United States District Court, D. Minnesota
MELINDA A. WILLIAMS AND MANDA M. SERTICH, UNITED STATES
ATTORNEY'S OFFICE, FOR PLAINTIFF.
S. HUNTER, NORTHLAND LAW, FOR DEFENDANT.
PATRICK J. SCHILTZ UNITED STATES DISTRICT JUDGE
Kevin Petroske is charged with eight counts of production and
attempted production of child pornography and one count of
possession of child pornography. The production charges
relate to video recordings of minors taking off their clothes
or showering. Petroske made the videos by surreptitiously
recording the minors through the windows of their homes. It
appears that the main issue at trial will be whether the
videos are pornographic. See United States v.
Kemmerling, 285 F.3d 644, 645-46 (8th Cir. 2002)
(“We have held that more than mere nudity is required
before an image can qualify as ‘lascivious' within
the meaning of the statute.”).
matter is before the Court on Petroske's motion in limine
to exclude the audio portion of the videos. When the videos
are played with the audio, the viewer can hear Petroske's
comments about what he is recording. Typical comments include
“oh, baby, here it comes, ” “nice pussy,
” and “can't see it yet.” At times, the
viewer can also hear the sound of Petroske masturbating.
Petroske moves to exclude the audio under Fed.R.Evid. 403 on
the grounds that “its probative value is substantially
outweighed by a danger of . . . unfair prejudice [or]
confusing the issues . . . .” Petroske is charged under
18 U.S.C. § 2251(a), which, in relevant part, imposes
criminal penalties on “[a]ny person who . . . uses . .
. any minor to engage in . . . any sexually explicit conduct
for the purpose of producing any visual depiction of such
conduct . . . .” “Sexually explicit conduct,
” as relevant in this case, means “lascivious
exhibition of the genitals or pubic area of any
person[.]” 18 U.S.C. § 2256(2)(A)(v). To determine
whether an exhibition is “lascivious, ” the
Eighth Circuit considers the factors first articulated in
United States v. Dost, 636 F.Supp. 828 (S.D. Cal.
1986), aff'd sub nom. United States v. Wiegand,
812 F.2d 1239 (9th Cir.), and aff'd, 813 F.2d
1231 (9th Cir. 1987). These factors include “whether
the visual depiction is intended or designed to elicit a
sexual response in the viewer.” Id. at 832.
The Eighth Circuit has also said, however, that “the
relevant factual inquiry . . . is not whether the pictures in
issue appealed, or were intended to appeal, to [the
defendant's] sexual interests but whether, on their face,
they appear to be of a sexual character.”
Kemmerling, 285 F.3d at 646.
argues that, because the audio portion of the videos
graphically reflects his own sexual interest in the images
that he has recorded, it will lead the jury to consider an
irrelevant issue (that is, whether the videos appealed to
Petroske's sexual interests) while being only minimally
probative of a relevant issue (that is, whether the videos
appealed to a viewer's sexual interests). Having read the
parties' briefs and watched the videos, however, the
Court agrees with the government that Petroske's motion
should be denied.
the merits of Petroske's argument as an original matter,
the Court cannot meaningfully distinguish this case from
United States v. Johnson, 639 F.3d 433 (8th Cir.
2011). In Johnson, the defendant (a coach) made
surreptitious videos of teenaged female athletes taking off
their clothes and weighing themselves. Id. at
435-36. After the videos were discovered, the defendant told
investigators that his “pervertedness got the best of
[him]” and that he wanted to see the girls naked and
thought they were “cute.” Id. at 436. As
in this case, the defendant's statements concerned only
his own sexual interests, and there was no indication that
the defendant ever intended to show the videos to anyone
else. Nevertheless, the Eighth Circuit explained that
“statements made by the producer about the images are
relevant in determining whether the images were intended to
elicit a sexual response in the viewer.” Id.
at 441. It is true, as Petroske argues, that Johnson
did not have occasion to address an argument under Rule 403.
But the Eighth Circuit twice noted that the jury was
instructed not to decide whether the images appealed to the
defendant's sexual interests, id. at 441, 442,
thus implicitly suggesting that any danger of prejudice was
adequately mitigated by the instructions.
case, the audio portion of the videos has even more probative
value than the defendant's statements in
Johnson. After all, the audio is part of
the recording; anyone who watches the videos will hear the
audio. Excluding the audio would deprive the jury of the full
context of the recordings. Indeed, if the audio were
excluded, the jury would be asked to determine whether
something that the defendant did not produce (a
video without sound) was or was not child pornography.
the Eighth Circuit has approvingly noted that captions are a
relevant factor in determining whether a visual depiction is
lascivious. United States v. Ward, 686 F.3d 879, 882
(8th Cir. 2012); see also United States v. Lohse,
797 F.3d 515, 520 (8th Cir. 2015). Much of Petroske's
commentary is akin to captions-albeit oral, rather than
as the government notes, Petroske is charged not only with
producing child pornography, but with
attempting to produce child pornography. “The
elements of attempt are (1) intent to commit the predicate
offense, and (2) conduct that is a substantial step toward
its commission.” United States v. Spurlock,
495 F.3d 1011, 1014 (8th Cir. 2007). Consequently,
Petroske's intent-that is, what he was thinking
when he was recording the minors-will be a crucial issue at
trial. It is difficult to think of evidence that is more
probative of Petroske's intent than the statements he
made while he was in the process of recording the videos.
Court therefore rejects Petroske's argument that the
audio has little probative value and that its probative value
is substantially outweighed by the danger of unfair prejudice
and confusing the issues. As the Court has explained, the
audio has strong probative value-and, particularly after the
Court gives a limiting instruction to the jury, the risk of
unfair prejudice and confusion of the issues will be modest.
Petroske's motion to exclude the audio portion of the
videos is therefore denied.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT defendant's