2021 UT App 19

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

GEORGE DARNSTAEDT,

Appellant.

Opinion

No. 20180922-CA

Filed February 19, 2021

Fourth District Court, Heber Department

The Honorable Jennifer A. Brown

No. 141500198

Emily Adams and Freyja Johnson, Attorneys

for Appellant

Sean D. Reyes and Jeffrey D. Mann, Attorneys

for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES

JILL M. POHLMAN and SENIOR JUDGE KATE APPLEBY concurred.1

HAGEN, Judge:

¶1 A jury convicted George Darnstaedt of twelve counts of 

sexual exploitation of a minor for knowingly possessing 

child pornography discovered during a search of his 

home computer. He appeals those convictions, contending 

they were based on insufficient evidence and that his trial 

counsel was constitutionally ineffective for making a generic 

 

1. Senior Judge Kate Appleby began work on this case as an 

active member of the Utah Court of Appeals. She completed her 

work as a senior judge sitting by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
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directed verdict motion rather than pointing to specific 

deficiencies in the evidence. Darnstaedt also argues his counsel 

was ineffective for not ensuring that the jury was properly 

instructed on various elements of the offense and for not 

objecting to alleged prosecutorial misconduct during closing 

arguments. We reject those arguments and affirm Darnstaedt’s 

convictions.

BACKGROUND

¶2 On June 17, 2013, a Utah law enforcement officer accessed 

Ares, a peer-to-peer file sharing network, to look for users 

illegally sharing child pornography. One particular IP address 

offered to share ninety-two files with hash values associated 

with known images of child exploitation. The officer 

downloaded one file and confirmed that it was indeed 

child pornography.

¶3 Through an administrative subpoena issued to the 

internet service provider, the officer identified the residence 

using the IP address at the time of the connection. Further 

investigation revealed that Darnstaedt lived at that address with 

his wife and two young daughters. Police also determined that 

the wireless networks at the house were locked so that no one 

outside the house could have gained access to the internet using 

that IP address without a password. Based on this information, 

police obtained a warrant to search Darnstaedt’s house for 

evidence of child pornography.

¶4 Police executed the search warrant on July 11, 2013. When 

an officer explained to Darnstaedt that the search was part of an 

investigation into child pornography being distributed from the 

residence, Darnstaedt appeared shocked and repeated “the word 

‘distributed’ with a little exclamation on the end, meaning like a 

question.” During the search, the officers seized a desktop 

computer from a bedroom that had been converted into a home 

office space.
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¶5 A forensic examination of the computer revealed fifty-five

items that appeared to depict “underage individuals in fully 

nude, nude, or explicit-type pictures.” The investigator noted it 

was unsurprising that the forensic team found fewer illicit files 

on the computer than the IP address had offered to share 

through the peer-to-peer network because some users “consume 

the pornography and then delete it immediately afterward”

rather than “hoard[ing]” it.

¶6 The State ultimately charged Darnstaedt with twelve 

counts of sexual exploitation of a minor under Utah Code section

76-5b-201(1)(a). Each count was based on a specific file found on 

the computer’s hard drive. The files contained graphic 

photographs and videos displaying the genitalia of prepubescent 

females and prepubescent females being raped and sodomized 

by adult males.

¶7 At trial, the State presented evidence explaining where 

each of the twelve files was found on the hard drive. Eight of the 

files were in the “recycle bin,” indicating that a user 

purposefully downloaded then deleted them. A forensic 

examiner explained that when a user downloads a file, the data 

that makes up that file is saved on the hard drive and the 

operating system logs its location in a master file table. If a user

later deletes the file, the file appears in the recycle bin. But the

data is not erased from the hard drive, and the operating system 

still tracks where the data is stored. As a result, the file remains 

accessible to the user as “an active file,“ and the user can easily 

recover it from the recycle bin.

¶8 Three of the files were located in “unallocated space,”

indicating that they “had to have existed as . . . active file[s] at 

some point in time,” after which a user had either deleted them 

and then removed them from the recycle bin or had used a 

shortcut key to bypass the recycle bin and permanently delete 

them directly to the unallocated space. To move a file to the 

unallocated space, a user would generally “drag and drop [the 

file] into the recycle bin and then go into the recycle bin and hit 
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‘empty [recycle] bin.’” When the user empties the recycle bin, the

file’s data remains on the hard drive, but the operating system

no longer tracks its location, and it allows that unallocated space 

to be used for storing new information. The old data remains in 

the unallocated space until it is overwritten. Until that happens, 

the data can be recovered with specialized forensic software. 

Although a file in unallocated space is “generally inaccessible”

to the user, “[i]t was once an active file that the user was able to 

see” and “went through the process of deletion.”

¶9 The last file of the twelve files that led to the charges was 

in the temporary internet cache of Darnstaedt’s computer. A 

defense expert explained that temporary internet files are 

automatically saved to the computer’s hard drive to speed up

internet browsing when a user visits a website. While the “user 

simply sees the interface” of the web browser, the “computer’s 

doing all the communication” from “behind the scenes.”

Although the temporary internet cache saves files automatically, 

they are “considered active files” accessible to the user, unlike 

files in unallocated space.

¶10 Temporary files in an internet cache as well as data in 

unallocated space can be erased using specialized software, such 

as CCleaner. Although legitimate users can use CCleaner “for 

general computer maintenance” and “to free up space” to 

improve computer performance, forensic examiners often see 

such data-erasing programs in child pornography cases. 

¶11 Investigators found that CCleaner had been installed on 

Darnstaedt’s computer, along with Ares, the peer-to-peer 

network used for downloading and sharing files. To download 

files from other computers on the Ares network, a user would 

have to deliberately search for files and choose to download 

them to a designated folder. They would not download directly 

to the recycle bin.

