[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-17205

Non-Argument Calendar

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D.C. Docket No. 1:16-cr-00054-CG-B-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

JEREMIAH HUNTER, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

________________________

(December 29, 2017)

Before HULL, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

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In February 2016, Defendant Jeremiah Hunter, a teacher and cheerleading 

coach at Hankins Middle School, asked his student C.J.1 to send him nude 

photographs of other male students. C.J. texted Defendant nude photographs of 

three thirteen and fourteen-year old boys. Based on this conduct, the jury 

convicted Defendant on one count of knowingly receiving images of child 

pornography through interstate commerce in violation of 18 U.S.C. § 2252A(a)(2) 

and (b)(1). Defendant appeals, arguing that there was insufficient evidence that the 

photographs he received satisfy the statutory definition of child pornography. 

After careful review, we affirm.

I. BACKGROUND

A. Factual Background2

Defendant was a science teacher and cheerleading coach at Hankins Middle 

School. He regularly talked with some of his students about non-school related 

topics over text and social media. Defendant was especially close with students 

C.J. and H.S. At the time of these events, C.J. and H.S. were male eighth graders

on Defendant’s cheerleading team and in Defendant’s science class. On January 

13, 2016, Defendant let C.J. and H.S. skip physical education during fourth period. 

 1

 The minors are identified by their initials. 

2

 Because the jury found Defendant guilty of the present charge, the facts are presented in the 

light most favorable to the Government, with all reasonable inferences and credibility 

determinations resolved in favor of the jury’s verdict. United States v. Doe, 661 F.3d 550, 560 

(11th Cir. 2011).

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Instead of attending physical education, C.J. and H.S. hung out in Defendant’s 

classroom and helped him set up a laboratory experiment that the class would 

conduct that afternoon. While they were setting up, C.J. told Defendant that some 

of the girls on the cheerleading team were sending nude pictures of themselves to 

other students. C.J. showed Defendant a picture of a nude male on his phone. The 

person’s face was not visible, but C.J. informed Defendant that it was a picture of 

C.S., another student in Defendant’s class. 

Defendant testified that he verbally told C.J. to get rid of the picture. But 

later that afternoon, Defendant texted C.J. asking for the photograph, saying: 

“Send me one of those pics. I’m going to ask [C.S.] if he’s sending that. I won’t 

tell him it’s from you.” Before he heard back from C.J., Defendant asked C.S. if 

he was sending out inappropriate pictures of himself and C.S. replied that he was 

not. Defendant testified that as C.J. was leaving school, he again told C.J. to get 

rid of the pictures. But about twenty minutes later, C.J. texted Defendant three 

photographs of a nude male student. Defendant saw the text when he arrived home 

from school. 

Approximately three hours later, Defendant texted C.J. back. Within the 

first minute of their conversation, Defendant asked C.J. to send him photographs of 

students he knew, saying “I wanna see peeps I know.” Defendant and C.J. then 

discussed the sizes of male students’ genitalia. They discussed whether certain 

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students were big or small, how many inches they were, and how many inches they 

were when they were aroused. Defendant told C.J. that he had previously seen 

pictures and videos of other nude students. Defendant described what another 

student’s genitalia and butt looked like. Defendant also told C.J. that another male 

student had shown Defendant a video of himself masturbating. Defendant 

repeatedly stated that he wanted to see pictures of students he knew. He even 

asked for photographs of a specific student, saying “I wanna see [T.U.] . . . Get 

them.” C.J. sent Defendant more photographs.

C.J. sent Defendant pictures of three male students, C.S., C.Z., and N.W. At 

the time they took the pictures, C.S. and C.Z. were fourteen years old and N.W. 

was thirteen years old. C.S. and N.W. were both in Defendant’s science class and 

C.Z. was on Defendant’s cheerleading team. C.S., C.Z., and N.W. all took the 

photographs of themselves. C.J. sent Defendant three photographs of C.S. in the 

bathroom. In all three photographs, C.S.’s face is not visible. The photographs are 

focused on C.S.’s genitalia and he is aroused. In two of the photographs, C.S. is 

holding himself. C.J. sent Defendant four photographs of C.Z. in the bathtub. In 

two of the photographs, C.Z.’s face is visible and his genitalia are just out of the 

camera’s view. One photograph shows most of C.Z.’s body with his hand 

covering his genitalia. The final photograph shows C.Z.’s chest and lower body 

with his genitalia visible. C.J. also sent Defendant four photographs of N.W. One 

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photograph shows N.W.’s chest and underwear and another shows his face and 

chest. Two photographs are focused on N.W.’s aroused genitalia. In both, N.W. is 

using his hand to display himself for the camera. 

