USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4444
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH OWENS, a/k/a Kenny Owens,
Defendant – Appellant.
Appeal from the United States District Court for the South District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (1:21-cr-00236-1)
Submitted: April 28, 2023 Decided: August 17, 2023
Before GREGORY, NIEMEYER, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Wesley P. Page, Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. William S. Thompson, United States Attorney, Lesley S. Shamblin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 2 of 7
PER CURIAM:
Kenneth Owens had a fifteen-year-old niece. Because her mother was struggling
with cancer, his niece started visiting her grandmother more often. [J.A. 68.] This also
meant she saw more of Owens. [J.A. 68.] Their relationship was largely transactional.
She would ask him for things like vapes, cigarettes, and alcohol. [J.A. 69.] He would give
them to her. [J.A. 69.] But rather than asking her for money to pay for those items, he
would ask her for pictures. [J.A. 77–79.]
These were not innocent photos. Owens wanted “good pic[s]” and made it clear to
his niece on Facebook messenger what that meant. See J.A. 282. Owens asked for pictures
of her in a “bikini,” J.A. 281, in “wild outfits,” J.A. 284, and in her “bra,” J.A. 293. He
wanted “really hot,” J.A. 307, and “sexy,” J.A. 299, pics showing her cleavage and “see
threw” “pantie[s],” J.A. 295. If he did not get what he wanted, he told her. For example,
when he received a picture of a nude buttocks, he responded by requesting the “front t[oo].”
J.A. 317. Or when he received a picture of her in a bra and pants, he asked her to “[p]ull
something up or down a little more.” J.A. 310. He also gave her underwear to take photos
in. [J.A. 113.]
Responding to his entreaties, his niece sent him many pictures. They included
pictures of women in various stages of undress, such as a completely naked picture of a
vaginal area. [J.A. 15, 318.] Some photos were of her. Some were from her friends. And
some were downloaded from adult websites. [See J.A. 128.] But Owens made it clear he
wanted photos of her, not other women. He responded suspiciously whenever he thought
the photos might not be of her. J.A. 316 (“Need see lot more pics see if it’s you.”); J.A.
2 USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 3 of 7
318 (responding to the picture of a vagina with “Wow just don’t know if it’s you try
something I no it’s you and the boobs.”). Yet mostly he approved of the photos she sent.
See, e.g., J.A. 316–17 (responding to a picture of a nude buttocks and cleavage with “Yum
yum just a little more”).
Owens admits he was attracted to his niece and enjoyed the pictures. 1 To show his
appreciation for her photos, Owens delivered on his end of the bargain. He often supplied
her with the items she requested. But his thanks was only for sexualized photos. Owens
made it clear that he “need[ed] some really hot pics” to make his deliveries worth it. See,
e.g., J.A. 307, 308 (“Can’t drive over there for nothing . . . But you can take 5 minutes and
go to the bathroom for some very good pics and ill make a trip.”).
Based largely on the Facebook conversations between him and his niece, Owens
was convicted of attempted enticement of a minor to engage in criminal sexual activity.
See 18 U.S.C. § 2422(b). To convict Owens, the jury had to find, beyond a reasonable
doubt, that he intended for his niece to send him child pornography. 2 On appeal, he argues
that there was insufficient evidence for them to do so. He also argues that the district court
erred by letting the jury see evidence that he supplied his niece with alcohol, gave her
underwear to take photos in, and groped her. We reject both challenges and affirm his
conviction.
While that attraction was mostly confined to picture requests, he did grope her 1
once while giving her a hug. [J.A. 112–13.] 2 Producing child pornography is the “criminal sexual activity” he was charged with trying to get his niece to engage in. See 18 U.S.C. § 2427.
3 USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 4 of 7
We uphold a jury’s verdict if, viewing the evidence in the government’s favor,
substantial evidence supports it. United States v. Kiza, 855 F.3d 596, 601 (4th Cir. 2017).
That means we will not overturn Owens’s verdict for insufficient evidence unless no
reasonable fact finder could conclude he was guilty beyond a reasonable doubt. See id.
To convict Owens of attempt under § 2422(b), the jury had to find that he intended
his niece to produce child pornography. See United States v. Engle, 676 F.3d 405, 420 (4th
Cir. 2012). Owens argues that no reasonable juror could find this. Child pornography is
relevantly defined as the “lascivious exhibition of the . . . genitals” of a minor. 3 18 U.S.C.
§ 2256(2)(A)(v). This includes any “depiction which displays or brings forth to view in
order to attract notice to the genitals or pubic area of children, in order to excite lustfulness
or sexual stimulation in the viewer.” United States v. Courtade, 929 F.3d 186, 192 (4th
Cir. 2019) (cleaned up). Owens says that no reasonable juror could conclude, based on the
record, that he intended his niece to send him such photos.
He is wrong. His niece sent him pictures of genitals because he asked for them.
