                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       January 24, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
v.                                                         No. 13-7033
                                                (D.C. No. 6:12-CR-00056-RAW-1)
REBEKAH KOOL,                                              (E.D. Okla.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, McKAY, and BACHARACH, Circuit Judges.



      Defendant Rebekah Kool appeals her conviction for misprision of felony under

18 U.S.C. § 4. She was convicted by a jury of failing to notify authorities of, and

helping to conceal, her husband’s violation of 18 U.S.C. § 2251(a), sexual

exploitation of a minor. She argues that the district court erred in admitting evidence

of (1) her husband’s nonverbal reaction to a law-enforcement officer’s statement, and



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(2) testimony about photographs that did not depict sexually explicit conduct.1

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      Defendant’s son and daughter found nude or sexually explicit photographs of

Defendant’s underage daughter and nieces on a home computer, taken while they

were sleeping. One image included a hand moving the three-year old niece’s diaper

away to expose her vagina. The children recognized the hand as that of Defendant’s

husband, Mark Kool (their stepfather), because it had the letters “k-o-o-l” tattooed

across the knuckles. The children showed these pictures to Defendant. She tried to

prevent her son from calling the police to report the pornography, helped Mr. Kool

delete the images from the computer, and helped smash and destroy the hard drives.

Defendant did not report the crime to police and encouraged her children to lie about

the photos. Law-enforcement officers were unable to recover any photos from the

smashed computer and hard drives, but Defendant’s son and daughter testified at trial

about the images they had seen. Defendant was convicted of failing to report to

authorities, and helping to conceal, that Mr. Kool had produced sexually explicit

photographs of her minor daughter and nieces. She was sentenced to 30 months’

imprisonment.


1
       Defendant’s statement of issues “further asserts that there was insufficient
evidence to support the conviction of the Defendant.” Aplt. Opening Br. at 2. But
there is no further mention of this argument in Defendant’s brief. Accordingly, we
have not addressed this assertion. See United States v. Berry, 717 F.3d 823, 834 n.7
(10th Cir. 2013) (“Arguments raised in a perfunctory manner . . . are waived.”
(internal quotation marks omitted)).


                                         -2-
      We review the “district court’s rulings on evidentiary matters and motions in

limine for abuse of discretion.” Seeley v. Chase, 443 F.3d 1290, 1293 (10th Cir.

2006). “We will not reverse a district court’s ruling if it falls within the bounds of

permissible choice in the circumstances and is not arbitrary, capricious or

whimsical.” United States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006) (brackets

and internal quotations marks omitted).

                      I. ADMISSION OF NONVERBAL CONDUCT

      Lt. Timothy Keith testified that after he told Mr. Kool that one of the

photographs had a hand with tattoos on it, Mr. Kool moved his hands from the

interview table to under his armpits. Defendant argues that Mr. Kool’s conduct of

moving his hands constituted a hearsay testimonial statement, and—because

Mr. Kool did not testify—its admission violated the Confrontation Clause. The

district court ruled that Mr. Kool’s act of placing his hands under his armpits was not

an “assertion,” and therefore not hearsay subject to the Confrontation Clause.

      The Confrontation Clause prohibits the admission of hearsay statements that

are testimonial unless the witness is unavailable to testify and the defendant had a

prior opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36,

68 (2004). To determine if the right to confrontation has been violated, this court

first asks “whether the challenged evidence is hearsay.” United States v. Mendez,

514 F.3d 1035, 1043 (10th Cir. 2008). Although the Supreme Court has not ruled on

when nonverbal conduct constitutes hearsay under Crawford, we can assume that it


                                          -3-
will adopt the same view as the Federal Rules of Evidence. Under those rules,

nonverbal conduct cannot be hearsay unless it constitutes a statement, and it is a

statement only if the declarant “intended it as an assertion.” Fed. R. Evid. 801(a).

“Rule 801 places the burden upon the party claiming that the intention to make an

assertion existed.” United States v. Jackson, 88 F.3d 845, 848 (10th Cir. 1996)

(brackets and internal quotation marks omitted). Defendant did not meet that burden

here. The district court ruled, “It is obvious that Mark Kool did not intend to assert

anything by his action.” R. Vol. 1, at 104.

      On appeal Defendant argues that it was “improper for the trial court to make a

judicial determination with regard to what Mark Kool’s intent was.” Aplt. Opening

Br. at 9-10. We disagree. Federal Rule of Evidence 104(a) states that “[t]he court

must decide any preliminary question about whether . . . evidence is admissible.”

“[O]ne of the most routine determinations made by district courts . . . [is] whether an

out-of-court statement constitutes inadmissible ‘hearsay’ within the meaning of

[Rule] 801.” United States v. Gonzales-Flores, 701 F.3d 112, 117 (4th Cir. 2012).

The determination of whether an assertion is intended “involves no greater difficulty

than many other preliminary questions of fact.” Rule 801(a) advisory committee’s

note. We perceive no error in the district court’s determination here. It is obvious

that Mr. Kool was not trying to convey that his were the hands in the picture.

      We also reject Defendant’s contention that the evidence was not relevant.

Although Mr. Kool did not mean to admit that his hands were in the picture, a


                                          -4-
reasonable juror could find that Mr. Kool’s action involuntarily conveyed that

message. Because the prosecution needed to prove Mr. Kool’s criminal conduct to

convict Defendant of misprision, his inadvertent admission was relevant and

therefore admissible.

                        II. ADMISSION OF OTHER TESTIMONY

      Defendant complains about testimony by her son and daughter that they saw

pictures of her daughter topless and in her bra taken from outside her bedroom

window while she was sleeping. Defendant argues that the district court abused its

discretion in allowing this testimony because the described pictures do not depict

“sexually explicit” conduct under 18 U.S.C. § 2256(2)(A)(v) (defining such conduct,

in relevant part, as “lascivious exhibition of the genitals or pubic area of any

person”). She further argues that the pictures of her daughter had an unfair

prejudicial effect because they “suggest[ed] an element of betrayal of a duty of trust

and protection.” Aplt. Opening Br. at 15.

      The district court ruled the challenged testimony admissible because it was

relevant to “prove motive, opportunity, intent, preparation, identity, absence of

mistake or lack of accident,” R. Vol. 1, at 105, and the relevance was not outweighed

by any prejudicial effect. The court did not err in its ruling. Even if we assume that

the testimony should be treated as evidence of other bad acts under Fed. R. Evid.

404(b), the evidence was relevant to explain the behavior of the children after

viewing the images on the computer and to establish the lascivious intent with which


                                          -5-
the pictures of the nieces were taken, the identity of the person taking the pictures,

and the absence of accident in taking the pictures of the nieces. And we see no unfair

prejudice to Defendant.

      Defendant also challenges the admission of testimony by her son that he saw

“more pornography” on the computer. Aplt. Opening Br. at 12. But she never cites

the transcript pages for the allegedly improper testimony, so we cannot determine

what she is objecting to. Although we did find references in her son’s testimony to

child pornography, all the references appear to be to the pictures of his sister and

cousins. Defendant has not adequately presented any claims of error relating to

“more pornography.”

      We affirm Defendant’s conviction.

                                                Entered for the Court


                                                Harris L Hartz
                                                Circuit Judge




                                          -6-
