United States v. Lohse, No. 14-3071 (8th Cir. 2015)
Annotate this CaseLohse lived with his girlfriend and her three-year-old daughter, K.S. Lohse’s girlfriend discovered images on an SD card, depicting K.S., clothed and sleeping in a natural position on a bed, and Lohse, naked and positioned so that his penis was on or near K.S.’s face. She contacted law enforcement. A search was executed at the house that day. Officers seized several devices that were found to contain child pornography. Lohse was charged, based on the images found on the SD card, under 18 U.S.C. 2251(a) and (e) alleging that he “used and attempted to use a minor under the age of 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct.” Lohse argued that the images did not depict “sexually explicit conduct,”, because the display of genitals was not lascivious. The district court denied the motion. He was ultimately charged with receipt of child pornography and four counts of possession of child pornography. Each possession count related to a different device. For the receipt offense, the government identified four videos that had been downloaded. The Eighth Circuit affirmed his convictions, rejecting challenges to denial of the motion to dismiss and to the verdict form.
Court Description: Wollman, Author, with Gruender, Circuit Judge, and Doty, District Judge] Criminal case - Criminal law. Evidence was sufficient to support defendant's conviction for producing child pornography as he used a minor child to produce images which contained a sexually suggestive setting and the images produced were intended to elicit a sexual response in the viewer and portrayed the child as a sexual object; the evidence and the verdict form did not allow a finding of guilty on the receipt offense charged in Count II based on the same evidence the government used to support possession offenses in three other counts; as a result there was no Double Jeopardy violation and defendant was not entitled to a lesser-included-offense instruction; the possession counts were not multiplicitous.
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