                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-1572
                       ___________________________

                            United States of America

                                     Plaintiff - Appellee

                                       v.

                             Kevin James Petroske

                                   Defendant - Appellant
                                ____________

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

                           Submitted: March 14, 2019
                              Filed: July 2, 2019
                                ____________

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 court1 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.




      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.

                                          -2-
       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, but whether,
      on their face, they appear to be of a sexual character.

The district court overruled Petroske’s objection on the ground that the instruction
accurately described the law.

                                          -3-
       Before giving the jury the verdict form, the district court expressed concerns
to counsel that some of Petroske’s testimony on cross-examination ran the risk of
inflaming the jurors’ passions. After hearing from counsel, the court gave a curative
instruction that reminded the jury that Petroske was not on trial “for trespassing or
stalking or [in]vading privacy or being a peeping tom” and directed the jury to remain
focused on the essential elements of the counts. The jury eventually found Petroske
guilty of five counts of attempted production of child pornography, three counts of
production or attempted production of child pornography, and one count of
possession of child pornography.

       Petroske moved for a judgment of acquittal, renewing his claim that the content
in the videos did not involve a lascivious exhibition of the genitals. Alternatively,
Petroske moved for a new trial on the ground that the jury’s passions were inflamed
because of statements that were not relevant to the charges. The district court denied
the motions, holding that a reasonable jury could have found Petroske guilty of each
of the counts. In doing so, the court noted that it was unlikely the jury decided the
case on an improper basis. The court expressed confidence that the jury would have
convicted Petroske with or without the disputed testimony.

      II.    Discussion

             A.    Evidentiary Rulings

      “We review the district court’s evidentiary rulings, including its ruling[s] on
motions in limine, for an abuse of discretion.” United States v. Jirak, 728 F.3d 806,
813 (8th Cir. 2013) (quoting United States v. Parish, 606 F.3d 480, 486 (8th Cir.
2010)). “[W]e will not reverse a conviction if an error was harmless.” United States
v. Donnell, 596 F.3d 913, 919 (8th Cir. 2010) (citing United States v. Espinosa, 585
F.3d 418, 430 (8th Cir. 2009)). “The test for harmless error is whether the erroneous
evidentiary ruling had a substantial influence on the jury’s verdict.” Id. (internal

                                         -4-
quotation marks omitted) (quoting United States v. Lupino, 301 F.3d 642, 645 (8th
Cir. 2002)).

       Petroske argues that the audio content of the videos was unfairly prejudicial
such that exclusion of the audio was required under Federal Rule of Evidence 403.
Rule 403 “does not offer protection against evidence that is merely prejudicial in the
sense of being detrimental to a party’s case.” United States v. McCourt, 468 F.3d
1088, 1092 (8th Cir. 2006) (quoting United States v. Johnson, 463 F.3d 803, 809 (8th
Cir. 2006)). Rather, the “rule protects against evidence that is unfairly prejudicial.”
Id. (quoting Johnson, 463 F.3d at 809).

        “[M]ore than mere nudity is required before an image can qualify as
‘lascivious’ within the meaning of the [child pornography] statute.” United States v.
Kemmerling, 285 F.3d 644, 645–46 (8th Cir. 2002). Lasciviousness may be found
when an image of a nude or partially clothed child focuses on the child’s genitals or
pubic area and is intended to elicit a sexual response in the viewer. Id. at 646. In
determining whether the statute was violated, we analyze “not whether the pictures
in issue appealed, or were intended to appeal” to the videographer’s sexual interests
but whether “on their face, they appear to be of a sexual character.” Id.

        In this case, Petroske’s intent is critical to establishing the attempt charges.
Petroske’s statements on the videos were probative as to whether Petroske intended
to produce lascivious footage and were relevant for the jury to consider whether the
videos on their face were of a sexual nature. Cf. United States v. Sims, 708 F.3d 832,
835 (6th Cir. 2013) (discussing 18 U.S.C. § 2251(a), (e) and explaining that to
convict on charge of attempted production of child pornography the government had
to show beyond a reasonable doubt that the defendant “specifically intended to create




                                          -5-
child pornography” when he filmed a minor through her window). The district court
did not abuse its discretion in admitting the audio components of the videos.2

             B.     Jury Instructions

        We review jury instructions for abuse of discretion. United States v. Dvorak,
617 F.3d 1017, 1024 (8th Cir. 2010) (citing United States v. Gill, 513 F.3d 836, 849
(8th Cir. 2008)). “In conducting such review, this court must determine whether the
instructions, taken as a whole and viewed in light of the evidence and applicable law,
fairly and adequately submitted the issues in the case to the jury.” Id. (quoting United
States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000)).

       Petroske challenges the instruction on two grounds. First, he argues that the
instruction allowed the jury to find lascivious exhibition without requiring it to find
that the videos depict the minors engaged in sexually explicit or suggestive conduct.
But the “fact that the young women in the videos were not acting in an obviously
sexual manner, suggesting coyness or a willingness to engage in sexual activity, does
not necessarily indicate that the videos themselves were not or were not intended to
be lascivious.” United States v. Johnson, 639 F.3d 433, 440 (8th Cir. 2011). Whether
or not a video involves a “‘lascivious exhibition’ is not the work of the child, whose
innocence is not in question, but of the producer or editor of the video.” United
States v. Ward, 686 F.3d 879, 883 (8th Cir. 2012) (quoting United States v. Horn, 187
F.3d 781, 790 (8th Cir. 1999)). The jury was thus properly instructed in this regard.

