                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2493
                         ___________________________

                              United States of America,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

                               Shannon Marie Adams,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 16, 2015
                               Filed: June 18, 2015
                                 ____________

Before COLLOTON, BEAM, and KELLY, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

      A jury convicted Shannon Adams of sex trafficking of a minor, in violation of
18 U.S.C. § 1591(a)(1), and acquitted her of knowingly permitting her minor child
to engage in the production of child pornography, in violation of 18 U.S.C. § 2251(b).
Adams appeals, arguing that the evidence was insufficient to support her conviction,
and that the district court1 erred in denying her pretrial motion to dismiss the child
pornography charge. We conclude that there was sufficient evidence to support the
conviction, and that any error in denying the motion to dismiss was harmless. We
therefore affirm the judgment.

                                          I.

       There were credibility disputes at the trial, but for purposes of reviewing the
sufficiency of the evidence, we set forth the evidence in the light most favorable to
the jury’s verdict. On October 31, 2011, Adams took her 16-year-old daughter, whom
we will call “M,” out of school and brought her to Don Ray Harris’s house. Harris,
a paraplegic who has used a wheelchair for over 30 years, is a veteran and has
received morphine pills monthly from the Veterans Administration for 25 years.
Harris regularly sold and gave away some of his pills, and Adams was one of his
customers.

       Before arriving at Harris’s house, Adams called him several times. During one
of their phone calls, Adams told Harris that M wanted to “show her tits” to him in
exchange for two morphine pills. She said bluntly: “two tits; two morphine.” Adams
told M that Harris was dying and depressed, and that it would make him happy if M
“flashed” her breasts for him.

       When Adams and M arrived at Harris’s house, M showed her breasts to Harris
in his bedroom. Harris then instructed M to sit on his bed and remove her clothes.
M complied. Harris joined M on the bed, fondled her breasts and genital area, and
then performed oral sex on her.



      1
       The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.

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        Harris thereafter took two nude pictures of M with a Kodak camera. Harris
testified that Adams retrieved the Kodak camera for him and encouraged him to take
pictures of M. According to Harris, Adams said that M needed to get experience
posing for pictures to prepare her to be a Playboy model, and Adams encouraged M
to smile for the pictures as she would for Playboy magazine. After the pictures were
taken, Harris gave Adams two morphine pills, and Adams ingested them. Adams and
M then left the house.

       After the incident, Harris told a female acquaintance about the nude
photographs and asked if she would assist him in developing the film. The
acquaintance reported the incident to police, and the police commenced an
investigation. M also wrote her boyfriend a note about the incident, in which M said
that Adams “was willing to use my body to feed her addiction.” The boyfriend’s
mother gave the note to police.

       Police obtained a search warrant for Harris’s home and found undeveloped
rolls of film and the Kodak camera used to take the photos. The film was developed,
and police found two nude photographs of M. One of the photographs depicted M
lying nude on her stomach. The second photograph depicted M lying nude on her
back, with one knee bent to obscure her genital area. The government relied on the
second photograph to support child pornography charges against Adams and Harris.

      A grand jury eventually charged Harris and Adams in a three-count
superseding indictment. Adams was charged with permitting her minor child to
engage in the production of child pornography, in violation of 18 U.S.C. § 2251(b).
Harris was charged with production of child pornography, in violation of 18 U.S.C.
§ 2251(a) and possession of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B). Both Adams and Harris were charged with sex trafficking of a
minor, in violation of 18 U.S.C. § 1591(a)(1). Harris pleaded guilty to possession of



                                         -3-
child pornography, and the government agreed to dismiss the other charges against
him in exchange for his cooperation in the prosecution of Adams.

       Adams moved to dismiss the charge that she produced child pornography,
arguing that the photograph of M did not portray sexually explicit conduct. Section
2251 criminalizes the creation of any “visual depiction” of a minor engaged in “any
sexually explicit conduct.” Under 18 U.S.C. § 2256(2)(A), “sexually explicit
conduct” includes “lascivious exhibition of the genitals or pubic area of any person.”
The superseding indictment charged Adams with permitting M to engage in
lascivious exhibition of her genitals and pubic area with the intent to produce a visual
depiction of that conduct.

       Adams argued that the photograph did not depict M’s genitals or pubic area
and thus could not support a conviction under § 2251(b). Apparently without
viewing the photograph, the district court denied Adams’s motion to dismiss,
concluding that the question whether the photograph depicted a “lascivious exhibition
of the genitals or the pubic area” was a question of fact that should be resolved by the
jury. Adams then proceeded to trial on both charges.

