United States v. Kevin James Petroske
928 F.3d 767
| 8th Cir. | 2019Background
- Police found Petroske hiding in a shed after a report of someone peering into a residence; a search of his home seized a laptop containing voyeuristic videos of minors and a Word document describing how he made the videos for "sexual gratification."
- Videos were surreptitious recordings of four minors in their homes, sometimes nude or partially nude, and several recordings contained audible statements by Petroske making suggestive remarks.
- Petroske had prior related convictions (felony stalking and a privacy-interference misdemeanor) and testified at trial that he had a compulsion for voyeurism and intended to capture victims’ genitals.
- Indictment: eight counts of production or attempted production of child pornography (18 U.S.C. § 2251) and one count of possession of child pornography (18 U.S.C. § 2252).
- Pretrial motions: Petroske sought to exclude audio portions (Rule 403) and asked for a ruling that videos were not lascivious as a matter of law; the court admitted audio and held that some videos presented jury questions on lasciviousness vs. attempt.
- Jury convicted on five counts of attempted production, three counts of production or attempted production, and one count of possession; district court denied acquittal and new-trial motions and imposed concurrent 240-month sentences.
Issues
| Issue | Petroske's Argument | Government's Argument | Held |
|---|---|---|---|
| Admission of audio under Rule 403 | Audio was unfairly prejudicial and should be excluded | Audio was highly probative of intent to produce lascivious material and relevant to attempt | Court affirmed admission; probative of intent and not unfairly prejudicial |
| Jury instruction defining "lascivious exhibition" | Instruction improperly allowed lasciviousness without requiring sexual or suggestive conduct by the child; was inconsistent about considering producer’s intent vs. defendant’s sexual interest | Instruction follows precedent: focus is on whether image appears sexual on its face and whether producer intended it to be sexual; defendant’s private interests are irrelevant | Instruction upheld as accurate statement of law and not inconsistent |
| Sufficiency of evidence (judgment of acquittal) | Videos not lascivious; insufficient evidence for production/attempt convictions | Videos, Dost-factor analysis, and Petroske’s admissions/audio show intent and sexual character; substantial step shown | Denial of acquittal affirmed; a reasonable jury could find beyond a reasonable doubt that videos were lascivious and attempts were committed |
| Motion for new trial (inflamed jury passions) | Prosecutor emphasized character as a "peeping tom," inflaming jurors and requiring new trial | Character evidence was largely volunteered by Petroske on direct exam; limiting instructions minimized harm; any error harmless given strong evidence | Denial of new trial affirmed; Petroske waived some objection by testifying and no miscarriage of justice shown |
Key Cases Cited
- United States v. Kemmerling, 285 F.3d 644 (8th Cir.) (explains lasciviousness requires more than nudity and focuses on whether image appears sexual on its face)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal.) (articulates six-factor Dost test for lasciviousness)
- United States v. Horn, 187 F.3d 781 (8th Cir.) (lasciviousness is a function of the producer/editor, not the child)
- United States v. Ward, 686 F.3d 879 (8th Cir.) (producer’s intent is central to lasciviousness analysis)
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct.) (standard for sufficiency of the evidence review)
- United States v. Sims, 708 F.3d 832 (6th Cir.) (discusses required specific intent for attempted production under § 2251)
- United States v. Jirak, 728 F.3d 806 (8th Cir.) (standard of review for evidentiary rulings)
- United States v. Donnell, 596 F.3d 913 (8th Cir.) (harmless-error standard for evidentiary rulings)