¶12 Investigators also recovered the registry of files on 

Darnstaedt’s computer that were recently viewed or opened. The 
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list included “a considerable amount of files” that contained 

“key words that are consistent with files of child pornography.”

The case agent testified that people seeking child pornography 

use those key words—such as the acronym “PTHC” for “preteen 

hard core”—“as search terms when searching for files like this 

through the peer-to-peer network.” For a file to appear on the 

registry list, a user would have to open the file after it was 

downloaded to the computer. Alongside the file names related 

to child pornography, the registry listed recently opened files 

such as “George’s iPhone pics” and “George Darnstaedt 

vacation November 2011.”

¶13 The State presented evidence that the computer was used 

almost exclusively by Darnstaedt. Darnsteadt’s wife2 testified 

that she “very rarely” used the computer and had entirely 

“stopped going into the [home] office” sometime before the 

police executed the search warrant. In contrast, Darnstaedt spent 

most of his time “in his office at his desk at the computer.”

During the two months before the search, including the time 

when the IP address associated with the house offered to share 

child pornography, Darnstaedt was unemployed and at home 

alone while his wife worked most of the day away from home 

and commuted nearly an hour each way. When his wife was 

home, Darnstaedt spent at least three to four hours a day at the 

computer on weekdays and even more time over the weekends. 

¶14 Three user profiles had been created on the computer. 

Darnstaedt’s wife testified that he originally set up a separate 

user profile for himself under his nickname “Jersey” and one for 

her under her nickname “Froggy,” but that he regularly used her 

Froggy profile. The computer contained a third user profile 

named “Camie,” which was associated with the file saved in the 

temporary internet cache, but there was no direct evidence 

 

2. Darnsteadt and his wife were divorced by the time of trial; we 

continue to refer to her as “his wife” throughout this opinion for 

consistency’s sake. 
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explaining why this profile had been created or who used it. No 

one named Camie lived in the household.3

¶15 Investigators found that someone had logged into the 

Froggy profile over 3,000 times and that it was the only profile 

on the computer connected to the Ares peer-to-peer file sharing 

network. The only occupants of the house were Darnstaedt, his 

wife, and their two young children, ages five and three years 

old. Darnstaedt’s wife testified that she had never heard of Ares

and had no idea how to use it. She further testified that she had 

never downloaded child pornography and had no “interest in 

seeing pictures or videos of children being raped.”

¶16 Darnstaedt was the only other adult in the home.

Although they did have an occasional housekeeper, teenage 

babysitter, or visiting family member or friend, the wife did not 

recall “anyone going into the office to use the computer” and 

testified that she never gave any of the passwords for the 

computer to any friends or visitors. She could not remember a 

time when any visitor would have had access to the computer or 

been alone for extended periods of time in the office.

¶17 The jury convicted Darnstaedt of all twelve counts of 

sexual exploitation of a minor. He now appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Darnstaedt first challenges the sufficiency of the evidence 

to support his convictions. When reviewing a preserved

sufficiency of the evidence claim, we ask “simply whether the 

jury’s verdict is reasonable in light of all of the evidence taken 

 

3. Darnstaedt’s wife testified she has a sister-in-law named 

Camie, but no evidence suggested that the sister-in-law or 

anyone else ever used the computer, much less set up a separate 

user profile under that name.
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cumulatively, under a standard of review that yields deference 

to all reasonable inferences supporting the jury’s verdict.” State 

v. Ashcraft, 2015 UT 5, ¶ 24, 349 P.3d 664. On the other hand, 

when a sufficiency-of-the-evidence claim is not preserved but is 

raised under the ineffective assistance of counsel exception to 

preservation, it “presents a question of law, and to prevail on 

[such] ineffective assistance of counsel claims, [the defendant] 

must demonstrate that counsel’s failure to raise the sufficiency 

issues to the trial court’s attention was both objectively deficient 

and prejudicial.” State v. Heath, 2019 UT App 186, ¶ 25, 453 P.3d 

955 (cleaned up).

¶19 Darnstaedt further argues that his counsel was ineffective 

because he “(1) did not ensure that the jury was properly 

instructed on the meaning of possession and the correct mens 

rea and (2) did not object to the prosecutor’s misstatement 

during rebuttal closing argument.” Where, as here, “a claim of 

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and we must 

decide whether the defendant was deprived of the effective 

assistance of counsel as a matter of law.” Layton City v. Carr, 2014 

UT App 227, ¶ 6, 336 P.3d 587 (cleaned up).4

 

4. Darnstaedt also argues that the cumulative effect of his 

counsel’s errors deprived him of a fair trial. We will reverse 

under the cumulative error doctrine if “(1) an error occurred, (2) 

the error, standing alone, has a conceivable potential for harm, 

and (3) the cumulative effect of all the potentially harmful errors 

undermines [our] confidence in the outcome.” State v. MartinezCastellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038. On the other hand, if 

we determine “that either a party’s claim did not amount to an 

error, or that the claim was an error but has no potential to cause 

harm on its own, the claim cannot weigh in favor of reversal 

under the cumulative effects test.” Id. Because we ultimately 

conclude that counsel committed no errors that, on their own, 

(continued...)
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20180922-CA 8 2021 UT App 19

ANALYSIS

I. Sufficiency of the Evidence

¶20 Darnstaedt first argues the State produced insufficient 

evidence to show that he knowingly possessed child 

pornography. Specifically, he argues there was insufficient 

evidence that he knew about the files, “either because he 

downloaded them or otherwise knew they existed on the 

computer,” or that he possessed the files, especially given that 

some of them were not accessible by an ordinary user at the time 

of the forensic examination. These arguments were not 

presented at trial.

