arizona, 384 U.S. 436, 460 (1966)).
The trial court seemed to hold it against Gaines, when assessing
the materiality of the additional Torrential Downpour
information Gaines was seeking, that Gaines had not made more
of an effort to facilitate the State’s search of his encrypted devices.
Yet the State made no argument below, and makes no argument
now, that Gaines was obligated to make any such effort.

20240045-CA 26 2026 UT App 44
State v. Gaines

¶65 Thus, should Gaines renew his discovery motion on
remand, the court should consider it with this guidance in mind
and should not deny it merely because Gaines did not voluntarily
provide additional passwords to his encrypted devices.

II. Ineffective Assistance of Counsel

¶66 Next, Gaines argues that Counsel rendered ineffective
assistance. To succeed on such a claim, Gaines must make a two-
part showing. He “must show that [C]ounsel’s performance was
deficient,” which “requires showing that [C]ounsel made errors
so serious that [C]ounsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). And he “must show that the
deficient performance prejudiced the defense,” which “requires
showing that [C]ounsel’s errors were so serious as to deprive
[him] of a fair trial, a trial whose result is reliable.” Id. Gaines must
prove both elements. Id. “Because failure to establish either prong
of the test is fatal to an ineffective assistance of counsel claim, we
are free to address [such claims] under either prong.” State v. Popp,
2019 UT App 173, ¶ 25, 453 P.3d 657 (cleaned up). And if a claim
is infirm under one of the prongs, then “the claim fails and the
court need not address the other.” State v. Nelson, 2015 UT 62, ¶ 12,
355 P.3d 1031.

¶67 To establish deficient performance, Gaines must show that
Counsel’s “representation fell below an objective standard of
reasonableness.” Popp, 2019 UT App 173, ¶ 26 (cleaned up). In
evaluating the reasonableness of an attorney’s actions, courts will
often look to whether the actions the attorney took were
motivated by trial strategy. See State v. Scott, 2020 UT 13, ¶ 35, 462
P.3d 350 (“To be sure, the performance inquiry will often include
an analysis of whether there could have been a sound strategic
reason for [the attorney’s] actions.”). And while “the ultimate
question is not whether there was a possible strategic reason for
[the attorney’s] conduct, but instead whether that conduct was
objectively reasonable,” id., “[i]f it appears [that the attorney’s]

20240045-CA 27 2026 UT App 44
State v. Gaines

actions could have been intended to further a reasonable strategy,
a defendant has necessarily failed to show unreasonable
performance,” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871.

¶68 The second part of the test requires Gaines to show that he
was prejudiced by Counsel’s performance. “Prejudice exists when
there is a reasonable probability that the case would have had a
different outcome had trial counsel not performed deficiently.”
State v. Whytock, 2020 UT App 107, ¶ 28, 469 P.3d 1150. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome” of the proceeding. Strickland, 466 U.S.
at 694. In assessing prejudice, we “consider the totality of the
evidence before the judge or jury and then ask if the defendant
has met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.” State v.
Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 (cleaned up).

¶69 As already explained, see supra ¶ 52, “[p]rejudice analysis
is counterfactual.” State v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86. “To
decide whether a trial affected by error is reasonably likely to have
turned out differently we have to consider a hypothetical—an
alternative universe in which the trial went off without the error.”
Id.; see also State v. Soto, 2022 UT App 107, ¶ 25, 518 P.3d 157
(“Under a counterfactual analysis, we consider whether, in the
absence of the improperly admitted evidence, the likelihood of a
different outcome is sufficiently high to undermine our
confidence in the verdict.” (cleaned up)).

¶70 In this case, Gaines asserts that Counsel rendered
ineffective assistance in four different ways: by (1) not making a
motion for a directed verdict based on insufficient evidence;
(2) not impeaching Agent’s testimony at trial with his report; (3)
not playing more of the video of Gaines’s police interview for the
jury; and (4) not objecting to Sergeant’s and Agent’s opinions
about the age of a female in a photo (Exhibit 35) taken of Gaines’s
laptop screen. Gaines asserts that claims (1) and (4) can be
supported with evidence already in the record, but he

20240045-CA 28 2026 UT App 44
State v. Gaines

acknowledges that evidence supporting claims (2) and (3) is not
already in the record. On those claims, Gaines has filed a motion,
pursuant to rule 23B of the Utah Rules of Appellate Procedure,
asking us to remand this case to the trial court for further
proceedings aimed at supplementing the record with evidence to
support these claims. For the reasons discussed below, however,
we reject each of Gaines’s ineffective assistance arguments and
deny his rule 23B motion because Gaines has not demonstrated
that Counsel rendered constitutionally ineffective assistance. 5

A. Directed Verdict

¶71 First, Gaines argues that Counsel rendered ineffective
assistance by not making a motion for a directed verdict asserting
that the State had failed to present sufficient evidence to support
a conviction on the Siberian Mouse counts. We reject this
argument because Gaines has not demonstrated that Counsel
performed deficiently by opting not to make such a motion.