       Second, Petroske asserts the instruction is inconsistent in instructing the jury
to disregard whether the depictions appealed to Petroske’s sexual interests but to
focus on whether Petroske intended the depictions to be of a sexual character. In


      2
      Given Petroske’s self-incriminating testimony, any error that might exist
would be harmless beyond a reasonable doubt.

                                          -6-
determining whether depictions are lascivious, “the relevant factual inquiry . . . is not
whether the pictures in issue appealed, or were intended to appeal, to [a defendant’s]
sexual interests but whether, on their face, they appear to be of a sexual character.”
Kemmerling, 285 F.3d at 646. We see no inconsistency between instructing the jury
that it could not consider Petroske’s own sexual interests, but could consider whether
Petroske, as the producer or editor of the videos, intended for the depictions to be
sexual because the two statements are not mutually exclusive. A producer or editor
of a lascivious depiction of children may intend for the depiction to be sexual,
regardless of his own personal sexual interests. Upon careful review, we are satisfied
that the jury instructions fairly and adequately informed the jury on the applicable
law.

             C.     Denial of Motion for Judgment of Acquittal

      “We review the denial of a motion for acquittal de novo . . . viewing the
evidence in the light most favorable to the guilty verdict, resolving all evidentiary
conflicts in favor of the government, and accepting all reasonable inferences
supported by the evidence.” United States v. Samuels, 611 F.3d 914, 917 (8th Cir.
2010) (citations omitted). “A jury verdict will not lightly be overturned.” Id. (citing
Donnell, 596 F.3d at 924). “We will affirm if, ‘after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” United States v. Lohse,
797 F.3d 515, 520 (8th Cir. 2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).

       The meaning of “lascivious exhibition of the genitals or pubic area” is a matter
of law reviewed de novo. Horn, 187 F.3d at 789. Whether the materials actually
depict a lascivious exhibition is a question of fact. Kemmerling, 285 F.3d at 645. We
have considered the following factors to determine whether or not images meet the
lasciviousness requirement:

                                          -7-
      (1) whether the focal point of the image is on the minor’s genital or
      pubic area; (2) whether the setting of the image 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 image 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.

Id. (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)). In addition
to these six “Dost factors,” we have suggested analyzing “(7) whether the image
portrays the minor as a sexual object; and (8) any captions on the images.” Id. (citing
Eighth Circuit Model Criminal Jury Instructions 6.18.2252A).

       The elements of attempt are “intent to commit the predicate offense” and
“conduct that is a substantial step toward its commission.” United States v. Young,
613 F.3d 735, 742 (8th Cir. 2010) (quoting United States v. Spurlock, 495 F.3d 1011,
1014 (8th Cir. 2007)). A reasonable jury could have found beyond a reasonable
doubt that Petroske intended to create child pornography and took a substantial step
toward doing so by recording the videos. Petroske’s own testimony at trial indicated
that he intended to capture the children while they were nude and that, in particular,
he wanted the videos to capture depictions of their genitals. The audio associated
with the videos confirms his trial testimony and demonstrates that he intended for the
videos to be sexually suggestive. There was sufficient evidence for a jury to conclude
that Petroske attempted to produce child pornography.

       Similarly, after considering the Dost factors and the two additional factors we
identified in Kemmerling, there is sufficient evidence for a reasonable jury to find
Petroske guilty of production of child pornography. Petroske’s own statements on
the videos indicate that the videos were intended to elicit a sexual response in the
viewer. They also constitute audio “captions” to the videos that tend to portray the
minors as sexual objects. The videos’ focus and their nature, combined with


                                         -8-
Petroske’s statements and testimony, constitute sufficient evidence for a reasonable
jury to find beyond a reasonable doubt that the videos were lascivious in nature. We
affirm the district court’s denial of Petroske’s motion for acquittal.

             D.     Denial of Motion for New Trial

       We review “the denial of a motion for new trial for an abuse of discretion.”
United States v. Morris, 817 F.3d 1116, 1121 (8th Cir. 2016) (citing Lopez v. United
States, 790 F. 3d 867, 871 (8th Cir. 2015)). “Motions for new trials are generally
disfavored and will be granted only where a serious miscarriage of justice may have
occurred.” Id. (citing United States v. Fetters, 698 F.3d 653, 656 (8th Cir. 2012)).
If the basis of the motion for a new trial relates to evidence that the defendant failed
to object to at trial, we review for plain error. See United States v. Hunter, 862 F.3d
725, 728 (8th Cir. 2017) (discussing Fed. R. Crim. P. 52(b)).

       On appeal, Petroske argues that a new trial is warranted because of the
prosecutor’s questions that he claims focused on his character as a “peeping tom”
rather than on the elements of the charges. A defendant waives “his objection to the
introduction of the evidence by presenting it himself during direct examination.”
United States v. Huerta-Orosco, 340 F.3d 601, 604 (8th Cir. 2003). After reviewing
the trial transcript, it is evident that the character evidence at issue was volunteered
by Petroske on direct examination. In doing so, Petroske waived any challenge to
introduction of the evidence. Even if admitting the evidence had been in error, the
remaining admissible evidence conclusively established Petroske’s guilt such that
a reasonable jury would have convicted him with or without it. The district court’s
limiting instructions to the jury were sufficient to ensure that no serious miscarriage
of justice occurred.

      III.   Conclusion

      We affirm the judgment of the district court.
                      ______________________________

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