¶21 Although Darnstaedt made a generic motion for a 

directed verdict, it was inadequate to preserve the sufficiency

issues raised on appeal. To preserve an issue for appeal, a 

defendant must lodge “a timely and specific objection” in the 

district court. State v. Rogers, 2020 UT App 78, ¶ 47, 467 P.3d 880 

(cleaned up). If a motion for a directed verdict “makes general 

assertions but fails to assert the specific argument raised on 

appeal, [it] is insufficient to preserve the more specific argument 

for appeal.” Id. (cleaned up). “Such specificity is necessary to 

allow the district court to assess allegations by isolating relevant 

facts and considering them in the context of the specific legal 

doctrine placed at issue.” Id. (cleaned up).

¶22 At trial, defense counsel stated, “I’d just move for a 

directed verdict based upon the evidence that’s been presented. I 

don’t see how a reasonable jury could find beyond a reasonable 

doubt that Mr. Darnstaedt was guilty. I’ll submit.” Darnstaedt 

contends that this was enough to preserve the challenges to the 

sufficiency of the evidence made on appeal because “the basis 

 

(...continued)

would have had a conceivable potential for harm, there are no 

errors to accumulate.
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20180922-CA 9 2021 UT App 19

for the directed verdict motion was clear in context,” given that 

his counsel “did argue specifics in the preliminary hearing when 

he argued against bindover.”

¶23 Although “a generic motion for directed verdict will 

preserve a specific ground for appeal when the specific 

ground for an objection is clear from its context,” State v. Isom, 

2015 UT App 160, ¶ 22, 354 P.3d 791 (cleaned up), Darnstaedt

has not shown that this is such a case. At trial, Darnstaedt did 

not renew his preliminary hearing arguments and the 

district court’s ruling did not refer to those arguments 

or otherwise suggest that the basis for the motion was apparent 

to the court. Because the issue raised on appeal was 

not “presented to the trial court in such a way that the trial 

court ha[d] an opportunity to rule on that issue,” see State v. 

Gallegos, 2018 UT App 112, ¶ 14, 427 P.3d 578 (cleaned up), 

Darnstaedt’s challenge to the sufficiency of the evidence was 

not preserved. 

¶24 Darnstaedt nevertheless asks us to review this 

claim under the ineffective assistance of counsel exception to 

our general preservation rule. See State v. Johnson, 2017 UT 76, 

¶ 19, 416 P.3d 443 (recognizing ineffective assistance of counsel 

as one of “the three distinct exceptions to preservation”). “To 

prevail on an ineffective-assistance-of-counsel claim, a 

defendant must show both that counsel’s performance 

was objectively deficient, and a reasonable probability exists 

that but for the deficient conduct defendant would have 

obtained a more favorable outcome at trial.” State v. Reid, 2018 

UT App 146, ¶ 19, 427 P.3d 1261 (cleaned up); see also Strickland 

v. Washington, 466 U.S. 668, 687, 694 (1984). Because a 

defendant must establish both, “we often skip the question of 

deficient performance when a defendant cannot show 

prejudice.” State v. Roberts, 2019 UT App 9, ¶ 23, 438 P.3d 885; see 

also Strickland, 466 U.S. at 697 (“If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient 

prejudice, which we expect will often be so, that course 

should be followed.”). 
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20180922-CA 10 2021 UT App 19

¶25 In this case, we do not consider the reasonableness of 

counsel’s performance because Darnstaedt cannot establish 

prejudice. To demonstrate prejudice, “[a] defendant must show 

that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694. “A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome.” Id. Darnstaedt cannot demonstrate a reasonable 

probability that a more specific directed verdict motion would 

have affected the outcome. Even if trial counsel had made the 

specific sufficiency arguments raised on appeal, it is not 

reasonably likely that the directed verdict motion would have 

been granted because “some evidence exists from which a 

reasonable jury could find that the elements of the crime had 

been proven beyond a reasonable doubt.” See State v. Doyle, 2018 

UT App 239, ¶ 11, 437 P.3d 1266 (cleaned up).

¶26 As relevant here, Utah’s child exploitation statute 

criminalizes knowing possession of child pornography.5 See 

Utah Code Ann. § 76-5b-201(1)(a)(i) (Lexis Nexis Supp. 2020). In 

this case, Darnstaedt does not dispute that the twelve images on 

which the charges were based constituted child pornography. 

Instead, Darnstaedt argues that the State presented insufficient 

evidence to prove (1) that he possessed the images of child 

pornography and (2) that he did so knowingly. Although the 

evidence and arguments pertaining to possession and 

knowledge overlap, we attempt to address each element 

separately. 

A. Possession

¶27 A person who does not have actual physical possession of 

contraband at the time of arrest may still be convicted “if the 

 

5. Although there are other variations of the crime, “[t]he State’s 

theory at trial was that Darnstaedt knowingly possessed child 

pornography.”
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State can prove constructive possession.” State v. Workman, 2005 

UT 66, ¶ 31, 122 P.3d 639. To prove constructive possession, “the 

State must prove that there was a sufficient nexus between the 

accused and the contraband to permit an inference that the 

accused had both the power and the intent to exercise dominion 

and control over the contraband.” State v. Gallegos, 2020 UT App 

162, ¶ 19 (cleaned up), petition for cert. filed, Feb. 10, 2021 (No. 

20210092). “Ownership or occupancy of the premises where 

contraband is discovered” may be insufficient, by itself, to prove 

constructive possession, but “[i]n cases where there is additional 

evidence, including circumstantial evidence, that strengthens the 

nexus between ownership or occupancy and the contraband, the 

jury may consider those circumstances in drawing an inference 

of possession.” State v. Ashcraft, 2015 UT 5, ¶ 20, 349 P.3d 664.