¶72 We begin our analysis by reiterating three relevant
principles. First, “a directed verdict is warranted only when,
viewed in the light most favorable to the State, no evidence exists
from which a reasonable jury could find beyond a reasonable
doubt that the defendant committed the crime.” State v. Pola, 2025
UT App 143, ¶ 35, 579 P.3d 407 (cleaned up), cert. denied, 581 P.3d
560 (Utah 2025). Second, “the decision not to pursue a futile
motion is almost always a sound trial strategy.” State v. Orton,
2024 UT App 140, ¶ 25, 558 P.3d 443 (cleaned up). And third, “the
propriety of directed verdict rulings must be evaluated on the
basis of the evidence actually presented, including even evidence
that is later, on appeal, determined to have been inappropriately
admitted.” State v. Hoffman, 2021 UT App 143, ¶ 21 n.6, 503 P.3d
538; cf. Franklin v. Stevenson, 1999 UT 61, ¶ 7, 987 P.2d 22

5. Given our ruling, see supra Part I.A, reversing Gaines’s
convictions on the Tropical Cuties counts, our analysis here
concerns only the Siberian Mouse counts.

20240045-CA 29 2026 UT App 44
State v. Gaines

(“Whether competent or incompetent, all evidence submitted
to the jury must be considered by the court in ruling on a motion
for judgment notwithstanding the verdict.” (cleaned up)). Thus,
even though we’ve concluded that the Torrential Downpour
evidence was improperly admitted, we must consider that
evidence as part of the universe of material that the trial court
would have been allowed to consider when ruling on any directed
verdict motion.

¶73 So here, not only could the jury consider Gaines’s damning
admissions about the Siberian Mouse files, see supra ¶ 55, it could
also consider the Torrential Downpour search results evidence.
With all of this evidence in the record, there was more than
enough evidence to support a conviction on the Siberian Mouse
counts. And under these circumstances, a reasonable attorney
could have determined not to make a directed verdict motion on
those counts. Accordingly, Gaines has not demonstrated that
Counsel performed deficiently by opting not to do so.

B. Impeachment

¶74 Second, Gaines argues that Counsel was ineffective for
opting not to impeach Agent’s testimony with Agent’s written
investigative report. At trial, Agent suggested that Exhibit 35—a
photo taken of Gaines’s laptop screen, discussed more fully
below—showed a nude female who appeared to be prepubescent,
but nowhere in Agent’s report did he note that he had found
CSAM on Gaines’s computer, instead concluding that “further
review was needed.” Agent’s report was never introduced at trial,
so Gaines asks us to remand the case to the trial court to facilitate
supplementation of the record with the report.

¶75 Under the Utah Rules of Appellate Procedure, a defendant
“may move the court to remand the case to the trial court for entry
of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.”
Utah R. App. P. 23B(a). However, “if the defendant could not meet
the test for ineffective assistance of counsel, even if his [or her]

20240045-CA 30 2026 UT App 44
State v. Gaines

new factual allegations were true, there is no reason to remand
the case, and we should deny the motion.” State v. Griffin, 2015 UT
18, ¶ 20, 441 P.3d 1166.

¶76 Here, Counsel did not render ineffective assistance by
opting not to use Agent’s report to impeach Agent’s trial
testimony on this point. Competent counsel could have
reasonably concluded that attempting to impeach Agent in this
manner would have been unsuccessful. Agent’s report concluded
that “further review was needed,” and if Counsel had tried to
impeach Agent with this report, Agent very likely would have
clarified that, after further review, he had determined that Exhibit
35 depicted an underage nude female, a sequence of events that
could have served to further emphasize Agent’s opinion.

¶77 But even if Counsel’s decision in this regard could
somehow be considered deficient performance, Gaines has not
shown that this performance prejudiced him on the Siberian
Mouse counts. As discussed, the evidence against Gaines on those
counts was overwhelming given his admissions. See supra ¶ 55.
Thus, Gaines’s ineffective assistance claim in this regard fails on
both parts of the Strickland test.

