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
convicted defendant Kevin James Petroske of production or
attempted production of child pornography (Counts Two, Four,
and Seven), attempted production of child pornography (Counts
One, Three, Five, Six, and Eight), and possession of child
pornography (Count Nine). ECF No. 57. This matter is before
the Court on Petroske's motions for acquittal on Counts
One through Eight or, in the alternative, a new trial. Fed.
R. Crim. P. 29(c) and 33. (Petroske does not challenge his
conviction on Count Nine.) For the reasons that follow,
Petroske's motions are denied.
One through Eight of the original indictment charged Petroske
with producing or attempting to produce child pornography,
based on allegations that he surreptitiously recorded minors
in various states of undress through their bathroom or
bedroom windows on at least eight occasions in 2011 and 2015.
ECF No. 1. In order to convict Petroske of any of those
charges, the jury had to find that Petroske used-or intended
to use and took a substantial step toward using-a minor to
engage in “sexually explicit conduct.” 18 U.S.C.
§ 2251(a); see also United States v. Young, 613
F.3d 735, 742 (8th Cir. 2010).
explicit conduct, ” as relevant to this case, includes
the “lascivious exhibition of the genitals or pubic
area of any person.” 18 U.S.C. §§ 2251(a),
2256(2)(A)(v). Although the controlling statutes do not
define “lascivious exhibition, ” the Eighth
Circuit applies the factors listed 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. 1987), and aff'd, 813 F.2d 1231 (9th Cir.
1987). United States v. Johnson, 639 F.3d 433, 439
(8th Cir. 2011). The Dost factors include:
“(1) whether the focal point of the picture is on the
minor's genitals or pubic area; (2) whether the setting
of the picture is sexually suggestive; (3) whether the minor
is depicted in unnatural poses or inappropriate attire
considering the minor's age; (4) whether the minor is
fully or partially clothed or is nude; (5) whether the
picture suggests sexual coyness or a willingness to engage in
sexual activity; and (6) whether the image is intended to
elicit a sexual response in the viewer.”
Johnson, 639 F.3d at 439. The Eighth Circuit also
considers two additional factors: “(7) whether the
image portrays the minor as a sexual object; and (8) any
captions on the images.” United States v.
Lohse, 797 F.3d 515, 520 (8th Cir. 2015) (citing Eighth
Circuit Model Crim. Jury Instr. 6.18.2252A).
trial, Petroske made two motions in limine. First, Petroske
asked the Court to exclude from evidence the audio on the
videos. ECF No. 28. The audio contains Petroske's
comments about what he is recording. “Typical comments
include ‘oh, baby, here it comes, ' ‘nice
pussy, ' and ‘can't see it yet.'” ECF
No. 30 at 1-2. Relying on the (expanded) Dost
factors, the Court found that the audio was akin to aural
captions and was necessarily part of the videos Petroske
produced. The Court therefore denied Petroske's motion.
See Id. at 4 (citing United States v. Ward,
686 F.3d 879, 882 (8th Cir. 2012)).
Petroske asked the Court to rule that, as a matter of law,
none of the eight videos included a lascivious exhibition of
the genitals of a minor. ECF No. 40 at 3-6; see also
United States v. Rayl, 270 F.3d 709, 714 (8th Cir.
2001). After careful review, the Court found that the videos
identified in Counts One, Three, Five, Six, and Eight either
did not exhibit genitals at all or exhibited genitals so
fleetingly that a reasonable jury could not find the
exhibition to be lascivious. Nonetheless, the Court could not
rule out the possibility that Petroske had intended
to capture a lascivious exhibition of genitals when he
recorded the videos underlying those five counts.
Accordingly, the Court granted in part and denied in part
Petroske's motion, allowing Counts One, Three, Five, Six,
and Eight to proceed on only the attempted-production
charges, but allowing Counts Two, Four, and Seven to proceed
on both the production and attempted-production charges.