¶28 “When only one person has access to a computer on 

which child pornography is located, demonstrating constructive 

possession is straightforward: it is clear that the sole person with 

access to the computer has at least constructive possession of the 

images.” State v. Jordan, 2018 UT App 187, ¶ 35, 438 P.3d 862, 

cert. granted, 462 P.3d 797 (Utah 2020). But here the evidence 

showed that both adults living in the house had access to the 

computer and “joint occupancy alone cannot sustain an 

inference of constructive possession.” See id. (cleaned up). 

Instead, the “defendant’s joint occupancy of the premises where 

the contraband is discovered must be combined with other 

evidence sufficient to establish the defendant’s knowing and 

intentional control over the contraband.” State v. Gilliard, 2020 

UT App 7, ¶ 30, 457 P.3d 1128 (cleaned up).

¶29 Where the defendant has non-exclusive ownership and 

control of the premises, the State must often rely on 

circumstantial evidence to prove the defendant’s individual or 

joint possession of the contraband. But in this case, the joint 

occupant testified unequivocally that the child pornography 

found on the computer did not belong to her. Darnstaedt’s wife, 

the only other adult living in the house, testified that she rarely 

used the computer and had never heard of the Ares peer-to-peer 
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file sharing software. She further testified that she had never 

downloaded child pornography, through Ares or otherwise, and 

had no interest in seeing such images. Darnstaedt’s wife’s 

testimony, if the jury believed it, disproved the alternative 

inference that the child pornography on the computer might 

have exclusively belonged to her as the joint occupant of the 

house.

¶30 But Darnstaedt argues the evidence was insufficient to 

disprove the possibility that a third, unknown person had access 

to the computer. He claims that “at least one person besides 

Darnstaedt and [his wife] used the computer: the person who set 

up the Camie account.” And, he argues, “there was evidence 

that other people came into the house—including babysitters, a 

housekeeper, family members[,] and guests—who could have 

used the computer simply by walking into the accessible office 

and accessing the computer through a non-password-protected 

account.”

¶31 Although it is appropriate to argue alternative inferences 

to the jury, such arguments would not merit a directed verdict. 

“The law is well established that the existence of one or more 

alternate reasonable hypotheses does not necessarily prevent the 

jury from concluding that a defendant is guilty beyond a 

reasonable doubt.” State v. Cardona-Gueton, 2012 UT App 336, 

¶ 11, 291 P.3d 847 (cleaned up). “It is the exclusive province of 

the jury to weigh the competing theories of the case, in light of 

the evidence presented and the reasonable inferences drawn 

therefrom, and to conclude which one they believe.” Id. (cleaned 

up). Thus, “the existence of conflicting evidence alone cannot 

justify taking the case away from the jury.” State v. Torres, 2018 

UT App 113, ¶ 21, 427 P.3d 550. 

¶32 The State presented ample evidence to support its theory 

that it was Darnstaedt, and not some unknown person, who not 

only possessed but actively acquired the child pornography. The 

evidence showed that a computer in his house was connected to 

the Ares peer-to-peer network and that a user offered to share 
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ninety-two files of suspected child pornography from that 

computer in June 2013. When the search was conducted less than 

one month later, investigators discovered fifty-five files 

containing explicit images of prepubescent girls. In addition, 

investigators found that files with names consistent with child 

pornography recently had been opened and were listed in the 

directory along with files labelled as belonging to Darnstaedt.

¶33 During this period, Darnstaedt had near exclusive control 

of the computer. Darnstaedt’s wife testified that he was 

unemployed and home alone much of the time after he lost his 

job in May 2013. Darnstaedt spent long hours at the computer, 

even taking meals at his desk away from the family. Sometime 

before the search, his wife stopped using the computer or even 

going into the office. She also testified that although they had

occasional visitors, she did not remember anyone ever using the 

computer nor could she think of a time when a visitor would 

have had the opportunity to do so for a prolonged period. 

Although Darnstaedt’s wife was never directly asked whether 

the computer was password-protected, she implied as much 

when she denied ever giving “any of the passwords for the 

computer to any friends or visitors.”

¶34 This evidence was more than sufficient to establish the 

required nexus between Darnstaedt and the images on the 

computer. The jury reasonably could reject the defense’s theory 

that some unknown person had downloaded the images in favor 

of the more plausible inference that Darnstaedt had acquired the 

images himself during the long hours he spent alone at the 

computer during the relevant period. Unlike an occasional 

visitor to the house, Darnstaedt had the time and opportunity to 

install the Ares software, share files in June, and download the 

files found on his computer in July. Given that the State 

presented sufficient circumstantial evidence tying Darnstaedt to 

the child pornography, the theoretical possibility that someone 

else might have downloaded the images would not have 

justified taking the case from the jury. See State v. Ashcraft, 2015 

UT 5, ¶ 29, 349 P.3d 664 (“The alleged connection to alternative 
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20180922-CA 14 2021 UT App 19

suspects was a fruitful source of cross-examination and 

argument to the jury. . . . Yet the jury was by no means 

compelled to accept the existence of reasonable doubt posited by 

the defense’s finger-pointing, and in fact it did not accept the 

argument.”).

¶35 Similarly, the existence of the Camie profile did not prove 

that someone other than Darnstaedt was using the computer.

