Eighth Circuit finds Evidence at CP trial Insufficient: McCoy

Facts:  Hidden Camera, Debate About Explicit Conduct

McCoy’s ex wife testified at trial that while collecting McCoy’s belongings in his closet, she found a flash drive.  McCoy’s brother also found a hidden camera while fixing a guest bathroom event. Inside the camera was a flash drive that had two videos of a minor.  Based on the videos Mrs. McCoy determined that there was a hidden camera in a closet connected to the master bedroom.

The forensic examiner noted that there were two videos of a nude underage woman in the bathroom. The minor testified that the guest bathroom tub was full of toys and other items, and she was instructed to use the master bedroom. She did not know that there was a video camera aimed at the master bedroom.

After the government rested, McCoy moved for a judgment of acquittal, arguing that the videos did not show “sexually explicit conduct” as required for a violation of 18 U.S.C.  2251(a).  The court denied the motion and McCoy was found guilty on both counts.

Appeal Holding:  The Evidence was not Explicit

On appeal the Eighth Circuit noted the standard for when the statute is violated:

The statute makes clear that any display of the genitals must be “lascivious:”

“Consequently, we have repeatedly explained “mere nudity” is not enough to convict...We have also explained that a visual depiction “is ‘lascivious’ only if it is sexual in nature.”

The court noted that the test to determine this is in United States vs. Dost, 636 F.Supp. 828 (S.D. Cal. 1986):

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;

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

The Eighth Circuit noted that the videos depected the youth from a distance as the hidden camera was inside the connecting closet. Similarly, the videos display innocent daily tasks in a bathroom such as getting in and out of the shower, drying off and using the toilet. The videos did not suggest a sexual coyness or a willingness to engage in sexual activity.

The court also noted that the videos were not, on their face, of a sexual character:

Finally, the videos were not intended or designed to elicit a sexual response in the viewer. The government disagrees, arguing “M.B.’s innocent acts of undressing and taking a shower on the videos are lascivious because of McCoy’s intent for them to be sexual.” In support, the government points to other images and videos presented at trial rather than the content of the two videos of M.B. Even if McCoy intended for the two videos of M.B. to be sexual in nature, the statute does not ask whether the videos were intended to appeal to the defendant’s particular sexual interest. Instead, the inquiry is whether the videos, on their face, are of a sexual character.

The Eighth Circuit reversed the judgment of the district court.  No. 21-3895