United States v. Wells, 16-8012

• Decision Date: 16 December 2016
• Docket Number: No. 16-8012,16-8012
• Citation: 843 F.3d 1251
• Parties: United States of America, Plaintiff-Appellee, v. Timothy Michael Wells, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

843 F.3d 1251

United States of America, Plaintiff-Appellee,

v.Timothy Michael Wells, Defendant-Appellant.

No. 16-8012

United States Court of Appeals, Tenth Circuit.

Filed December 16, 2016

Wendy Curtis Palen, of Palen Law Offices, LLP, Glendo, Wyoming, for Defendant-Appellant.

Christopher A. Crofts, United States Attorney, Thomas Szott, Assistant United States Attorney, Office of the United States Attorney, Cheyenne, Wyoming, for Plaintiff-Appellee.

Before BRISCOE, EBEL and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Timothy Michael Wells appeals from his conviction following a jury trial of sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a) and (e), for which he received the mandatory minimum sentence of 180 months' imprisonment.¹ The only issue raised by Wells is whether the jury had sufficient evidence to convict him of sexual exploitation of a child. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.²

I

"We review a sufficiency of the evidence challenge de novo, viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the government." United States v. Rodebaugh, 798 F.3d 1281, 1296 (10th Cir. 2015) (quoting United States v. Hale, 762 F.3d 1214, 1222 (10th Cir. 2014) ). "We will reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.(quoting Hale, 762 F.3d at 1222–23 ). "In other words, we ask whether ‘a reasonable jury could find the defendant guilty.’ " Id.(quoting United States v. King, 632 F.3d 646, 650 (10th Cir. 2011) ). "In conducting this review we may neither weigh conflicting evidence nor consider the credibility of witnesses. It is for the jury, as the fact finder, to resolve conflicting testimony, weigh the evidence, and draw inferences from the facts presented." Id.(quoting United States v. McKissick, 204 F.3d 1282, 1289–90 (10th Cir. 2000) ). "That is, ‘we owe considerable deference to the jury's verdict.’ " United States v. Dewberry, 790 F.3d 1022, 1028 (10th Cir. 2015) (quoting United States v. Mullins, 613 F.3d 1273, 1280 (10th Cir. 2010) ).

II

In a superseding indictment, a federal grand jury charged Wells with violating 18 U.S.C. § 2251(a) by intentionally producing videos of his then-minor stepdaughter, A.M., which visually depicted her engaged in "sexually explicit conduct" in her bathroom.³ Specifically, the government charged that at least one of those videos depicts a "lascivious exhibition" of A.M.'s "genitals or pubic area," a category of "sexually explicit conduct." 18 U.S.C. § 2256(2)(A)(v). The sole issue in this appeal is whether a rational jury could have found beyond a reasonable doubt that any of the videos depicts such a lascivious exhibition of A.M.'s genitals or pubic area.

The term "lascivious exhibition" is not defined by statute. SeeUnited States v. Wolf, 890 F.2d 241, 243 (10th Cir. 1989). We have adopted a set of six "factors" that, " ‘among any others that may be relevant in the particular case,’ " are used "in determining whether a visual depiction of a minor constitutes a ‘lascivious exhibition of the genitals or pubic area’ " under § 2256(2)(A)(v). Id. at 244 (quoting United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom.United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) ); id. at 245 (adopting the "Dost factors"). Those factors are:

(1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and](6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Id. at 244 (footnote omitted) (quoting Dost, 636 F.Supp. at 832 ); see alsoUnited States v. Soderstrand, 412 F.3d 1146, 1155 (10th Cir. 2005) (acknowledging the Dost factors).

Wells and the government agree in principle that the Dost factors guide our inquiry. They also agree that the third and fifth factors are not implicated because none of the videos depict A.M. in an unnatural pose or in inappropriate attire, as she is nude in her bathroom, and her actions there suggest neither sexual coyness nor a willingness to engage in sexual activity. We therefore need not discuss the third or fifth factor.

As Wells concedes, moreover, the absence of those factors is not dispositive. We held in Wolf that "all six factors need not be present in order to bring the depiction under the proscription of the statute," 890 F.2d at 245, and we did "not hold that more than one Dost factor must be present to constitute a violation of 18 U.S.C. § 2251(a)." Id. at 245 n.6. Whether an image depicts a lascivious exhibition of the genitals or pubic area instead turns on the "overall content of the visual depiction." Dost, 636 F.Supp. at 832.

