Submitted: March 14, 2019
from United States District Court for the District of
Minnesota - St. Paul
SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
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 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.
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.
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."
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,
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.
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.
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.
objected to the following proposed jury instruction defining
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, ...