United States v. Bartunek, No. 19-1584 (8th Cir. 2020)
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The Eighth Circuit affirmed defendant's conviction for distribution of child pornography and possession of a visual depiction involving a minor engaged in sexually explicit conduct. The court held that photographs of four life-sized dolls found in defendant's bedroom were properly admitted under Federal Rule of Evidence 404(b) where the dolls were relevant to overcome the defense by showing defendant's motive for acquiring and distributing child pornography.
The court also held that admission of testimony from a witness about viewing child pornography with defendant was admissible under Rule 414, because twenty-year-old evidence of child molestation can be probative and admissible where, as here, it is similar to the charged offense. In light of the extensive evidence of child pornography seized from defendant's residence, other evidence about his sexual interest in minors and history of viewing child pornography, and the minimal likely impact of the traffic cone with the word "chimo" on it (short for child molester) when viewed in context of the entire trial, the court held that there was no abuse of discretion in denying a mistrial.
Court Description: [Colloton, Author, with Wollman and Benton, Circuit Judges] Criminal case - Criminal law. In a prosecution for possession and distribution of child pornography, the district court did not err in permitting the government to introduce photos of child-size sex dolls found in defendant's bedroom as the evidence was admissible under Rule 404(b) because it was relevant to rebut defendant's defense that someone else had used his internet service to download the pornography and to establish motive; no error in permitting the government to call a witness who, as a minor, had viewed child pornography with defendant as the testimony was admissible under Rule 414 to show defendant's sexual interest in underage children; testimony from an investigator that he received a tip in 2013 that defendant possessed child pornography, that he went to defendant's home and while there saw a traffic cone in the driveway labeled "CHIMO" was not so prejudicial as to require a mistrial, as the court gave a limiting instruction that the line of testimony was not evidence of a crime, and the reference to CHIMO (child molester) was isolated and without explanation of its meaning or other comment; in any event, the evidence of defendant's guilt was extensive.
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