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United States v. Petroske

United States District Court, D. Minnesota

February 2, 2018


          Melinda A. Williams and Manda M. Sertich, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

          Craig S. Hunter, NORTHLAND LAW, for defendant.


          Patrick J. Schiltz United States District Judge

         A jury 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.

         I. BACKGROUND

         Counts 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).

         “Sexually 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).

         Before 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)).

         Second, 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.

         The 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.

         At 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, 67.

         Petroske 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 pornography.

         Despite 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 criminal.

         At the 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 ...

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