And he wanted those pictures to be sexually stimulating. He asked his niece for “hot” and
“sexy” photos. He implored her to take pictures of her cleavage, in bathing suits, and in
her underwear. He then went beyond even this, directing her to pull down her pants or pull
up her bra. And he told her to photograph her “front t[oo]” after receiving one of a naked
rear. J.A. 317. When he received such pornographic photos, he responded encouragingly,
3 Child pornography includes “any visual depiction” involving a minor “of sexually explicit conduct.” 18 U.S.C. § 2256(8). And sexually explicit conduct includes “lascivious exhibition of the . . . genitals.” Id. § 2256(2)(A)(v).
4 USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 5 of 7
rewarding them with contraband deliveries and asking for more. This is more than enough
for a reasonable juror to conclude that Owens intended for his niece to send him sexually
stimulating photos of her genitals.
Owen’s next challenges the district court’s decisions to admit three pieces of
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USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4444
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH OWENS, a/k/a Kenny Owens,
Defendant – Appellant.
Appeal from the United States District Court for the South District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (1:21-cr-00236-1)
Submitted: April 28, 2023 Decided: August 17, 2023
Before GREGORY, NIEMEYER, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Wesley P. Page, Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. William S. Thompson, United States Attorney, Lesley S. Shamblin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 2 of 7
PER CURIAM:
Kenneth Owens had a fifteen-year-old niece. Because her mother was struggling
with cancer, his niece started visiting her grandmother more often. [J.A. 68.] This also
meant she saw more of Owens. [J.A. 68.] Their relationship was largely transactional.
She would ask him for things like vapes, cigarettes, and alcohol. [J.A. 69.] He would give
them to her. [J.A. 69.] But rather than asking her for money to pay for those items, he
would ask her for pictures. [J.A. 77–79.]
These were not innocent photos. Owens wanted “good pic[s]” and made it clear to
his niece on Facebook messenger what that meant. See J.A. 282. Owens asked for pictures
of her in a “bikini,” J.A. 281, in “wild outfits,” J.A. 284, and in her “bra,” J.A. 293. He
wanted “really hot,” J.A. 307, and “sexy,” J.A. 299, pics showing her cleavage and “see
threw” “pantie[s],” J.A. 295. If he did not get what he wanted, he told her. For example,
when he received a picture of a nude buttocks, he responded by requesting the “front t[oo].”
J.A. 317. Or when he received a picture of her in a bra and pants, he asked her to “[p]ull
something up or down a little more.” J.A. 310. He also gave her underwear to take photos
in. [J.A. 113.]
Responding to his entreaties, his niece sent him many pictures. They included
pictures of women in various stages of undress, such as a completely naked picture of a
vaginal area. [J.A. 15, 318.] Some photos were of her. Some were from her friends. And
some were downloaded from adult websites. [See J.A. 128.] But Owens made it clear he
wanted photos of her, not other women. He responded suspiciously whenever he thought
the photos might not be of her. J.A. 316 (“Need see lot more pics see if it’s you.”); J.A.
2 USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 3 of 7
318 (responding to the picture of a vagina with “Wow just don’t know if it’s you try
something I no it’s you and the boobs.”). Yet mostly he approved of the photos she sent.
See, e.g., J.A. 316–17 (responding to a picture of a nude buttocks and cleavage with “Yum
yum just a little more”).
Owens admits he was attracted to his niece and enjoyed the pictures. 1 To show his
appreciation for her photos, Owens delivered on his end of the bargain. He often supplied
her with the items she requested. But his thanks was only for sexualized photos. Owens
made it clear that he “need[ed] some really hot pics” to make his deliveries worth it. See,
e.g., J.A. 307, 308 (“Can’t drive over there for nothing . . . But you can take 5 minutes and
go to the bathroom for some very good pics and ill make a trip.”).
Based largely on the Facebook conversations between him and his niece, Owens
was convicted of attempted enticement of a minor to engage in criminal sexual activity.
See 18 U.S.C. § 2422(b). To convict Owens, the jury had to find, beyond a reasonable
doubt, that he intended for his niece to send him child pornography. 2 On appeal, he argues
that there was insufficient evidence for them to do so. He also argues that the district court
erred by letting the jury see evidence that he supplied his niece with alcohol, gave her
underwear to take photos in, and groped her. We reject both challenges and affirm his
conviction.
While that attraction was mostly confined to picture requests, he did grope her 1
once while giving her a hug. [J.A. 112–13.] 2 Producing child pornography is the “criminal sexual activity” he was charged with trying to get his niece to engage in. See 18 U.S.C. § 2427.
3 USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 4 of 7
We uphold a jury’s verdict if, viewing the evidence in the government’s favor,
substantial evidence supports it. United States v. Kiza, 855 F.3d 596, 601 (4th Cir. 2017).
That means we will not overturn Owens’s verdict for insufficient evidence unless no
reasonable fact finder could conclude he was guilty beyond a reasonable doubt. See id.