The wife testified that, on the rare occasions she used the 

computer, she used the Froggy account and never used any 

other username to log on to the computer. Darnstaedt and his

wife were the only two adults in the house and, based on his

wife’s testimony, the jury could reasonably conclude that no 

visitor would have had reason or opportunity to set up a 

separate user profile.6 Tellingly, Darnstaedt originally set up the 

Froggy profile for his wife, but regularly used that account

himself. In fact, the Froggy profile was the one connected to Ares

even though the wife testified she had never heard of the peerto-peer network. The jury could reasonably conclude that 

Darnstaedt created and used the Camie profile, just as he did the 

Froggy profile, to avoid conducting illicit activities using his 

own profile.

¶36 The State also presented ample evidence that the person 

responsible for downloading the images had both the power and 

the intent to exercise dominion and control over them. For 

eleven of the twelve images, the State presented evidence that 

 

6. Darnstaedt faults the State for not calling the sister-in-law 

named Camie to testify, but the State was not required to 

disprove every alternative inference so long as it presented 

sufficient evidence tying Darnstaedt to possession of the images. 

See Ashcraft, 2015 UT 5, ¶ 27 (explaining that, in assessing the 

sufficiency of the evidence to prove constructive possession, “it 

[is] unnecessary to eliminate other reasonable inferences to be 

drawn from the evidence” so long as “the inference adopted by 

the jury was sustainable”).
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someone did, in fact, exercise dominion and control over those 

files. The forensic investigator who examined Darnstaedt’s 

computer testified that the eight files in the recycle bin could get 

there only by a computer user deleting them. The three files in 

unallocated space also had to arrive there through a process of 

deletion—either the user moved the files to the recycle bin and 

later emptied it or used a shortcut key to bypass the recycle bin. 

The jury could reasonably conclude that Darnstaedt was that 

user and that the affirmative steps he took to delete those eleven

files proved he had dominion and control over them.

¶37 Despite this evidence, Darnstaedt argues there was 

insufficient evidence that he possessed the three images in 

unallocated space because such files “are not accessible to any 

user without forensic software, and no forensic software was 

found on the computer.” In support of this claim, Darnstaedt 

relies on a case from the Virginia Court of Appeals in which the 

Commonwealth conceded that there was insufficient evidence 

that the defendant possessed images recovered from unallocated 

space. Kobman v. Commonwealth, 777 S.E.2d 565, 567 (Va. Ct. App. 

2015). In that case, the court noted that “[w]hile the evidence 

may suggest appellant at one time possessed the photographs in 

the unallocated space, there was no evidence that he had 

dominion or control of them on or about” the date alleged in the 

indictment. Id. In contrast, Darnstaedt has not argued that the 

evidence in this case was insufficient to prove possession on the 

date alleged in the indictment. Rather, he argues that “the State 

did not put on evidence that Darnstaedt ever had dominion or 

control over the files.” (Emphasis added.) This argument 

overlooks the direct evidence that a user exercised dominion and 

control over the files by deleting them and the circumstantial 

evidence from which a jury could reasonably infer that 

Darnstaedt was that user.

¶38 Darnstaedt also argues that there was insufficient 

evidence to prove constructive possession of the one file found

in the temporary internet cache. The State presented evidence 

that files in the internet cache are active files that the user can 
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20180922-CA 16 2021 UT App 19

access. But, because the temporary file was associated with the 

Camie account, Darnstaedt argues there was no evidence that he 

possessed the file, because “it would have been pure speculation 

for the jury to infer that Darnstaedt had access to or control over 

the Camie account.” To the contrary, for the reasons set forth 

above, the State produced sufficient evidence to support a 

reasonable inference that Darnstaedt created and controlled the 

Camie account.

¶39 In sum, the State presented sufficient evidence at trial to 

allow a reasonable jury to find that Darnstaedt possessed the 

images associated with each of the twelve counts. Even if the 

constructive possession arguments raised on appeal had been 

presented to the district court, it is not reasonably likely that the 

motion for a directed verdict would have been granted.

Therefore, Darnstaedt cannot prove that he was prejudiced by 

his counsel’s failure to make a more specific directed verdict 

motion challenging the element of possession.

B. Knowledge

¶40 The State also presented sufficient evidence from which a 

reasonable jury could find that Darnstaedt possessed the files

knowingly. A person acts knowingly “with respect to his 

conduct or to circumstances surrounding his conduct when he is 

aware of the nature of his conduct or the existing 

circumstances.” Utah Code Ann. § 76-2-103(2) (LexisNexis 2017).

“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. Mitchell, 2013 UT App 289, 

¶ 29, 318 P.3d 238 (cleaned up).

¶41 Here, the circumstantial evidence of knowledge was 

sufficient to submit the case to the jury. The jury reasonably

could have found that Darnstaedt possessed each of the twelve 

images knowingly, as opposed to inadvertently, based on 

evidence that he sought out, downloaded, and viewed images of 
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20180922-CA 17 2021 UT App 19

child pornography and took steps to delete those images from 

his computer.

¶42 The evidence sufficiently dispelled any notion that 

Darnstaedt was an innocent user who unwittingly stumbled 

upon child pornography. Instead, the evidence showed that he

actively sought out and downloaded child pornography, 

supporting the inference that he knew the illicit nature of the 

files saved on his computer. Based on the evidence of 

constructive possession outlined above, the jury reasonably 

could infer that Darnstaedt was the user who installed the Ares

peer-to-peer file sharing network and that he did so for the 

purpose of obtaining child pornography. Although Ares can be 

used for other purposes, investigators testified that it is 

frequently associated with child pornography. And the IP 

address assigned to Darnstaedt’s computer had offered to share 

ninety-two images of suspected child pornography on Ares, 

confirming that the network was being used for that purpose.