Defendant never reported these photographs. Hankins Middle School

requires teachers to report all material from students involving “sexual acts,” but 

Defendant did not tell other teachers, the principal, or the students’ parents about 

the photographs. 

Approximately one month after C.J. sent Defendant the photographs, 

Defendant texted with H.S. Defendant implied that he was masturbating and asked 

H.S. if he wanted to join. Defendant and H.S. discussed nude and dirty 

photographs of other students. Defendant told H.S., “I wanna see these pics[.] I’m 

serious.” When H.S. didn’t reply, Defendant said, “[Y]ou are no help[.] You are 

killing me!!!!!!!!!!” Defendant also sent H.S. photographs using Snapchat3 and 

asked H.S. to delete previous conversations they had had on Facebook. 

On February 18, 2016, the Mobile County Sherriff’s Office executed a 

search warrant of Defendant’s house and seized his phone and computer. A 

special agent from the Federal Bureau of Investigation analyzed Defendant’s

phone and found the texts and photographs described above. The agent also 

looked at Defendant’s internet search history. Defendant had multiple 

 3

 Snapchat is a photo-sharing application that does not save the photographs that are sent. 

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pornography websites bookmarked, including videos involving teenagers. He 

visited pornography websites involving teenagers, young boys, and “really young 

boy[s].” 

B. Procedural History

On March 31, 2016, a grand jury indicted Defendant on one count of 

knowingly receiving images of child pornography through interstate commerce in 

violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). At trial, the Government 

presented testimony from multiple law enforcement officers and introduced the 

texts and photographs described above. C.S., C.Z., and N.W. testified that the 

nude photographs that C.J. sent Defendant are pictures of them. At the close of the 

Government’s case, Defendant moved for judgment of acquittal and the court 

denied the motion. Defendant then testified. He admitted that he received nude 

photographs from C.J.:

Question: Sir, you admit that that cell phone that’s been introduced 

into evidence is yours; correct?

Answer: Yes.

Q: And you received the text messages from CJ? 

A: Yes ma’am.

. . . .

Q: You received the images that focused on the penises of little boys?

A: Yes.

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Defendant testified that he didn’t think that the photographs were “sexual acts” and 

that he wasn’t turned on by the pictures:

Question: Okay. How did that picture affect you?

Answer: It didn’t.

Q: It wasn’t a big turn-on?

A: No.

But Defendant admitted that he found the pornography websites he visited 

featuring teenagers and young boys to be “sexually arousing.” 

Defendant testified that he asked C.J. for the photographs so that he could 

investigate whether students were sending nude pictures of themselves. He stated 

that he commented on what students looked like nude and on how big various 

students were in order to determine if the photographs were real. Defendant 

testified that he wanted this information in order to inform the principal and 

students’ parents that students were sending out nude photographs. However, 

Defendant admitted that he never reported the photographs. He did not tell other 

teachers, the principal, or students’ parents. 

At the close of all evidence, Defendant renewed his motion for judgment of 

acquittal. The court denied the motion and the jury found Defendant guilty on one 

count of knowingly receiving child pornography in violation of 18 U.S.C. 

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§ 2252A(a)(2) and (b)(1). The court sentenced Defendant to 120 months’ 

imprisonment. 

II. DISCUSSION

Defendant argues that the district court erred in denying his motions for 

judgment of acquittal because there was insufficient evidence to convict. 

Specifically, Defendant argues that the photographs he received from C.J. do not 

meet the statutory definition of child pornography. We affirm, concluding that 

there was sufficient evidence for the jury to convict Defendant of knowingly 

receiving images of child pornography through interstate commerce.

A. Sufficiency of the Evidence 

We review sufficiency of the evidence de novo, viewing all evidence in the 

Government’s favor and drawing all inferences and credibility determinations in 

favor of the jury’s verdict. United States v. Grzybowicz, 747 F.3d 1296, 1304 

(11th Cir. 2014). A verdict is supported by sufficient evidence if a reasonable jury 

could find that the evidence established guilt beyond a reasonable doubt. United 

States v. Smith, 459 F.3d 1276, 1286 (11th Cir. 2006). The jury may choose 

between reasonable constructions of the evidence. United States v. Williams, 390 

F.3d 1319, 1323 (11th Cir. 2004); United States v. Perez-Tosta, 36 F.3d 1552, 

1556–57 (11th Cir. 1994) (“For the evidence to support a conviction, it need not 

exclude every reasonable hypothesis of innocence or be wholly inconsistent with 

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every conclusion except that of guilt, provided a reasonable trier of fact could find 

that the evidence establishes guilt beyond a reasonable doubt.”) (quotation marks 

omitted). We only reverse for lack of sufficient evidence if there was not enough 

evidence for a reasonable factfinder to find guilt beyond a reasonable doubt. 