       At trial, Adams testified that there was no discussion about Harris giving her
pills before she arrived at his house. She also denied having been in and out of the
bedroom while Harris was engaging in sexual contact with M, and she claimed that
she did not even know that any photographs of M were taken. M testified, however,
that Adams was in and out of the bedroom during the time that she and Harris were
there, and that she did not think Adams objected to what Harris was doing.

      The jury found Adams guilty of sex trafficking of a minor and not guilty of
production of child pornography. The district court sentenced Adams to 120 months’
imprisonment and 5 years of supervised release.



                                          -4-
                                           II.

      Adams contends that the evidence presented at trial was insufficient to support
her conviction for sex trafficking. In reviewing that contention, we must view the
evidence in the light most favorable to the verdict and uphold the judgment if a
reasonable jury could find guilt beyond a reasonable doubt. United States v.
McMurray, 34 F.3d 1405, 1412 (8th Cir. 1994).

       Adams argues that the evidence did not establish the requisite mental state for
a conviction under 18 U.S.C. § 1591(a). Section 1591 establishes criminal
punishment for whoever “knowingly . . . provides . . . a person . . . knowing, or in
reckless disregard of the fact, . . . that the person has not attained the age of 18 years
and will be caused to engage in a commercial sex act.” Adams protests that she did
not knowingly bring M to Harris’s house with knowledge or reckless disregard that
M would be caused to engage in a sex act in exchange for morphine pills. The parties
appear to assume that displaying breasts is not a “sex act” (the statute does not define
the term), so they debate whether the government showed that Adams acted with
knowledge or reckless disregard of the fact that M would be caused to allow Harris
to touch her genitals and perform oral sex in order to procure pills for Adams. Cf. 18
U.S.C. § 2246(2) (defining “sexual act”).

       Adams denies that she asked Harris for morphine pills in exchange for M
showing him her breasts. And, in any event, she claims that she did not expect Harris
to do anything more than look at M’s breasts. She further argues that Harris did not
give her the morphine pills as payment for a sex act with M, but rather as an attempt
to “purchase her silence” and calm her down because she was upset about what had
occurred.

      Based on the testimony of Harris and M, however, a reasonable jury could infer
that Adams had the requisite knowledge. Harris testified that Adams spoke in terms

                                           -5-
of a transaction before Adams and M arrived at his house: “two tits; two morphine.”
M similarly understood that her mother was going to get “something out of” M
showing her breasts to Harris. As for whether Adams knew or recklessly disregarded
that the exchange would involve M engaging in a sex act beyond displaying her
breasts, both M and Harris testified that Adams was in and out of Harris’s bedroom
while Harris fondled M and performed oral sex. A jury reasonably could infer that
Adams knew that a sex act would occur and allowed it to proceed in order to procure
morphine pills from Harris. There was sufficient evidence to sustain the verdict.

      Adams also challenges the district court’s denial of her motion to dismiss the
charge that she produced child pornography by permitting M to be photographed in
the nude while reclining on Harris’s bed. She argues that M’s genitals and pubic area
were not visible in the photograph, and that the district court therefore should have
concluded as a matter of law before trial that the photograph did not portray a visual
depiction of a minor engaged in sexually explicit conduct. Although Adams
ultimately was acquitted of the production charge, she contends that the district
court’s ruling allowed the government to introduce the photograph at trial. She
argues that the ruling prejudiced her defense on the sex trafficking charge, because
the production charge injected irrelevant issues and forced her to testify in her
defense to explain the photograph. She seeks a new trial on the sex trafficking charge
at which the photograph would be excluded.

       Assuming for the sake of analysis that the district court properly could address
a challenge to sufficiency of the evidence in response to a pretrial motion, cf. United
States v. Mennuti, 639 F.2d 107, 108-09 & n.1 (2d Cir. 1981), the district court’s
denial of Adams’s motion did not unfairly prejudice her defense of the sex trafficking
charge. The photograph of M reclining in the nude on Harris’s bed was relevant to
whether Adams knew that M would be caused to engage in a commercial sex act.
The government’s evidence was that Adams retrieved the camera used in producing
the photograph and encouraged M to gain experience similar to posing for Playboy


                                         -6-
magazine. That Adams participated in the photo session while M was nude on
Harris’s bed tends to corroborate other evidence that Adams knew about M’s
participation in a sex act with Harris. Any error in the district court’s denial of
Adams’s motion to dismiss was therefore harmless.

      The judgment of the district court is affirmed.
                     ______________________________




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