Court of Appeals hears claims that state destroyed key dating‑profile photo and that defendant invoked right to counsel in State v. Kyum

The Utah Court of Appeals heard oral argument in State v. Kyum on claims that the prosecution destroyed a potentially exculpatory dating‑profile photo, that the defendant invoked his right to counsel after receiving Miranda warnings, and that trial counsel performed ineffectively.

The defendant’s attorney, Natalie Scabine, told the three‑judge panel that the case turned on what the defendant saw in an online dating profile before traveling to meet a person he now says was an adult model. "The state destroyed the profile it used to attract mister Khayyam," Scabine said, and that lost profile photo was the only image the defendant had seen "at the time he solicited the woman in that photograph." Scabine argued the missing profile could have been exculpatory because later photos in the record show an adult who did not look 13, which she said would undercut the prosecution’s theory that the defendant believed he was communicating with a minor.

She urged the court to apply De Jesus precedent on preservation of evidence and said the district court erred by finding no reasonable probability that the lost photo would have helped the defense. Scabine also argued entrapment and ineffective assistance of counsel claims relied in part on the missing image and that the district court’s post‑trial rulings overlooked how pivotal the profile photo was to the defense theory.

The state responded that the defense’s claim rests on speculation. The prosecutor argued that multiple images and a video exhibit containing seven photos were already in the record and that the thumbnail photos shown to the jury would not have been materially different if produced at larger size. "All we have is speculation," the prosecutor said, arguing the missing profile picture did not meet the threshold of a reasonable probability of being exculpatory.

The parties also disputed whether the defendant clearly and unambiguously invoked his right to counsel during a custodial interview. Scabine described the defendant’s response during the Miranda exchange as an unambiguous invocation: "I have to tell my attorney to talk to you to answer my questions," she said the video shows. The state countered that on the recorded video the defendant was repeating his rights to show understanding and that the phrase could be a paraphrase or mumbled reply rather than an invocation, citing the district court’s view that the defendant "indicated that he understood" his rights.

Judges pressed both sides on factual points: how many photos were visible in the video exhibit, whether the thumbnail images obscured faces, whether any destruction of evidence was negligent or intentional, and whether the video itself resolves ambiguities about what was said and the speaker’s tone. Defense counsel told the panel the district court misplaced weight on a circular thumbnail and that the state may have intentionally preserved only smaller images to protect an informant, which increased culpability. The prosecutor said the thumbnail cropping appeared consistent across profiles and that several of the photos in the scrolling video do show faces.

No written decision was issued from the bench. After argument the panel excused counsel, said it would take the matter under advisement and promised a written opinion. The court also noted that because the video is in the record the panel can review the recording directly to resolve disputes over what was said.

The court heard this case as the first of two oral arguments scheduled that morning and indicated it would issue a written opinion as soon as practicable.