United States v. Wells
2016 U.S. App. LEXIS 22356
| 10th Cir. | 2016Background
- Defendant Timothy Michael Wells was convicted by a jury of sexual exploitation of a child (18 U.S.C. § 2251(a), (e)) for producing videos of his then-minor stepdaughter, A.M., and received the 180-month mandatory minimum sentence. He does not challenge other convictions from the same trial.
- Government introduced 46 videos found on a USB drive; four video excerpts were played for the jury. Several excerpts show A.M. naked in the bathroom with her genitals or pubic area visible and often centered in the frame.
- Wells admitted placing multiple hidden cameras in A.M.’s bathroom, angling them at the shower/toilet, transferring recordings to a laptop and then to a USB drive, and reviewing the videos privately "once or twice."
- Wells conceded use of a minor and interstate nexus for the recording devices; the only contested legal question on appeal was whether any video depicted a "lascivious exhibition" of the genitals or pubic area under § 2256(2)(A)(v).
- The Tenth Circuit applies the Dost six-factor framework (focal point of genitalia; sexually suggestive setting; unnatural pose/inappropriate attire; nudity; sexual coyness/willingness; designed to elicit sexual response) and reviews sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the videos depict a "lascivious exhibition" of A.M.'s genitals/pubic area under § 2256(2)(A)(v) | Government: Dost factors and overall content support that at least one video is lascivious; location, camera angle, nudity, and Wells’s conduct show intent to elicit sexual response | Wells: recordings were voyeurism, not child pornography; A.M.'s conduct shows nonsexual context; videos did not show arousal or lasciviousness | Affirmed: a rational jury could find a lascivious exhibition beyond a reasonable doubt based on focal point, sexually suggestive bathroom setting, nudity, and evidence of Wells’s intent/sexual interest |
Key Cases Cited
- United States v. Rodebaugh, 798 F.3d 1281 (10th Cir. 2015) (standard for reviewing sufficiency of the evidence)
- United States v. Hale, 762 F.3d 1214 (10th Cir. 2014) (sufficiency review and jury deference)
- United States v. King, 632 F.3d 646 (10th Cir. 2011) (standard on whether reasonable jury could convict)
- United States v. McKissick, 204 F.3d 1282 (10th Cir. 2000) (jury’s role in resolving credibility/conflicting evidence)
- United States v. Dewberry, 790 F.3d 1022 (10th Cir. 2015) (deference to jury verdict)
- United States v. Mullins, 613 F.3d 1273 (10th Cir. 2010) (jury deference)
- United States v. Wolf, 890 F.2d 241 (10th Cir. 1989) (adopting Dost factors; lasciviousness assessed from photographer’s presentation)
- Dost v. United States, 636 F. Supp. 828 (S.D. Cal. 1986) (establishing six-factor test for lascivious exhibition)
- United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (lasciviousness is characteristic of photographer’s presentation, not the child)
- United States v. Soderstrand, 412 F.3d 1146 (10th Cir. 2005) (acknowledging Dost factors)
- United States v. Larkin, 629 F.3d 177 (3d Cir. 2010) (observing that bathrooms/showers can be sexually suggestive settings)