United States v. Young, 39 F.3d 1561, 1565 (11th Cir. 1994). 

If a defendant chooses to testify on his own behalf, any statements he makes, 

“if disbelieved by the jury, may be considered as substantive evidence of the 

defendant’s guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) 

(emphasis in original). See also Williams, 390 F.3d at 1325 (“Defendants in 

criminal trials are not obliged to testify. And a defendant who chooses to present a 

defense runs a substantial risk of bolstering the Government’s case.”) (quotation 

marks omitted). In hearing the defendant’s words and seeing his demeanor, the 

jury is entitled to not only disbelieve the defendant, but to believe the opposite of 

what the defendant said. Brown, 53 F.3d at 314; Williams, 390 F.3d at 1325–26.

B. 18 U.S.C. § 2252A(a)(2)(A)

Under 18 U.S.C. § 2252A(a)(2)(A), it is unlawful for any person to 

“knowingly receive[ ] or distribute[ ] any child pornography that has been mailed, 

or using any means or facility of interstate or foreign commerce shipped or 

transported in or affecting interstate or foreign commerce by any means, including 

by computer.” Child pornography is “any visual depiction, including any 

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photograph, film, video, picture, or computer or computer-generated image or 

picture, whether made or produced by electronic, mechanical, or other means, of 

sexually explicit conduct, where the production of such visual depiction involves 

the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(A). 

To establish a violation, the Government therefore must prove that Defendant 

knowingly received an image of a minor engaging in sexually explicit conduct and 

that such image was transported through interstate commerce. See 18 U.S.C. 

§ 2252A(a)(2)(A); 18 U.S.C. § 2256(8)(A). Defendant challenges whether there 

was sufficient evidence that the photographs he received display sexually explicit 

conduct. He argues that while the photographs contain nudity, they are not 

sexually explicit. 

Sexually explicit conduct is “actual or simulated sexual intercourse, 

including genital-genital, oral-genital, anal-genital, or oral-anal, whether between 

persons of the same or opposite sex; bestiality; masturbation; sadistic or 

masochistic abuse; or lascivious exhibition of the genitals or pubic area of any 

person.” 18 U.S.C. § 2256(2)(A). The parties agree that the pictures Defendant 

received from C.J. are not intercourse, bestiality, masturbation, or abuse. Thus, the 

only issue on appeal is whether there was sufficient evidence for the jury to 

conclude that the photographs qualify as a “lascivious exhibition of the genitals or 

pubic area of any person.” 

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1. Lascivious Exhibition

A lascivious exhibition is one that “potentially ‘excites sexual desires’ or is 

‘salacious.’” Grzybowicz, 747 F.3d at 1305–06 (alternation accepted). See also

United States v. Williams, 444 F.3d 1286, 1299 (11th Cir. 2006), rev’d on other 

grounds, 553 U.S. 285 (2008). A photograph can picture a naked child without 

being lascivious. Williams, 444 F.3d at 1299; United States v. Kemmerling, 285 

F.3d 644, 645–46 (8th Cir. 2002) (“more than mere nudity is required before an 

image can qualify as ‘lascivious’ within the meaning of the statute”). But, on the 

other hand, a photograph can be lascivious even if the child is not naked and the 

depiction is not “dirty.” Williams, 444 F.3d at 1299. Photographs are blatantly 

lascivious if the defendant “cannot and has not suggested any non-sexual purpose 

[the photographs] might have served or how they might possibly be viewed as nonsexual” and if it would be “unreasonable and utterly contrary to the evidence” for a 

jury to find that the photographs are not lascivious. Grzybowicz, 747 F.3d at 1307.

The vast majority of circuits utilize a multi-factor test, known as the Dost 

test,4 to determine if there was sufficient evidence for a jury to conclude that a 

photograph is a lascivious exhibition. See United States v. Amirault, 173 F.3d 28, 

31–32 (1st Cir. 1999); United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008); 

United States v. Larkin, 629 F.3d 177, 182 (3d Cir. 2010); United States v. McCall, 

 4

 United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986).

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833 F.3d 560, 563–64 (5th Cir. 2016); United States v. Daniels, 653 F.3d 399, 407 

(6th Cir. 2011); United States v. Wallenfang, 568 F.3d 649, 657–58 (8th Cir. 

2009); United States v. Overton, 573 F.3d 679, 686–87 (9th Cir. 2009); United 

States v. Wells, 843 F.3d 1251, 1253–54 (10th Cir. 2016). Contra United States v. 

