Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court, St. Louis County 14SL-CR07432-01
Honorable Gloria Clark Reno
E. Cerna ("Defendant") appeals his conviction of
one count of sexual exploitation of a minor and one count of
invasion of privacy in the second degree. We affirm.
summer of 2014, Defendant-a police officer for
Chesterfield-came under investigation for posting
pornographic videos on his websites
"veryhot***.com" and "Restroom ***"
(which hosted a large number of hidden-camera videos recorded
in men's restrooms). The investigating officers executed
a search warrant on Defendant's home and discovered
hundreds of illicit videos produced by Defendant. These
included the hidden-camera videos recorded in a gas station
restroom and in the Chesterfield police station locker room,
as well as other pornographic videos produced both in
Defendant's home and elsewhere. The three videos at issue
in this appeal show Defendant, while under the guise of an
investigative search incident to detention, exposing and
recording the genitals of teenage males without their
summer of 2013, Defendant detained and searched Z.C., a
nineteen-year-old male. The video, approximately
two-and-a-half minutes long and titled "All in a days
[sic] work![, ]" shows Defendant pulling Z.C.'s
waistband outward multiple times, exposing Z.C.'s
genitals to the camera. After searching Z.C.'s car,
Defendant released Z.C.
December 25, 2013, Defendant arrested eighteen-year-old R.W.
At the police station, Defendant "aggressively"
searched R.W. twice-once before he interviewed R.W. and the
second just before R.W.'s release. The video,
approximately 78 seconds long (and in slow motion), depicts
Defendant pulling R.W.'s pants and underwear outward,
exposing his genitals.
January 21, 2014, Defendant assisted with a traffic stop of
sixteen-year-old L.P. While the other officer searched the
vehicle, Defendant "really frisked" L.P. The video
depicts Defendant pulling the waistband of L.P.'s shorts
and underwear outward, shining a flashlight down the front of
L.P.'s pants, and exposing L.P.'s genitals. The video
shows L.P.'s penis for about ten seconds, Defendant is
then heard saying "you know where people can hide stuff,
" and L.P's genitals are then re-exposed to the
camera for five more seconds. The video does not depict any
other part of L.P.'s body. Superimposed in the corner of
the video is L.P.'s driver's license photo.
was charged with one count of the class B felony of sexual
exploitation of a minor, in violation of Section 573.023, and
one count of the class D felony of second degree invasion of
privacy, in violation of Section 565.253. Defendant waived
his right to a jury trial, and the parties submitted the case
to the trial court upon stipulated evidence for the trial
court to make factual findings. Defendant was found guilty of
both counts, was given a ten-year suspended execution of
sentence and placed on five years' probation. This appeal
submits five points on appeal, contending: (I and II) the
evidence is insufficient to show that Defendant knew
L.P.'s age or that the video was a "lascivious"
exhibition of L.P.'s genitals; (III) as a law-enforcement
officer, Defendant was protected from prosecution; (IV) the
charging document failed to name a minor victim for the
sexual exploitation of a minor charge; and (V) the statute
supporting the conviction for sexual exploitation of a minor
is unconstitutionally overbroad and void for vagueness.
reviewing the sufficiency of the evidence in a bench-tried
criminal case, the same standard is applied as in a jury
tried case. State v. Niederstadt 66 S.W.3d 12, 13
(Mo. banc 2002). We will affirm the trial court's
judgment if the State has introduced sufficient evidence from
which a reasonable fact-finder could have found each element
of the crime beyond a reasonable doubt. State v.
Wilder. 457 S.W.3d 354, 356 (Mo. App. S.D. 2015). This
court does not reweigh the evidence but, rather, considers it
in the light most favorable to the judgment and grants the
State all reasonable inferences. Id. Contrary
evidence and inferences are disregarded. Id. When
the facts relevant to an issue are contested, the reviewing
court defers to the trial court's assessment of the
evidence; it is only when the evidence is uncontested that no
deference is given to the trial court's findings.
Johnson v. State, 366 S.W.3d 11, 18-19 (Mo. banc
2012).Circumstantial evidence is given the same
weight as direct evidence in considering the sufficiency of
the evidence. State v. Grim, 854 S.W.2d 403, 405
(Mo. banc 1993).
I and II-Evidence is Sufficient to Support Sexual
first two points on appeal, Defendant contends the trial
court erred in denying his motion for judgment of acquittal
on count I of the class B felony of sexual exploitation of a
minor, arguing sufficient evidence was lacking to show (A)
Defendant knew L.P. was under the age of 18, and (B) the
video at issue constituted a "lascivious"
exhibition of L.P.'s genitals.
Knowledge of Age
was convicted of one count sexual exploitation of a minor, in
violation of Section 573.023, which required the State to
prove that "such person knowingly . . . films . . .
child pornography." Section 573.010(4) defines child
pornography as, inter alia, "[a]ny visual
depiction . . . of sexually explicit conduct, where [t]he
production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct[.]" Section
573.010(10) defines a "minor" is any person less
than eighteen years of age. Defendant contends he could not
be found guilty of this charge because he was unaware of
L.P.'s age at the time he filmed L.P.'s genitals.
person "acts knowingly, " or with knowledge with
respect to his or her conduct or to attendant circumstances
"when he or she is aware of the nature of his or her
conduct or that those circumstances exist." Section
562.016.3(1). As it is difficult to acquire direct evidence
of the requisite state of mind of a defendant, it is
permissible to infer a defendant's knowledge of the age
of a victim from ...