23-3363 United States of America v. Norman Lee Burch

United States Court of Appeals
For the Eighth Circuit
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Nos. 23-3356/23-3363
___________________________
United States of America
Plaintiff - Appellee
v.
Norman Lee Burch
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa
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Submitted: April 9, 2024
Filed: August 19, 2024
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Before SMITH, WOLLMAN, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
A jury convicted Norman Burch of attempting to sexually exploit a minor,
attempting to receive and receiving child pornography, and committing a felony sex
offense involving a minor while required to register as a sex offender. The acts
leading to Burch’s convictions also violated the terms of his supervised release from

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an earlier conviction for possessing child pornography. The district court1 imposed
a combined sentence of 420 months of imprisonment for the convictions and
violations of the terms of his supervised release. In this consolidated appeal, Burch
challenges his new convictions and the revocation of his supervised release. We
affirm.
I. Background
After completing a ten-year prison sentence for possessing child pornography,
Burch began serving a term of supervised release. As part of his supervised release,
Burch could not view or possess pornography. He needed the permission of his
probation officer to possess an internet-capable device or any type of camera or
video recording device, and permission to contact any child under the age of
eighteen. He also had to submit to unannounced examinations or searches of any
such electronic device. Burch was required to participate in a residential reentry
program and register as a sex offender in compliance with the rules of his state of
residence.
While on supervised release, Burch first lived at a residential reentry center in
Des Moines, Iowa. He then lived with a girlfriend, Christene Deason, and one of
her teenage daughters. Several other people also temporarily stayed with them,
including Jesse Gowin, Deason’s soon-to-be-ex-husband. Deason observed Burch
using her desktop computer and learned from Gowin that Burch had also used the
computer when she was at work. Deason investigated the search history on the
computer. Discovering search terms possibly related to child pornography and
incestual relationships, Deason called Burch’s probation officer and gave the
computer to a probation officer.
1 The Honorable Stephen H. Locher, United States District Judge for the
Southern District of Iowa.

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Federal officials examined the computer and discovered over 1,000 pages of
searches using sexually explicit terms, including “daddy teen upskirt,” “preteen nude
girl pic,” and “teen daughter teasing daddy porn.” The examination also revealed
child pornography in the computer’s cache and in the system volume information
folder, indicating someone had viewed them.
Several months later, Burch had moved back to the residential reentry center
and was working at a Dollar Tree store. A resident officer at the reentry center
contacted Burch’s probation officer about an unapproved smart phone belonging to
Burch. The resident officer told the probation officer that one of Burch’s Dollar
Tree coworkers had given the resident officer the phone and claimed it belonged to
Burch. The probation officer conducted a cursory search. This search revealed
videos that concerned the probation officer because they focused on the pubic area
of multiple females.
Three of these videos involved a 15-year-old girl, S.A., a friend of one of
Burch’s co-workers. Burch surreptitiously filmed three videos on two different days
while he talked to S.A. Each video lasted between three and six minutes. On both
days, Burch went into the Dollar Tree parking lot to interact with S.A., who was
sitting in the driver’s seat of her friend’s vehicle. Burch would place his phone on
the passenger-side mirror, with the camera focused on S.A.’s pubic area and zoomed
in from various angles. Although S.A. was clothed, she was wearing shorts and her
legs were spread apart and, at times, propped up.
S.A. testified that after one of her conversations with Burch, who had at one
point offered to pay her $50 for pictures to send to Burch’s friend in prison, she
suspected Burch was recording her with his cell phone. To investigate, S.A. placed
her phone on the side mirror of the vehicle where Burch’s phone had been set during
the conversation. She recorded a video to see what her camera would capture.
According to S.A., this test revealed Burch had his camera directed at her “shorts.”

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Probation officers confronted Burch about the videos of S.A. Burch admitted
the phone belonged to him, he knew S.A. was only 15-years old, and he produced
the videos of her. The conversation eventually turned to the contents of a flip phone
Burch possessed with his probation officer’s approval. An officer retrieved the flip
phone and conducted a cursory search. The officer discovered searches and websites
visited that concerned him based on their “themes” related to “teen pornography.”
Burch admitted to the officers he had sought out pornography he considered “taboo”
using the search terms “incest, teen and daughter,” explaining he was “bored,”
“frustrated,” and suffered from erectile dysfunction. Burch took responsibility for
the phone, pornography, and searches, but denied viewing any child pornography on
the phone. A later more thorough search of the flip phone revealed internet searches
such as “small teen pussy XXX porn,” “teen girl porn pic,” and “teen daughter XXX
upskirt,” as well as an image of child pornography downloaded just four days before
his encounter with the probation office.
A grand jury charged Burch with four counts: attempted sexual exploitation
of a minor in violation of 18 U.S.C. §§ 2251(a) and 2256 (Count 1); attempted
receipt and receipt of child pornography on a desktop computer in violation of 18
U.S.C. §§ 2252(a)(2) and (b)(1), and 2256 (Count 2); attempted receipt and receipt
of child pornography on a Alcatel Quickflip cell phone in violation of 18 U.S.C.
§§ 2252(a)(2) and (b)(1), and 2256 (Count 3); and committing a felony offense
involving a minor, namely attempted sexual exploitation as charged in Count 1,
while required to register as sex offender in violation of 18 U.S.C. § 2260A (Count
4).
The district court presided over a three-day jury trial. The government called
six witnesses, including Deason, Gowin, S.A., two probation officers, and a United
States Probation Office’s systems specialist that performed the forensic examination
of Burch’s devices. During testimony by one of the probation officers, the district
court admitted, over Burch’s objection, evidence of Burch’s 2014 conviction for
child pornography. The evidence was admitted under Federal Rules of Evidence
404(b) and 414(d)(2)(B). In his defense, Burch called two witnesses to try to