¶43 The evidence further showed that Darnstaedt knew that 

child pornography had been saved on his computer. At the time 

of the search, investigators found fifty-five sexually explicit 

images and videos of prepubescent children on Darnstaedt’s 

computer. The directory showed that images with file names 

consistent with child pornography had recently been opened,

along with files using Darnstaedt’s name, further supporting the 

inference that he was knowingly viewing child pornography

saved on his computer. Indeed, when officers executed the 

search warrant, Darnstaedt appeared surprised not at the 

mention of child pornography but at the suggestion that it was 

being distributed from his house. Based on this evidence, the 

jury could reasonably conclude that Darnstaedt was well aware 

that the files on his computer contained child pornography.

¶44 Darnstaedt points out that the twelve images he was 

charged with possessing were saved in inconspicuous 

locations—the recycle bin, unallocated space, and the temporary 

internet cache—where an innocent user would not be aware of 
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20180922-CA 18 2021 UT App 19

their existence. This argument does not account for the evidence 

that Darnstaedt was not an innocent user, but the person who 

actually acquired the images. With respect to the temporary 

internet file associated with the Camie account, Darnstaedt

argues that “[t]here was no evidence that [he] knew about the 

Camie account, had control over the account or could view the 

temporary internet files for the account.”7 But, as we have 

 

7. In Darnstaedt’s reply brief, he argues for the first time that the 

State could not prove he acted knowingly with respect to the file 

saved in the temporary internet cache because there was no 

evidence that he knew of the computer’s automatic-caching 

function. Utah courts have yet to address this issue, but the 

question of “whether a defendant can be convicted of possessing 

child pornography accessed from the internet and 

contemporaneously stored to the internet cache” has been the 

subject of considerable discussion in the federal courts. See, e.g.,

United States v. Romm, 455 F.3d 990, 999 (9th Cir. 2006) 

(discussing federal circuit courts’ attempts to address whether 

“knowing possession” applies to “images in the internet cache”). 

Like Utah’s child exploitation statute, federal law does not 

punish unwitting or inadvertent possession or receipt of child 

pornography. See United States v. Woods, 684 F.3d 1045, 1060 

(11th Cir. 2012) (noting that the scienter requirement “eliminates 

the possibility that an unwitting downloader of child 

pornography” would be convicted). As a result, federal courts 

“have reasoned that the mere presence of illicit materials in a 

computer’s temporary internet cache, standing alone, is 

insufficient to establish knowing receipt, given that the files 

could have been saved there without the user’s knowledge.” 

United States v. Myers, 560 F. App’x 184, 186 (4th Cir. 2014) 

(collecting cases). In assessing whether there is sufficient 

evidence that the defendant knowingly received or possessed 

the illicit material, federal courts have looked at factors such as 

“the defendant’s knowledge of the cache function, a search 

(continued...)
State v. Darnstaedt

20180922-CA 19 2021 UT App 19

already explained, the evidence supported a reasonable 

inference that it was Darnstaedt himself who created the Camie 

account and used it to seek out and acquire child pornography. 

With respect to the eleven files in the recycle bin and the 

unallocated space, the evidence established that a user actively 

deleted those files, either by moving them to the recycle bin or 

by emptying or bypassing the recycle bin. The evidence also 

showed that someone had installed CCleaner, which is designed 

to permanently erase both the unallocated space and the 

temporary internet cache. The jury reasonably could infer that 

Darnstaedt was the only person who would have taken such 

 

(...continued)

pattern for child pornography, evidence of deleting illicit files 

after the fact, or the use of cache cleaning software.” United States 

v. Winkler, 639 F.3d 692, 698 (5th Cir. 2011) (collecting cases). But 

the courts are split as to what evidence is sufficient to prove 

knowledge. Compare United States v. Dobbs, 629 F.3d 1199, 1204-

05 (10th Cir. 2011) (holding that proof that the defendant 

“knowingly and methodically sought out child pornography” 

was insufficient to show knowing possession of cached files 

where there was no evidence that the defendant “at least knew 

of the automatic-caching process”), with United States v. Fall, 955 

F.3d 363, 376 (4th Cir. 2020) (noting that “many of our sister 

circuits have affirmed child pornography convictions based on 

circumstantial evidence of the defendant’s history and 

involvement with child pornography”). Although our 

jurisprudence could benefit from case law on this issue, we 

hesitate to weigh in on a matter of first impression in Utah 

without the benefit of full briefing. Therefore, we adhere to the 

general rule 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.” 

Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540.
State v. Darnstaedt

20180922-CA 20 2021 UT App 19

actions, supporting an inference that he knew those files were 

saved on the computer.

¶45 In short, “this is not the exceptional case in which the 

government has persisted in bringing a criminal prosecution 

against the unknowing victim of a computer’s inner workings.”

See United States v. Winkler, 639 F.3d 692, 699 (5th Cir. 2011). 

Instead, the evidence showed that Darnstaedt was a 

sophisticated user who purposefully sought out child 

pornography using a peer-to-peer file sharing network, had a 

pattern of downloading and deleting child pornography, had 

recently opened files whose file names strongly suggest child 

pornography, and had installed a data erasing program capable 

of erasing the temporary internet cache. Because the State 

presented sufficient circumstantial evidence to prove

knowledge, there is no reasonable likelihood that a more specific 

directed verdict motion would have succeeded. Therefore, 

Darnstaedt has not established that he received ineffective 

assistance of counsel in connection with the directed verdict 

motion.

