The 8th U.S. Circuit Court of Appeals has reversed the 2021 conviction of Matthew McCoy of Rison on two counts of production of child pornography. McCoy, 31, had been sentenced by Judge Price Marshall to more than 17 years in prison
The appeals court accepted an argument that McCoy’s attorney made unsuccessfully at trial. Though McCoy used a surveillance camera hidden in a bathroom to make videos of women bathing and using the toilet, the evidence was insufficient to support conviction on the charges related to videos of a 15-year-old relative.
Though the videos showed the girl nude, they did not meet the statute’s requirement, the court said.
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 said the facts didn’t point toward a lascivious depiction. The focal point of the videos was not the minor’s genitalia. They were taken from a distance. The court also said the setting wasn’t sexually suggestive. “The videos display innocent daily tasks in a bathroom: getting in and out of the shower, drying off, and using the toilet. While the government emphasizes that M.B. at one point bends over, she is not in an unnatural pose considering the context. Indeed, as the government conceded during oral argument, the videos do not suggest sexual coyness or a willingness to engage in sexual activity. After all, there is no indication M.B. knew she was being filmed.”
At trial, McCoy’s attorney, Christopher Tarver, had argued, according to a Democrat-Gazette account of the trial:
“I’m not going to stand here and tell you that Matthew is an angel. He’s not,” Tarver said. “I’m not going to tell you he didn’t do anything wrong. He did. But what I want to tell you is that he did not commit the crimes that he is charged with.”
The 8th Circuit opinion concluded:
In sum, the statute underlying the indictment prohibits a person from using a minor to engage in sexually explicit conduct. Congress, in turn, defined sexually
explicit conduct as the lascivious exhibition of genitals—not mere nudity. Applying this statute to the evidence presented at trial, we conclude no reasonable jury could
have found McCoy guilty beyond a reasonable doubt.The evidence was insufficient to support the conviction under 18 U.S.C. § 2251(a). We do not endorse McCoy’s behavior but, as with any other case, are constrained by the text of the statute listed in the indictment and our precedent interpreting it. The judgment of the district court is reversed.