See Superseding Indictment, ECF No. 45.
government also filed motions in limine seeking to admit
evidence that Petroske had been convicted in May 2015 of
multiple counts of stalking and peeping at adult women and
evidence regarding 51 videos found on Petroske's cell
phone at the time he was arrested for that crime.
See ECF No. 39 at 28. The Court agreed to admit the
evidence under Fed.R.Evid. 404(b) for the limited purpose of
establishing Petroske's intent. See ECF No. 48.
trial, almost none of the material facts were disputed.
Petroske took the stand and readily admitted that he had
surreptitiously recorded his victims. Trial Tr. Vol. II, ECF
No. 69, at 31-39, 46-47; Trial Exs. 40-44. Petroske also
admitted that on some of the charged videos, he can be heard
masturbating and commenting on the bodies of the victims.
See Trial Tr. Vol. II at 13-15, 47. Petroske
conceded that he is a voyeur-that is, a person who is
sexually aroused by spying on unsuspecting people when they
are naked or engaged in sexual conduct. See Id. at
8-9, 49-52. Finally, Petroske admitted that he is sexually
attracted to minors, wanted to record the exposed genitals of
his victims, and would have been excited to record his
victims engaging in sexual conduct. Id. at 36-37,
disputed only one thing at trial: He denied that he had
used-or had intended to use-a minor to engage in
“sexually explicit conduct.” Petroske emphasized
that none of the videos that he had recorded captured a minor
engaging in sexual intercourse or any other type of sexual
behavior. Petroske also stressed that his videos had not been
shot or edited to focus on the genitals of the minors.
Neither of these points was in dispute; the only question was
what weight the jury would give to these factors in deciding
whether Petroske had produced or attempted to produce child
the fact that almost nothing was in dispute, the government
conducted a wide-ranging cross examination of Petroske that
at times seemed to have little to do with the questions that
the jury had to decide and much to do with embarrassing
Petroske and inflaming the jurors' emotions. In the
course of its cross examination, the government elicited
irrelevant testimony about, among other things,
Petroske's character, sexual proclivities, and past
convictions. See, e.g., id. at 55-56
(eliciting testimony that Petroske scouted his victims and
brought a stool and lotion with him to masturbate);
id. at 63-64 (eliciting testimony about the prior
victims of Petroske's stalking); id. at 65-66
(eliciting testimony that Petroske viewed the videos he
produced as sexual). Petroske's attorney did not object,
most likely because his strategy was to portray Petroske as
repentant, honest, and open-a defendant who was sorry for
engaging in acts that were morally reprehensible but not
close of testimony, the Court admonished the government for
straying far beyond the issues that were in dispute:
With respect to those [videos] that show genitals, the
question is whether those genitals are lasciviously exhibited
and if they're not, whether the defendant attempted to
capture the lascivious exhibition of genitals. And with
respect to those [videos] that don't have genitals, we
have the attempt question. That's what we're
deciding. Everything else, as far as I can tell, the
defendant has conceded, literally everything else. And yet we
spent tons of time yesterday on things that have nothing to
do with those issues . . . .
. . . Mr. Petroske can't be convicted because he's a
creepy stalker guy . . . and yet much of the cross-
examination was just 404(a) writ large: you know, easy
pickins, hunting, your stool, your police scanner, how cold
it was. None of that has anything to do with whether there is
a lascivious exhibition of genitals on these visual
depictions. It's all simply designed to inflame the jury
and get them to convict him whether or not he created or
attempted to create child pornography. And if there had been
objections, there would've been a number of them
sustained. . . .
. . . [T]he Eighth Circuit, for better or worse, has told us
that the question is not whether the depictions appeal or
intended to appeal to the defendant's sexual interests,
and yet we heard question after question . . . about his
sexual interests: Did you find her a sexual object? Did you
bring your lotion with you? Is that you masturbating on
there? Why the government insists on focusing the jury on