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UNITED STATES OF AMERICA v. TIMOTHY MICHAEL WELLS

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America Michael states United WELLS

United States Court of Appeals, Tenth Circuit.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY MICHAEL WELLS, Defendant - Appellant.

No. 16-8012     Decided: December 16, 2016 Before BRISCOE, EBEL and MURPHY, Circuit Judges.Submitted on the briefs: Wendy Curtis Palen, of Palen Law Offices, LLP, Glendo, Wyoming, for Defendant-Appellant. Christopher A. Crofts, United States Attorney, Thomas Szott, Assistant United States Attorney, Office of the United States Attorney, Cheyenne, Wyoming, for Plaintiff-Appellee.

Defendant Timothy Michael Wells appeals from his conviction following a jury trial of sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a) and (e), for which he received the mandatory minimum sentence of 180 months' imprisonment. The only issue raised by Wells is whether the jury had sufficient evidence to convict him of sexual exploitation of a child. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

“We review a sufficiency of the evidence challenge de novo, viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the government.” United States v. Rodebaugh, 798 F.3d 1281, 1296 (10th Cir. 2015) (quoting United States v. Hale, 762 F.3d 1214, 1222 (10th Cir. 2014)). “We will reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Hale, 762 F.3d at 1222–23). “In other words, we ask whether ‘a reasonable jury could find the defendant guilty.’ ” Id. (quoting United States v. King, 632 F.3d 646, 650 (10th Cir. 2011)). “In conducting this review we may neither weigh conflicting evidence nor consider the credibility of witnesses. It is for the jury, as the fact finder, to resolve conflicting testimony, weigh the evidence, and draw inferences from the facts presented.” Id. (quoting United States v. McKissick, 204 F.3d 1282, 1289–90 (10th Cir. 2000)). “That is, ‘we owe considerable deference to the jury's verdict.’ ” United States v. Dewberry, 790 F.3d 1022, 1028 (10th Cir. 2015) (quoting United States v. Mullins, 613 F.3d 1273, 1280 (10th Cir. 2010)).

II

In a superseding indictment, a federal grand jury charged Wells with violating 18 U.S.C. § 2251(a) by intentionally producing videos of his then-minor stepdaughter, A.M., which visually depicted her engaged in “sexually explicit conduct” in her bathroom. Specifically, the government charged that at least one of those videos depicts a “lascivious exhibition” of A.M.'s “genitals or pubic area,” a category of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(A)(v). The sole issue in this appeal is whether a rational jury could have found beyond a reasonable doubt that any of the videos depicts such a lascivious exhibition of A.M.'s genitals or pubic area.

The term “lascivious exhibition” is not defined by statute. See United States v. Wolf, 890 F.2d 241, 243 (10th Cir. 1989). We have adopted a set of six “factors” that, “ ‘among any others that may be relevant in the particular case,’ ” are used “in determining whether a visual depiction of a minor constitutes a ‘lascivious exhibition of the genitals or pubic area’ ” under § 2256(2)(A)(v). Id. at 244 (quoting United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)); id. at 245 (adopting the “Dost factors”). Those factors are:

(1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and]

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Id. at 244 (footnote omitted) (quoting Dost, 636 F. Supp. at 832); see also United States v. Soderstrand, 412 F.3d 1146, 1155 (10th Cir. 2005) (acknowledging the Dost factors).

Wells and the government agree in principle that the Dost factors guide our inquiry. They also agree that the third and fifth factors are not implicated because none of the videos depict A.M. in an unnatural pose or in inappropriate attire, as she is nude in her bathroom, and her actions there suggest neither sexual coyness nor a willingness to engage in sexual activity. We therefore need not discuss the third or fifth factor.

As Wells concedes, moreover, the absence of those factors is not dispositive. We held in Wolf that “all six factors need not be present in order to bring the depiction under the proscription of the statute,” 890 F.2d at 245, and we did “not hold that more than one Dost factor must be present to constitute a violation of 18 U.S.C. § 2251(a).” Id. at 245 n.6. Whether an image depicts a lascivious exhibition of the genitals or pubic area instead turns on the “overall content of the visual depiction.” Dost, 636 F. Supp. at 832.

III

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