LOGAN, Utah — The Utah Court of Appeals on oral argument considered whether prosecutors’ destruction of a profile photo used in an undercover online sting undermined a conviction and whether the defendant’s later statements amounted to an unambiguous invocation of his right to counsel.

Natalie Scabine, counsel for defendant Kyum, told the three-judge panel that the state “destroyed the profile it used to attract mister Khayyam and the only photograph he had seen at the time he solicited the woman in that photograph.” Scabine argued the missing profile photo was likely exculpatory because it would have changed how jurors read the text exchanges and could support entrapment and ineffective-assistance claims.

“Guilt in this case depended on two things,” Scabine said, “that mister Khayyam believed the woman in the dating profile was 13, and that using an adult model did not create a substantial risk…that the offense would be committed by one not otherwise ready to commit it.” She urged the panel that the destroyed image was material to both the entrapment and due-process analyses.

Emily Saab, arguing for the state, countered that the appellant offered only speculation about what a larger profile photo would have shown. “It is clear from the chats that he believed she was 13,” Saab told the panel, and the state has several photos and a scrolling video exhibit in the record that, the state said, made it unlikely that a different copy of the profile image would have produced a different outcome.

Judges pressed both sides on the record’s contents and the legal standards. At one point a judge asked whether the larger profile photo itself was in the record; counsel identified a video exhibit that scrolls through multiple images and a print copy of the text exchange that had been entered at trial. The parties debated whether a thumbnail image in the record showed enough of a face to permit the defense to argue the defendant believed the profile person was an adult.

The panel also examined whether the defendant’s words during his arrest — a recording in the court record — amounted to an ambiguous or unambiguous invocation of the right to counsel. Scabine argued the defendant expressed a desire to deal with police through counsel; the state said the video shows the defendant repeating his rights back to demonstrate understanding and that the record supports the district court’s findings that he indicated he understood his rights.

Counsel cited precedent during argument, and the judges asked whether the district court’s factual conclusions should be reviewed for clear error or reviewed de novo where the video evidence is available for the panel to view. Both sides acknowledged transcript variations and invited the court to watch the video in the record.

After questioning and rebuttal, Judge John Luthy thanked counsel and said the panel would take the matter under advisement and “issue a written opinion as soon as we are able.” No ruling was announced from the bench.

The court’s written opinion will determine whether the destroyed profile image meets the threshold of a reasonable probability of being exculpatory and whether any prejudice to the defense requires reversing the conviction, as well as resolve the Miranda-waiver question the parties raised.