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establish people other than Burch, including another sex offender, had access to the
devices and could have been responsible for the searches and child pornography, and
to cast doubt on Deason’s credibility.
At the close of evidence, the jury convicted Burch on all four counts charged.
The district court then sentenced Burch to 420 months of imprisonment, to be
followed by a lifetime of supervised release.2
II. Discussion
Burch appeals, challenging the district court’s decision to admit into evidence
Burch’s prior federal child pornography conviction, the sufficiency of evidence on
all four counts, and the revocation of his supervised release.
A. Admission of Prior Conviction
Burch argues the district court improperly allowed the government to inform
the jury of his 2014 conviction for possession of child pornography. “We review
evidentiary rulings for abuse of discretion, reversing only if admission affected a
defendant’s substantial rights.” United States v. Sanchez, 42 F.4th 970, 974 (8th Cir.
2022). No abuse of discretion occurred here.
At a pretrial conference, the district court explained evidence of Burch’s prior
conviction for possession of child pornography was admissible under Federal Rule
2 On the new convictions, the district court imposed 300 months of
imprisonment on Count 1, 240 months to be served concurrently with each other on
Counts 2 and 3, and 120 months on Count 4 to be served consecutive to all other
counts. Based on findings Burch’s actions with computers and cell phones violated
terms of his supervised release in numerous ways, the district court also revoked
Burch’s supervised release from his previous conviction. The district court imposed
a revocation sentence of 24 months to run concurrently to Counts 1 and 4 and
consecutive to Counts 2 and 3.

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of Evidence 414(d)(2)(B).3 “Rule 414 evidence can be used to show a defendant’s
propensity to be sexually interested in minors.” United States v. Splettstoeszer, 956
F.3d 545, 548 (8th Cir. 2020); accord United States v. Bartunek, 969 F.3d 860, 864
(8th Cir. 2020). “Even if the evidence is relevant, the probative value must not be
substantially outweighed by one or more factors enumerated in Rule 403.” Sanchez,
42 F.4th at 975. This is where Burch focuses his appeal, arguing any probative value
his past child pornography conviction had was “substantially outweighed by the
danger of . . . unfair prejudice, confusing the issues, [and] misleading the jury . . . .”
Fed. R. Evid. 403. We disagree.
We have previously held that using Rule 414 evidence to prove “the
defendant’s propensity to sexually exploit children is not, in itself, unfair.” Sanchez,
42 F.4th at 976 (quoting Splettstoeszer, 956 F.3d at 548); see also United States v.
LeCompte, 131 F.3d 767, 769–70 (8th Cir. 1997) (reversing a district court’s
decision to exclude Rule 414 testimony under Rule 403 “[i]n light of the strong
legislative judgment that evidence of prior sexual offenses should ordinarily be
admissible”). And Burch has failed to explain how the admission of his prior
conviction confused the issues or misled the jury, other than baldly claiming
knowledge of his prior conviction “primed the jury” to view the video of the minor
S.A. in the car as “suspicious.” We are unconvinced this information posed a risk
of jury confusion.
“To decide whether a district court properly balanced the probative value of
the proposed Rule 414 evidence with the risk of unfair prejudice under Rule 403, we
consider whether the district court placed limits on the testimony and provided
3 The district court also admitted the evidence under Rule 404(b), which
provides that although a past conviction is “not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character[,]” it “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” Fed. R. Evid. 404(b)(1)–(2). On appeal, Burch
does not challenge the admission of this evidence for limited purposes under Rule
404(b).

