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United States v. Petroske

United States Court of Appeals, Eighth Circuit

July 2, 2019

United States of America Plaintiff - Appellee
v.
Kevin James Petroske Defendant-Appellant

          Submitted: March 14, 2019

          Appeal from United States District Court for the District of Minnesota - St. Paul

          Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.

          ERICKSON, CIRCUIT JUDGE.

         Kevin Petroske was found guilty of eight counts of production or attempted production of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e) and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). The district court[1] denied Petroske's post-verdict motions for acquittal or a new trial, and sentenced him to concurrent 240-month sentences on each count. Petroske appeals, asserting that several district court rulings require reversal and a new trial. We affirm.

         I. Background

         In October of 2015, the Hibbing, Minnesota, Police Department received a report that a man was peering into a residence. Police were dispatched to the location and found Petroske hiding in a shed in the backyard of a nearby residence.

         Law enforcement officers sought and obtained a warrant authorizing a search of Petroske's residence. During the search, officers seized a laptop computer. A forensic examination of the laptop revealed a number of video files involving minors, some of whom lived in the Hibbing area. The examination also revealed a Word document in which Petroske summarized the steps he took to produce the videos and, in his words, obtain "sexual gratification."

         The videos at issue involved surreptitious recordings of four minors in their own homes. The minors were in various states of undress, such as before or after exiting a shower. In several of the videos, Petroske can be heard making suggestive remarks. The videos were located in a computer folder focused on voyeuristic pornography. Petroske had a history of being involved in similar activity, having previously been convicted of felony stalking and a gross misdemeanor for interference with privacy near St. Cloud, Minnesota.

         Petroske was charged with eight counts of production or attempted production of child pornography and one count of possession of child pornography. Six of the production and attempted production counts contained audio of Petroske's voice in addition to the video recording. Petroske moved in limine to exclude the audio portion of the recordings as being unfairly prejudicial. The district court denied the motion, concluding the audio was relevant to determine whether the images were intended to elicit a sexual response and to establish the necessary intent to prove attempt.

         Petroske also sought a pretrial ruling that, as a matter of law, none of the eight videos included a lascivious exhibition of the genitals of a minor. After reviewing the videos, the court determined that five of the videos supported at most attempted production of child pornography and the other three videos created a jury question on whether they established attempted production or production of child pornography.

         Petroske testified at trial, explaining on direct examination that he had a compulsion to engage in voyeurism. During his testimony, Petroske told the jury how and why he produced voyeuristic videos. During cross-examination, Petroske confirmed that his goal in filming was to capture depictions of the victims' genitals.

         Petroske objected to the following proposed jury instruction defining "lascivious exhibition:"

Visual depictions of children acting innocently can be considered lascivious if they are intended by the producer or editor to be sexual. The relevant inquiry is not whether the visual depictions appealed or were intended to appeal to the defendant's sexual interests, ...

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