Price, 775 F.3d 828, 839–40 (7th Cir. 2014) (“This case does not require us to 

determine whether the Dost factors are always or never permissible, but we do take 

this opportunity to discourage their routine use.”). On two previous occasions, we 

acknowledged that many courts use the Dost test, but did not decide whether Dost 

applies in this circuit. See Grzybowicz, 747 F.3d at 1306 & n.8 (“While the parties 

ask us to consider a non-exclusive list of six factors, known as the Dost factors, to 

define lasciviousness, this case does not require a multi-factor analysis.”); 

Williams, 444 F.3d at 1299 n.62 (“Virtually all lower courts that have addressed 

the meaning of ‘lascivious exhibition’ have embraced the widely followed ‘Dost’ 

test.”). We also provide the Dost factors as the definition of lascivious exhibition

in our model jury instructions for this crime. See 11th Cir. Pattern Jury Instr. 

(Crim.) 83.4A (2010). As both Defendant and the Government use the Dost 

factors in analyzing this question, we will likewise consider these factors to 

determine if the photographs Defendant received from C.J. are a lascivious 

exhibition.

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To determine if there was sufficient evidence for a jury to conclude that a 

photograph is a lascivious exhibition of genitals, the Dost test looks to six factors:

1) whether the focal point of the visual depiction is on the child’s 

genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, 

i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in 

inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a 

willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a 

sexual response in the viewer.

United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986). A photograph can 

be lascivious even if all six factors are not met. Id. And the court may look to 

other relevant factors. Id.; Overton, 573 F.3d at 686 (“The Dost factors . . . are 

neither exclusive nor conclusive, but operate as merely ‘a starting point.’”).

2. Analysis

The photographs Defendant received from C.J. satisfy all six Dost factors: 

First, the focal point of many of the pictures is on the student’s genitalia. Many do 

not picture the student’s faces. Instead, the main or only image in the photographs 

is the student’s genitalia. Second, the pictures of C.S. and C.Z. were taken in the 

bathroom, a place where nudity regularly occurs and which can be associated with 

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sexual activity. See generally United States v. Holmes, 814 F.3d 1246 (11th Cir. 

2016) (holding that photographs taken of a child in her bathroom are a lascivious 

exhibition); Larkin, 629 F.3d at 183 (“[S]howers and bathtubs are frequent hosts to 

fantasy sexual encounters as portrayed on television and in film. It is potentially as 

much of a setting for fantasy sexual activity as is an adult’s bedroom.”). Next, the 

students are not naturally posed. In many of the photographs, the students are 

displaying their genitalia for the camera. Many picture the students holding 

themselves or using their hand to display their genitalia. Fourth, in most of the 

photographs, the students are completely nude. Fifth, many images show the 

students aroused, which suggests sexual coyness or a willingness to engage in 

sexual activity. Finally, we can infer that the photographs are intended or designed 

to elicit a sexual response from the viewer because the students displayed 

themselves for the camera, are aroused, and sent the pictures to other students. See 

Overton, 573 F.3d at 687 (inferring intent to elicit a sexual response from the 

child’s pose and the photograph’s focus on the child’s genitalia); Wallenfang, 568 

F.3d at 659–60 (inferring intent to elicit a sexual response from the fact that the 

photographs were shared on a website devoted to sexual images). 

Further, there was sufficient evidence for the jury to conclude that 

Defendant himself was sexually aroused by the photographs. Defendant asked his 

student C.J. to send him the photographs while discussing the size and appearance 

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of students’ genitalia. Defendant even asked for photographs of a specific student 

and told C.J. that he had viewed photographs and videos of nude students before. 

After receiving these photographs, Defendant asked another student H.S. to send 

him additional nude pictures. Defendant also implied to H.S. that he was 

masturbating and asked if H.S. wanted to join. Further, Defendant watched and 

was aroused by online pornography involving teenagers and young boys. 

Although Defendant testified that he was not turned on by the photographs C.J. 

sent him, the jury was free to disbelieve Defendant and “a statement by a 

defendant, if disbelieved by the jury, may be considered as substantive evidence of 

the defendant’s guilt.” Brown, 53 F.3d at 314 (emphasis in original). See also

United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002) (“[I]n 

combination with other evidence, the jury’s disbelief of a defendant’s testimony 

may be used to help establish his guilt.”) (emphasis omitted). 

In sum, the photographs Defendant received from C.J. satisfy all six Dost 

factors. There was sufficient evidence for the jury to conclude that the 

photographs are a lascivious exhibition of the student’s genitalia and therefore 

meet the statutory definition of child pornography.

CONCLUSION 

For the above reasons, we conclude that there was sufficient evidence for the 

jury to find that Defendant violated 18 U.S.C. § 2252A(a)(2) and (b)(1) by 

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knowingly receiving images of child pornography through interstate commerce. 

We therefore AFFIRM. 

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