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cautionary jury instructions.” United States v. Schave, 55 F.4th 671, 678 (8th Cir.
2022). The district court properly did both here. When overruling Burch’s
objection, the district court explained the government planned only “to admit the
prior judgment of conviction and sex offender registry form.” Later at trial, a
probation officer testified about Burch’s sex offense and registry form. This
testimony was focused on the fact of conviction for possessing child pornography
and its relation to his conditions of supervised release,4 and unlike cases where we
were “troubled by the quantity and level of detail presented to the jury[,]” Schave,
55 F.4th at 679, the testimony here did not stray into unfairly prejudicial details of
his past crime. Also, the district court gave the jury a cautionary instruction
regarding the proper and improper uses of Burch’s conviction in its deliberations,
warning the jury it could only convict Burch for the charged crimes, and not any past
crime. We thus conclude the district court did not abuse its discretion by admitting
the challenged evidence in the manner it did.
B. Sufficiency of Evidence
Burch argues the evidence was insufficient to support any of his convictions.
“We review challenges to the sufficiency of the evidence de novo, ‘viewing the
evidence in the light most favorable to the verdict.’” United States v. Gross, 23 F.4th
1048, 1052 (8th Cir. 2022) (quoting United States v. Lussier, 844 F.3d 1019, 1023
(8th Cir. 2017)). “We will reverse ‘only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt.’” Id. (quoting same). Reversal is not
warranted here.
We begin with Count 1, Burch’s conviction for attempting to sexually exploit
a minor. As relevant to this appeal, the government needed to prove Burch attempted
to “produce[] a visual depiction of a minor engaged in sexually explicit conduct—
in this case a lascivious exhibition of the genitals or pubic area.” United States v.
4 For example, the government established Burch had to register as a sex
offender as a condition of his supervised release, which was a necessary element of
Count 4.

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McCoy, 108 F.4th 639, 645 (8th Cir. 2024); see also 18 U.S.C. § 2256(2)(A)(v)
(defining “sexually explicit conduct” to include the “lascivious exhibition of the
anus, genitals, or pubic area of any person”); United States v. Johnson, 639 F.3d 433,
438 (8th Cir. 2011) (“Any plain reading of subsection (e) shows that it is a violation
of § 2251 to attempt to commit the crime defined in subsection (a) of § 2251.”).
Because “[t]he case was submitted to the jury only on an attempt theory[,]”
Burch’s “success in attaining his criminal objective is not necessary[.]” Johnson,
639 F.3d at 439 (quoting United States v. Bauer, 626 F.3d 1004, 1007 (8th Cir.
2010)). The question to be resolved is whether a reasonable jury could conclude
Burch intended to capture an image of S.A. lasciviously displaying her pubic area
and took a substantial step toward accomplishing this objective. See United States
v. Petroske, 928 F.3d 767, 773 (8th Cir. 2019) (“The elements of attempt are ‘intent
to commit the predicate offense’ and ‘conduct that is a substantial step toward its
commission.’” (quoting United States v. Young, 613 F.3d 735, 742 (8th Cir. 2010))).
The evidence presented to the jury supports such findings—although it is admittedly
a close call.
The jury heard evidence Burch had previously been convicted of possessing
child pornography, from which it could deduce he had a sexual interest in minors.
The jury also heard and saw evidence from which it could conclude Burch had
recently conducted repeated internet searches in a quest to see sexualized minors,
including images focusing on a minor’s pubic area. For example, there was evidence
of his live-in girlfriend’s computer and his flip phone containing such searches.
Against this backdrop, the jury watched three videos showing Burch
interacting with a known 15-year-old, S.A., in a car, while he surreptitiously
recorded her on his smart phone. During these interactions, which lasted up to six
minutes, Burch aimed his recording device almost exclusively on S.A.’s pubic
region, repeatedly changing the angle and zooming in. Although S.A. was clothed,
the unnatural way in which she was sitting—with her legs spread and at times
propped up—and the length and fit of her shorts combined to barely conceal her

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pubic area. Considering all this evidence, a reasonable jury could conclude Burch
secretly filmed S.A. in unnatural positions with the hope of capturing a lascivious
display of her genitals. See Johnson, 639 F.3d at 440 (“A reasonable jury could find
from the evidence that [the defendant] adjusted the zoom feature in an attempt to
tighten the focus of the camera on the area where the females’ genitals would be if
they were to face the camera . . . .”) In other words, this collection of evidence could
lead the jury to believe beyond a reasonable doubt that Burch “intended to create
child pornography and took a substantial step toward doing so by recording the
videos.” Petroske, 928 F.3d at 773.
Burch tries to evade this result by arguing he accomplished what he attempted
to do—capturing an inappropriate-but-not-lascivious image of the pubic area of a
fully-clothed minor. Burch maintains an image lacking nudity cannot, as a matter
of law, support his conviction for attempted production of child pornography. But
Burch’s argument ignores the fact the charge was not for completed production.
While the jury was free to believe Burch captured all he intended, it certainly was
not required to reach this conclusion. See Johnson, 639 F.3d at 438, 441 (holding
there was sufficient evidence for a reasonable jury to conclude the defendant
attempted to produce child pornography even though the district court held the
defendant failed to produce a visual depiction of a lascivious exhibition of the
minor’s genitals or pubic area). Instead, a reasonable jury could conclude Burch—
who had recently been searching for child pornography, had offered S.A. money for
photographs, and was focusing on her pubic area from various angles while he
secretly recorded her—was trying to capture a lascivious display of a minor’s pubic
area.5
5 Burch’s argument that there was insufficient evidence to convict him on
Count 4 depends entirely on his contention there was insufficient evidence to convict
him of committing the attempted production of child pornography felony as
described in Count 1. Having concluded there was sufficient evidence to convict
Burch on Count 1, we necessarily reject his challenge to Count 4.

