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United States v. Davenport

United States Court of Appeals, Eighth Circuit

December 14, 2018

United States of America Plaintiff - Appellee
v.
Randall Scott Davenport Defendant-Appellant

          Submitted: September 28, 2018

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         A jury convicted Randall Scott Davenport of two counts of sexual exploitation of a child and production of child pornography under 18 U.S.C. § 2251(a), and one count of possession of child pornography under 18 U.S.C. § 2252(a)(4)(B), (b)(2). The district court[1] sentenced him to 840 months' imprisonment. Davenport appeals, arguing the district court should have granted his motions for judgment of acquittal and for new trial, due to insufficient evidence. He also contends the district court erred in applying various sentencing enhancements, making his sentence substantively unreasonable. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         Fourteen-year-old MD told police that her father-Randall Davenport-had explicit photographs of her on his cell phone and tablet device. She said Davenport had been touching her inappropriately for three to four years, confirming in an interview the next day that it began when she was 11 or 12 years old. MD described how she would wake up to him masturbating, touching her genitals, and inserting his fingers or a vibrator inside her vagina. According to MD, Davenport had sexual intercourse with her eight or nine times. If she resisted, he held down her wrists and thrusted with greater force.

         On the day MD first spoke to police, they went to Davenport's home to speak with him and Mildred Thompson, MD's mother. He consented to a search of his cell phone, but told police he had no other electronic devices. While interviewing Davenport and Thompson, however, police recovered two other devices-a laptop in plain view and the tablet MD had described to police, which Thompson found-after police questioned her about it-hidden under a sofa.

         Police later interviewed Davenport twice. He initially called MD's allegations "out of left field," but then admitted he "probably" took nude photographs of MD on his cell phone. He told police that while MD was sleeping, he would pull her clothes aside, touch her vagina, and penetrate her with his fingers or a vibrator.

         A month later, Thompson turned over a second laptop computer she found in the basement. It had at least 10 inappropriate photographs taken with a Panasonic camera and saved in the "dad" folder. In the photos, the victim is lying on a bed wearing red-and-black pajama shorts. A blue-and-gray-cat blanket is visible in many of the images. The photos depict male hands pulling away the victim's underwear and touching or penetrating her vagina. Based on the second-laptop images, the government charged Davenport with two counts of sexual exploitation of a child and production of child pornography, and one count of possession of child pornography. The district court denied Davenport's motion for a directed verdict or judgment of acquittal. The jury convicted on all counts. Davenport moved for a new trial based on the weight of the evidence, which was denied.

         II.

         This court reviews de novo the denial of a motion for judgment of acquittal. United States v. Lundstrom, 880 F.3d 423, 436 (8th Cir. 2018). "We consider the evidence, and all reasonable inferences that may be drawn therefrom, in the light most favorable to the jury's verdict." Id. Under this "very strict standard of review," this court reverses only if no reasonable jury could have found Davenport guilty. Id.

         This court reviews the denial of a motion for new trial for abuse of discretion. United States v. Davis, 534 F.3d 903, 912 (8th Cir. 2008). A motion for new trial based on sufficiency of evidence is disfavored. Id. The court may grant a motion for a new trial "where the evidence presented weighs heavily enough against the verdict that the court believes a miscarriage of justice may have occurred." Id.

         Davenport argues the district court erred in denying his motions for acquittal and for new trial because there was insufficient evidence for all three counts. To convict a defendant of sexual exploitation of a child and production of child pornography, the jury must find that "the child named in the indictment was under the age of eighteen during the time period alleged in the indictment, that the defendant acted with the purpose of producing a visual depiction of the conduct, and that the materials used to produce the visual depiction were mailed, shipped, or transported, including by computer, in interstate or foreign commerce." United States v. Wallace, 713 F.3d 422, 428 (8th Cir. 2013). According to Davenport, the ...


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