C. Contextualizing Gaines’s State of Mind

¶78 Third, Gaines asserts that Counsel was ineffective for
electing not to admit additional portions of Gaines’s interview
that he now claims could have “contextualized” his “state of
mind” and helped the jury to understand that he was not “a
pedophile trying to cover his tracks” but was, instead, “someone
[just] struggling to cope with a multitude of difficulties in his life.”
In particular, he faults Counsel for not telling the jury, among
other things, that Gaines’s wife had been diagnosed with
schizoaffective disorder and that Gaines had been having serious
financial struggles. He claims that evidence of these stressors
would have served to put his other more incriminating statements
into context and to help explain his state of mind.

20240045-CA 31 2026 UT App 44
State v. Gaines

¶79 Counsel did not perform deficiently by electing not to
inform the jury about these additional contextual facts. Counsel
could reasonably have recognized that any benefit to Gaines from
presenting this evidence would be minimal at best. The reasons
Gaines might have chosen to download and view CSAM are
potentially relevant to sentencing but have little relevance during
the guilt phase. A jury convinced that Gaines downloaded CSAM
would hardly be any less likely to convict him simply by learning
that he was experiencing various life struggles.

¶80 And again, even if Counsel could somehow be deemed to
have performed deficiently in this regard, Gaines has not shown
that this performance prejudiced him on the Siberian Mouse
counts. As discussed, the evidence against Gaines on those counts
was overwhelming. See supra ¶ 55. Thus, Gaines’s third ineffective
assistance claim fails on both parts of the test.

D. Exhibit 35

¶81 Finally, Gaines argues that Counsel was ineffective for not
objecting to Sergeant’s and Agent’s testimonies about the age of
one of the nude females depicted in Exhibit 35. Notably, Gaines
does not argue that Exhibit 35 was inadmissible; he limits his
admissibility challenge to the officers’ opinions about the age of
the female in the photo. In particular, he points out that, at least
in cases “where it is difficult to tell whether the individual
depicted is older or younger than eighteen,” expert testimony
about the individual’s age is “necessary to help the trier of fact
reach a reasoned conclusion.” See State v. Jordan, 2018 UT App 187,
¶ 59, 438 P.3d 862 (cleaned up). The State does not take issue with
this general proposition, but it asserts that Sergeant and Agent—
as law enforcement officers with significant experience in CSAM
investigations—are the sort of experts who are qualified to offer
opinions in this context. Gaines resists this conclusion, and he
takes the position that individuals with medical training are the
only ones qualified to offer an admissible expert opinion about
the age of an individual in an alleged CSAM image. The parties’

20240045-CA 32 2026 UT App 44
State v. Gaines

dispute on this point presents an interesting legal issue that Utah
appellate courts, to our knowledge, have yet to confront.

¶82 But we need not address that legal issue here, because even
if we assume, without deciding, that Counsel performed
deficiently by not objecting to Sergeant’s and Agent’s opinions,
Gaines has failed to show that this deficient performance
prejudiced him. Here, as already noted, our prejudice analysis is
confined only to the Siberian Mouse counts, and on those counts
the evidence against Gaines—even without the Torrential
Downpour search results evidence and even without Exhibit 35—
was overwhelming. As already noted, see supra ¶ 55, Gaines
admitted to possessing the Siberian Mouse files and to knowing
that they contained CSAM. On this basis, we reject Gaines’s
ineffective assistance claim related to the officers’ opinions
regarding the age of the individual depicted in Exhibit 35.

CONCLUSION

¶83 We find merit in Gaines’s challenge to the trial court’s
decision denying his motion to exclude evidence of the Torrential
Downpour search results, because the State failed to make the
threshold showing that such evidence was reliable. And this error
was not harmless regarding the five counts related to the Tropical
Cuties files. Accordingly, we reverse Gaines’s convictions on
those five counts, and we remand this case to the trial court for
further proceedings on those counts.

¶84 But the trial court’s error was harmless as to the seven
counts related to the Siberian Mouse files. And we reject all of
Gaines’s other appellate arguments, including his ineffective
assistance claims and the arguments made in his 23B motion
(which we deny). Accordingly, we affirm Gaines’s convictions on
the seven Siberian Mouse counts.

20240045-CA 33 2026 UT App 44