III

Wells raises three challenges to the jury's finding that the overall content of the videos depicts a lascivious exhibition of A.M.'s genitals or pubic area. First, he suggests that he instead should have been convicted of voyeurism. Second, he argues that A.M.'s actions and state of mind are relevant. Finally, he contends that the evidence does not show he was aroused by the videos or that they are otherwise lascivious exhibitions.

A. Voyeurism

Wells suggests that creating the videos was mere voyeurism, not production of child pornography. He is correct that 18 U.S.C. § 1801(a) criminalizes the "intent to capture an image of a private area of an individual without their consent, and knowingly do[ing] so under circumstances in which the individual has a reasonable expectation of privacy...." But he elides a key distinction here between § 1801(a) and § 2251(a).

Specifically, under § 1801(a), a defendant's motive for capturing such an image is not an element of the offense, only his intent to capture that image. In contrast, § 2251(a) only criminalizes capturing "sexually explicit conduct," which in these circumstances implicates whether Wells "intended or designed" the videos to "elicit a sexual response" in himself, an additional element requiring additional proof. Wolf, 890 F.2d at 244 (quoting Dost, 636 F.Supp. at 832 ). Whether Wells alternatively could have been convicted of violating § 1801(a) does not undermine the jury's decision to convict him of the more serious offense of violating § 2251(a) by using A.M. to produce a lascivious exhibition.

B. A.M.'s Actions and State of Mind

Wells contends that we must consider whether A.M.'s behavior shown on the videos or her testimony at trial indicate that she believed (or would have believed, if she had seen them) that the videos were sexual in nature. To the contrary, in Wolf, we explicitly "rejected the notion that" § 2251(a)"places the onus of lust on the child being photographed." Id. at 245 (citing Wiegand, 812 F.2d at 1244 ). Rather, a visual depiction of a minor is "a lascivious exhibition because the photographer array[s] it to suit his peculiar lust ." Id.(quoting Wiegand, 812 F.2d at 1244 ).

Further, in Wolf, we agreed with the Ninth Circuit that:

In the context of the statute applied to the conduct of children, lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or [like-minded] pedophiles.... The picture of a child "engaged in sexually explicit conduct" ... is a picture of a child's sex organs displayed lasciviously—that is, so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.

Id.(first elision in original, second elision added) (quoting Wiegand, 812 F.2d at 1244 ). Thus, we held, "a sexually exploitative photograph of a child need not portray the victim in a pose that depicts lust, wantonness, sexual coyness or other inappropriate precocity" for the defendant to be guilty of violating § 2251(a). Id. at 247 (quotation marks omitted).

Therefore, we do not consider A.M.'s actions or state of mind when evaluating the sufficiency of the evidence against Wells. For example, contrary to Wells's suggestion, it is of no import that A.M.'s "state of undress," which was "consistent with common bathroom activities," indicates that she viewed her own actions as nonsexual. Aplt. Br. at 8. Nor does it matter that A.M. continued to use her bathroom after discovering the video camera Wells installed there. The issue is what Wells thought, not what A.M. thought about the necessity of undressing to shower or use the toilet. SeeWolf, 890 F.2d at 245. Further, of course, a minor cannot consent to production of child pornography. Id. at 247 (quoting Wiegand, 812 F.2d at 1245, for the proposition that a child cannot "consent" to be "treated as a thing").

For the same reason, A.M.'s purported responses to Wells's other actions are irrelevant to reviewing the jury's findings with respect to his view of the depictions of A.M. in the videos. And, in any event, A.M. testified that she did not consent to and instead resisted Wells's conduct. Wells's arguments with respect to A.M.'s actions and state of mind are therefore without merit and do not undermine the jury's verdict.

C. Wells's Actions and Intent

We have examined all of the evidence presented at trial, none of which Wells objected to then, or objects to here. Wells testified to having intentionally placed a video camera in several locations in A.M.'s bathroom, aimed the camera's lens at A.M.'s toilet or shower, and intentionally set the camera to record any activity. He acknowledged that he transferred those recordings to his laptop computer. Wells also admitted to having culled from that footage all...