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We turn to Counts 2 and 3, which charged Burch for attempted receipt and
receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1), and
2256. To find Burch guilty of attempted receipt of child pornography in violation
of 18 U.S.C. § 2252, the jury was instructed it had to conclude beyond a reasonable
doubt: (1) Burch knowingly attempted to receive computer files that contained visual
depictions of a minor engaged in sexually explicit conduct; (2) Burch knew the
visual depictions were of a minor engaging in sexually explicit conduct; and (3) the
visual depictions were produced using materials that had been transported in
interstate commerce or were received using a means and facility of interstate
commerce. The jury was further instructed it could find Burch “guilty of attempt if
he intended to receive computer files that contained one or more visual depictions
of a minor engaged in sexually explicit conduct and voluntarily and intentionally
carried out some act which was a substantial step toward that goal.” There was
sufficient evidence to support each count of conviction for receipt or attempted
receipt of child pornography.
As to Count 2, there was sufficient evidence for the jury to conclude Burch
used Deason’s desktop computer to look for, possess, and view child pornography.
It is undisputed the computer was used to look for child pornography during the time
Burch lived with Deason and images of child pornography were found in the cache
of the desktop computer, indicating they had in fact been viewed. The forensic
examination of the computer had over 1,000 pages of sexually explicit search terms
and related information. The searches occurred during the time Burch and Deason
lived together and were similar in type to those Burch admitted making on his
personal flip phone. From this evidence, a reasonable jury could conclude Burch
attempted to possess, and in fact did possess and view child pornography on
Deason’s desktop computer.
Moving on to Count 3, there was sufficient evidence for the jury to conclude
Burch used his flip phone to look for and view child pornography. Burch admitted
he viewed pornography on his approved cell phone, seeking out pornography that
he considered “taboo” because he was bored, frustrated, and suffered from erectile

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dysfunction. And a forensic exam of the phone revealed an image of child
pornography downloaded on August 1, 2022, as well as sexually explicit search
terms suggesting attempts to view child pornography.
Burch argues there are other plausible explanations for the searches and the
images of child pornography found on both devices. He suggests Gowin, Deason,
or her daughter could have conducted the searches and downloaded the pornography
on the desktop computer. And as for the flip phone, Burch points out it was not
under his exclusive control, was not password protected, and another convicted sex
offender had access to it. The government questions the plausibility of these
alternative explanations, pointing out Burch was the only person with an interest in
child pornography who had used Deason’s desktop computer during the pertinent
time, and Burch admitted to officers that he sought sexually explicit material on his
flip phone. We might also add the similarity between the searches on the desktop
computer and the flip phone suggest Burch, who seemingly was the only person who
had access to both devices, was responsible. Regardless, even if Burch’s alternative
theories are within the realm of possibility, they do not give us reason to overturn
the jury’s verdict. See United States v. Nosley, 62 F.4th 1120, 1129 (8th Cir. 2023)
(explaining the appellate court does not weigh evidence or assess the credibility of
a witness). “If evidence consistent with guilt exists, we will not reverse simply
because the facts and the circumstances may also be consistent with some innocent
explanation.” United States v. Huyck, 849 F.3d 432, 442–43 (8th Cir. 2017) (quoting
United States v. Griffith, 786 F.3d 1098, 1102 (8th Cir. 2015)). A reasonable juror
could conclude it was Burch who conducted these searches and was responsible for
the child pornography found on Deason’s desktop computer and his flip phone. This
is enough to uphold the convictions on Counts 2 and 3.6
6 Burch argues finally that because his “supervised release revocation was
based in part on his conviction[s], . . . the court’s revocation must also be vacated
and remanded for further consideration.” Having affirmed all four convictions, we
need not consider this argument and thus affirm the revocation of his supervised
release.

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III. Conclusion
Having concluded the district court did not abuse its discretion by admitting
evidence of Burch’s prior conviction for possessing child pornography, and that
there was sufficient evidence to support conviction on all four counts and to revoke
his supervised release, we affirm the district court’s judgment.

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