II. Other Ineffective Assistance of Counsel Claims

¶46 Next, Darnstaedt argues his counsel was ineffective 

because he “(1) did not ensure that the jury was properly 

instructed on the meaning of possession and the correct mens 

rea and (2) did not object to the prosecutor’s misstatement 

during rebuttal closing argument.” To assess whether a 

defendant’s constitutional right to the effective assistance of 

counsel has been violated, “we apply the two-part test 

articulated in Strickland v. Washington.” State v. Florez, 2020 UT 

App 76, ¶ 40, 465 P.3d 307. Darnstaedt “must show both that 

counsel’s performance was deficient and that the deficient 

performance prejudiced the defense.” See State v. Beckering, 2015 

UT App 53, ¶ 21, 346 P.3d 672 (cleaned up). Counsel’s 

performance was deficient if “it fell below an objective standard 

of reasonableness.” Id. (cleaned up). In this section, we address 

only the deficient performance element because “a failure to 
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20180922-CA 21 2021 UT App 19

prove either element defeats the claim.” State v. Hart, 2020 UT 

App 25, ¶ 19, 460 P.3d 604 (cleaned up).

A. Jury Instructions

¶47 Darnstaedt first argues that his trial counsel did not 

ensure that the jury was properly instructed on the elements of 

the offense. Specifically, he argues that “the jury was not 

instructed on (1) the meaning of the criminal act, which was to 

‘possess’ child pornography or (2) the proper mens rea for 

distributing and viewing.”

¶48 The jury was instructed that it could convict Darnstaedt of 

sexual exploitation of a minor only if it found that each of the 

following elements had been proved beyond a reasonable doubt:

1. That the defendant;

2. In Wasatch County, State of Utah;

3. On or about July 11, 2013;

4. Did knowingly;

5. Produce, possess, possess with intent to 

distribute, or view;

6. Child pornography.

Although element five included each of the statutory variants, 

the parties agree that the State proceeded under a possession 

theory at trial. Consistent with that understanding, the court 

instructed the jury that “the State must prove that the defendant 

was in possession of a different item of child pornography for 

each of the charges listed above, and that the other elements are 

met as to each item of child pornography.” (Emphasis added.)

With that context in mind, we turn to Darnstaedt’s specific 

challenges.
State v. Darnstaedt

20180922-CA 22 2021 UT App 19

¶49 First, Darnstaedt argues that his “counsel performed 

deficiently when he did not ensure that the jury was instructed 

properly on constructive possession.” Darnstaedt does not argue 

that the instructions affirmatively misstated the law, but instead 

argues that they were insufficient because they did not 

define the term “possession” or otherwise “inform the jury on 

what the state must prove to demonstrate possession of 

electronic files on a shared computer.” Darnstaedt suggests that 

his attorney could have remedied this deficiency by 

requesting the jury be instructed using the model Utah jury 

instruction defining constructive possession in the context of

drug cases. See Model Utah Jury Instructions 2d CR1202B (2018), 

http://www.utcourts.gov/resources/muji [https://perma.cc/F4EW

-3UHP].

¶50 Given the evidence at trial, Darnstaedt’s counsel acted 

reasonably in not proposing such an instruction. In determining 

whether counsel’s performance was constitutionally deficient, 

“the ultimate question is not whether there was a possible 

strategic reason for counsel’s conduct, but instead whether that 

conduct was objectively reasonable.” State v. Scott, 2020 UT 13, 

¶ 35, 462 P.3d 350. Nonetheless, “if the court concludes that the 

challenged action might be considered sound trial strategy, it 

follows that counsel did not perform deficiently.” Id. (cleaned 

up).

¶51 Here, we can easily conceive of a sound strategic reason

for not requesting the model instruction on constructive 

possession. This was not a joint occupancy case in which there 

was no evidence as to which occupant might have possessed the 

child pornography found on a shared computer. Darnstaedt’s

wife was the only other adult resident of the house and the only 

person known to use the computer besides Darnstaedt. She 

testified that the child pornography on the computer did not 

belong to her. She also testified that she could not remember any 

visitors using the computer or having access to the office for any 

significant period. In contrast, Darnstaedt exercised nearly 
State v. Darnstaedt

20180922-CA 23 2021 UT App 19

exclusive control over the computer and spent long hours alone 

in his office during the relevant time frame.

¶52 In light of this evidence, trial counsel could reasonably 

have decided to leave “possession” undefined rather than 

request a jury instruction that was largely favorable to the 

prosecution. The model instruction on constructive possession 

would have directed the jury to consider factors such as the 

defendant’s ownership and occupancy of the place where the 

contraband was found, whether the defendant’s ownership or 

occupancy was exclusive, whether contraband was in a location 

where the defendant had “special control,” and whether other 

people also had access to it. See Model Utah Jury Instructions 

2d CR1202B (2018) [https://perma.cc/F4EW-3UHP]. A reasonable 

attorney could conclude it was not in Darnstaedt’s best interest 

to include a constructive possession instruction highlighting 

those factors, which weighed heavily in favor of finding that he

possessed the images. Such decisions are matters of trial 

judgment and strategy and do not rise to the level of deficient 

performance.

¶53 Second, Darnstaedt argues his counsel was ineffective 

because he did not object to “a misstatement of the law in the 

jury instruction” that “listed the mens rea for distributing and 

viewing [child pornography] as knowingly” when “the mens rea 

for distributing and viewing is intentionally.” The State concedes 

that “the statute imposes an intentional mental state for 

‘distributing and viewing child pornography,’” but argues that 

trial counsel did not perform deficiently in overlooking this error 

because the variants of distributing or viewing child 

pornography were not at issue in this case. We agree. 

¶54 The jury instructions correctly stated the knowing mental 

state for possession, the only theory the State pursued at trial.

