United States v. Terry Ward
2012 U.S. App. LEXIS 15092
| 8th Cir. | 2012Background
- Ward was filmed secretly in his RV while W.D., then 12, undressed, showered, and oriented for repeated viewing of her nude front; the video was found with Ward’s large child-pornography collection
- Ward had previously been convicted in state court of raping W.D.’s sister; federal charges were 18 U.S.C. §§ 2251(a), 2252(a)(4)(B) and a jury convicted on both counts
- The defense challenged sufficiency of the evidence for sexual exploitation of a minor; the district court instructed the jury using Dost factors to define lascivious exhibition
- The video shows Ward directing and positioning W.D. so the camera repeatedly captured her pubic area; W.D. testified she did not know she was filmed
- Ward appealed arguing the video depicted mere nudity and thus failed the lasciviousness element; the court reversed and remanded once for Sixth Amendment error, then affirmed on remand
- Ward was sentenced to 360 and 120 months, consecutive to an undischarged life sentence; argues the sentence was unreasonable and improperly consecutive
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for lascivious exhibition | Ward: video shows mere nudity, not lasciviousness | Ward: elements not satisfied by the film | Sustained: reasonable jury could find lascivious exhibition |
| Constitutional standard for reviewing sufficiency of evidence | Government evidence viewed in its light most favorable | District court’s decision consistently applied applicable standard | De novo review with deference; standard satisfied |
| Consecutiveness of sentence to undischarged state term | Ward: court abused discretion; excessive/consecutive | Court properly exercised § 5G1.3 discretion for reasonable punishment | Affirmed: district court had wide latitude to determine concurrency/consecutiveness |
Key Cases Cited
- United States v. Rayl, 270 F.3d 709 (8th Cir. 2001) (lascivious standard for visual depictions)
- United States v. Wiegand, 812 F.2d 1239 (9th Cir.) (standard for lascivious exhibition of a child’s genitals)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (factors for determining lascivious exhibition)
- United States v. Horn, 187 F.3d 781 (8th Cir. 1999) (definition of lascivious exhibition in § 2256(2)(A)(v))
- United States v. Johnson, 639 F.3d 433 (8th Cir. 2011) (affirmed use of Dost framework; substantial evidence standard)
- United States v. Steen, 634 F.3d 822 (5th Cir. 2011) (comparing photographic setup to deliberate filming for sexual exploitation)
- United States v. Rivera, 546 F.3d 245 (2d Cir. 2008) (supporting use of extrinsic evidence to show intent to elicit sexual response)
- United States v. Larkin, 629 F.3d 177 (3d Cir. 2010) (illustrates reasonable juror inference on intended audience)
- United States v. Larkin, 629 F.3d 177 (3d Cir. 2010) (supporting evidentiary weight of related conduct)
- United States v. Frabizio, 459 F.3d 80 (1st Cir. 2006) (definition of lasciviousness in context of child imagery)
- United States v. Ward, No. (Not cited as a reporter in this list) (—) (contextual background for the present case)