To convict Owens of attempt under § 2422(b), the jury had to find that he intended
his niece to produce child pornography. See United States v. Engle, 676 F.3d 405, 420 (4th
Cir. 2012). Owens argues that no reasonable juror could find this. Child pornography is
relevantly defined as the “lascivious exhibition of the . . . genitals” of a minor. 3 18 U.S.C.
§ 2256(2)(A)(v). This includes any “depiction which displays or brings forth to view in
order to attract notice to the genitals or pubic area of children, in order to excite lustfulness
or sexual stimulation in the viewer.” United States v. Courtade, 929 F.3d 186, 192 (4th
Cir. 2019) (cleaned up). Owens says that no reasonable juror could conclude, based on the
record, that he intended his niece to send him such photos.
He is wrong. His niece sent him pictures of genitals because he asked for them.
And he wanted those pictures to be sexually stimulating. He asked his niece for “hot” and
“sexy” photos. He implored her to take pictures of her cleavage, in bathing suits, and in
her underwear. He then went beyond even this, directing her to pull down her pants or pull
up her bra. And he told her to photograph her “front t[oo]” after receiving one of a naked
rear. J.A. 317. When he received such pornographic photos, he responded encouragingly,
3 Child pornography includes “any visual depiction” involving a minor “of sexually explicit conduct.” 18 U.S.C. § 2256(8). And sexually explicit conduct includes “lascivious exhibition of the . . . genitals.” Id. § 2256(2)(A)(v).
4 USCA4 Appeal: 22-4444 Doc: 33 Filed: 08/17/2023 Pg: 5 of 7
rewarding them with contraband deliveries and asking for more. This is more than enough
for a reasonable juror to conclude that Owens intended for his niece to send him sexually
stimulating photos of her genitals.
Owen’s next challenges the district court’s decisions to admit three pieces of
evidence: that he supplied his niece with alcohol, that he gave her underwear to take photos
in, and that he groped her. He challenges each decision on the same grounds: that they are
impermissible character evidence barred by Federal Rule of Evidence 404(b)(1) or that, in
the alternative, they are barred by Rule 403 because they are overly unfairly prejudicial.
We will reverse the district court’s evidentiary ruling only if it was an abuse of discretion,
by which we mean it was arbitrary or irrational to admit the challenged evidence. United
States v. Basham, 561 F.3d 302, 325–26 (4th Cir. 2009).
Evidence is inadmissible if it is of “any other crime, wrong, or act” and offered to
“prove a person’s character in order to show that on a particular occasion the person acted
in accordance with the character.” Fed R. Evid. 404(b)(1). By its text, this rule bars
evidence of only other crimes, wrongs, or acts. It cannot be used to block evidence of “acts
intrinsic to the alleged crime.” United States v. Bush, 944 F.3d 189, 195 (4th Cir. 2019)
(quoting United States v. Chin, 83 F.3d 83, 87–88 (4th Cir. 1996)). And an act is intrinsic
to the alleged crime if it “‘complete[s] the story’ of a charged offense” by being “probative
of an integral component of the crime on trial or provid[ing] information without which
the factfinder would have an incomplete or inaccurate view of other evidence or of the
story of the crime itself.” United States v. Brizuela, 962 F.3d 784, 795 (4th Cir. 2020).
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All of the challenged evidence was of acts intrinsic to the charged crime and so was
not barred by Rule 404(b)(1). See Bush, 944 F.3d at 195. A key part of Owens’s crime
was plying her with alcohol in order to get her to send him sexualized photos. Likewise,
Owens’s provision of underwear for photos and groping of his niece confirmed the intent
behind his photo requests. These acts establish that he wanted to use her for sexual
gratification and took steps toward that end. This is a story about an uncle who manipulated
his niece, leveraging her desire to get contraband to satiate his lust for her. Without this
evidence, the jury’s view of the message would be incomplete. So it is not barred by Rule
404(b)(1). See Brizuela, 962 F.3d at 795.
The challenged evidence is also not barred by Rule 403. Evidence is inadmissible
under Rule 403 when its probative value is substantially outweighed by its unfair
prejudicial effect. Fed. R. Evid. 403. This evidence certainly prejudiced, i.e., damaged,
Owens’s case. But it did so mainly by proving the charges against him: that he was seeking
to sexually exploit his niece by trading contraband for pornographic photos. This is
ordinary prejudice, not the unfair prejudice Rule 403 is concerned with. See Basham, 561
F.3d at 327 (“[Unfair prejudice does not include] the damage to a defendant’s case that
results from the legitimate probative force of the evidence.” (cleaned up)). The evidence
was highly probative of the charged crime and its risk of unfairly prejudicing Owens was
minimal in comparison. See United States v. Byers, 649 F.3d 197, 210 (4th Cir. 2011);
United States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995). So the district court did not abuse
its discretion by admitting it.
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Since we reject all of Owens’s challenges to his conviction, the jury’s finding is
AFFIMRED.