The instructional error was including the variants of 

“distributing” and “viewing” without specifying that those 

variants require an intentional mental state. But “not objecting to 

an error does not automatically render counsel’s performance 
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20180922-CA 24 2021 UT App 19

deficient.” State v. Ray, 2020 UT 12, ¶ 31, 469 P.3d 871; see also 

Scott, 2020 UT 13, ¶ 39 (“Reasonably effective assistance does not 

require counsel to correct every error that might occur during a 

trial.”). “We must view a decision to not object in context and 

determine whether correcting the error was sufficiently 

important under the circumstances that failure to do so was 

objectively unreasonable—i.e., a battle that competent counsel 

would have fought.” Ray, 2020 UT 12, ¶ 32.

¶55 Here, counsel’s failure to object to the error in the 

elements instruction did not fall below an objective standard of 

reasonableness. The focus at trial was on whether Darnstaedt

knowingly possessed the images. A reasonable attorney could 

have overlooked the error because it related to variants that did 

not appear to be at issue. Under the circumstances, correcting the 

erroneous instruction was not “sufficiently important that 

counsel’s inaction was objectively unreasonable.” See id. ¶ 44. 

Therefore, Darnstaedt has not established that his counsel’s 

performance was deficient. 

B. Closing Argument

¶56 Finally, Darnsteadt argues that his counsel was ineffective 

because he failed to object to the prosecutor’s rebuttal argument 

suggesting that access to the computer was protected by a 

password. Because prosecutorial misconduct is not a 

“standalone basis for independent judicial review[,] . . . absent 

an objection at trial, we review the district court’s actions under 

established exceptions to the law of preservation.” State v. 

Hummel, 2017 UT 19, ¶ 111, 393 P.3d 314. In this case, Darnstaedt 

asks us to review this issue through the lens of ineffective 

assistance of counsel.

¶57 At trial, the State presented no direct evidence that the 

computer was password-protected. The only evidence regarding 

computer passwords consisted of the following testimony from 

Darnstaedt’s wife:
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20180922-CA 25 2021 UT App 19

Q: Did you personally ever give any of the 

passwords for the computer to any friends or 

visitors?

A: No. 

¶58 During his rebuttal to closing argument, the prosecutor

assumed that the computer was password-protected and 

suggested that the jury had heard testimony to that effect. 

Specifically, the prosecutor argued as follows:

[Someone] would have to have gotten passwords

for the computer. We heard information about how 

the computer was password protected and . . . 

information that [the wife] never gave those 

passwords to anyone. She only knew the 

password—that we know that she knew the 

password for one account, but she can’t even 

remember which account it was that she knew it. 

So someone with access to the password for the 

Froggy account had to—so they had to have the 

password. . . . 

And that’s just not even—not even within the 

realm of reasonable to believe that a babysitter 

without a password did that, that somebody who 

was doing yard work should be someone that we 

can’t rule out, that someone who cleaned the house 

occasionally without a password would be able to 

do.

Defense counsel did not object to these statements.

¶59 Darnstaedt argues that the prosecutor misstated the 

evidence and that competent trial counsel should have objected.

Given the lack of direct evidence that the computer was 
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20180922-CA 26 2021 UT App 19

password-protected, such an objection might have been welltaken. On the other hand, counsel for both sides “have 

considerable latitude in the points they may raise,” Hummel, 

2017 UT 19, ¶ 110 (cleaned up), including “the right to fully 

discuss from their perspectives the evidence and all inferences 

and deductions it supports,” State v. Houston, 2015 UT 40, ¶ 76, 

353 P.3d 55 (cleaned up). Trial counsel reasonably might have 

concluded that the wife’s testimony that she had not provided 

the passwords to anyone adequately supported the prosecutor’s 

inference that a password protected the computer.

¶60 In any event, the prosecutor’s argument was not so 

egregious that trial counsel’s only reasonable course of action 

was to object. “When we review an attorney’s failure to object to 

a prosecutor’s statements during closing argument, the question 

is not whether the prosecutor’s comments were proper, but 

whether they were so improper that counsel’s only defensible 

choice was to interrupt those comments with an objection.” State 

v. Bermejo, 2020 UT App 142, ¶ 88, 476 P.3d 148 (cleaned up), 

petition for cert. filed, Dec. 22, 2020 (No. 20200933). “And the law 

recognizes the prerogative of opposing counsel to swallow their 

tongue instead of making an objection that might have the risk 

of highlighting problematic evidence or even just annoying the 

jury.” Hummel, 2017 UT 19, ¶ 110.

¶61 Darnstaedt’s counsel reasonably could have concluded

that there was nothing to be gained from objecting to the 

prosecutor’s argument. During closing arguments, a district 

court is rarely in a position to resolve disputes about whether a 

particular argument is supported by evidence in the record. 

Lacking a transcript of the testimony or briefing on whether a 

particular fact reasonably can be inferred from the evidence 

presented, district courts almost invariably respond to such 

objections by instructing the jury that the arguments of counsel 

are not evidence and that the jury’s recollection of the evidence 

controls. Here, the court had already advised the jury, “If the 

lawyers say anything about the evidence that conflicts with what 

you remember, you are to rely on your memory of the 
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20180922-CA 27 2021 UT App 19

evidence.” Trial counsel reasonably could conclude that an 

objection merely would have prompted the court to reiterate that 

instruction, to no real effect. Under these circumstances, the 

failure to object did not rise to the level of deficient performance.

CONCLUSION

¶62 Darnstaedt has not established that he received ineffective 

assistance of counsel. He cannot establish prejudice in 

connection with the motion for a directed verdict, because a

more specific motion would not have succeeded in light of the 

evidence supporting each element of the offense as to all twelve 

charges. With respect to his remaining claims, he cannot 

establish deficient performance because it was not objectively

unreasonable for trial counsel to forgo objections to either the 

jury instructions or the prosecutor’s closing argument.

Accordingly, we affirm Darnstaedt’s convictions.