UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. REBEKAH KOOL, Defendant-Appellant. No. 13-7033 (D.C. No. 6:12-CR-00056-RAW-1) (E.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY , and BACHARACH , Circuit Judges.

Defendant Rebekah Kool appeals her c onviction for misprision of felony under 18 U.S.C. § 4. She was convicted by a jury of failing to notify authorities of, and helping to conceal, her husband’s viol ation of 18 U.S.C. § 2251(a), sexual exploitation of a minor. She argues that the district court erred in admitting evidence of (1) her husband’s nonverbal reaction to a law-enforcement offi cer’s statement, and

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - (2) testimony about photographs that di d not depict sexually explicit conduct. 1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Defendant’s son and daught er found nude or sexuall y explicit photographs of Defendant’s underage daughter and nieces on a home com puter, taken while they were sleeping. One image included a hand moving the three-year old niece’s diaper away to expose her vagina. The children r ecognized the hand as that of Defendant’s husband, Mark Kool (their stepfather), be cause it had the letters “k-o-o-l” tattooed across the knuckles. The child ren showed these pictures to Defendant. She tried to prevent her son from calling the police to report the pornography, helped Mr. Kool delete the images from the computer, and he lped smash and destroy the hard drives. Defendant did not report the crime to police and encouraged her children to lie about the photos. Law-enforcement officers were unable to recover any photos from the smashed computer and hard dr ives, but Defendant’s son and daughter testified at trial about the images they had seen. Defenda nt was convicted of failing to report to authorities, and helping to conceal, that Mr. Kool had produced sexually explicit photographs of her minor da ughter and nieces. She wa s sentenced to 30 months’ imprisonment.

1 Defendant’s statement of issues “further asserts that there was insufficient evidence to support the conviction of the De fendant.” Aplt. Opening Br. at 2. But there is no further mention of this argument in Defendant’s brief. Accordingly, we have not addressed this assertion. See United States v. Berry , 717 F.3d 823, 834 n.7 (10th Cir. 2013) (“Arguments raised in a perfunctory manner . . . are waived.” (internal quotation marks omitted)).- 3 - We review the “district court’s rulings on evidentiary matters and motions in limine for abuse of discretion.” Seeley v. Chase , 443 F.3d 1290, 1293 (10th Cir. 2006). “We will not reverse a district cour t’s ruling if it falls within the bounds of permissible choice in the circumstances and is not arbitrary, capricious or whimsical.” United States v. Mares , 441 F.3d 1152, 1156 (10th Cir. 2006) (brackets and internal quotati ons marks omitted).
I. A DMISSION OF N ONVERBAL C ONDUCT Lt. Timothy Keith testified that after he told Mr. Kool that one of the photographs had a hand with tattoos on it, Mr. Kool moved his hands from the interview table to under his armpits. Defe ndant argues that Mr. Kool’s conduct of moving his hands constituted a hearsay testimonial statem ent, and—because Mr. Kool did not testify—its admission vi olated the Confrontation Clause. The district court ruled that Mr. Kool’s act of placing his hands unde r his armpits was not an “assertion,” and therefore not hearsa y subject to the C onfrontation Clause. The Confrontation Clause prohibits the admission of hearsay statements that are testimonial unless the witness is unava ilable to testify and the defendant had a prior opportunity for cross-examination. See Crawford v. Washington , 541 U.S. 36, 68 (2004). To determine if the right to c onfrontation has been violated, this court first asks “whether the chal lenged evidence is hearsay.” United States v. Mendez , 514 F.3d 1035, 1043 (10th Cir. 2008). Although the Supreme Court has not ruled on when nonverbal conduct c onstitutes hearsay under Crawford , we can assume that it- 4 - will adopt the same view as the Federal Rules of Evid ence. Under those rules, nonverbal conduct cannot be hearsay unless it constitutes a statement, and it is a statement only if the declaran t “intended it as an asserti on.” Fed. R. Evid. 801(a). “Rule 801 places the burden upon the party cl aiming that the intention to make an assertion existed.” United States v. Jackson , 88 F.3d 845, 848 (10th Cir. 1996) (brackets and internal quotation marks omitted ). Defendant did not meet that burden here. The district court rule d, “It is obvious that Mark K ool did not intend to assert anything by his action.” R. Vol. 1, at 104. On appeal Defendant argues that it was “i mproper for the trial court to make a judicial determination with regard to what Mark Kool’s intent was.” Aplt. Opening Br. at 9-10. We disagree. Federal Rule of Evidence 104(a) states that “[t]he court must decide any preliminary question about whether . . . ev idence is admissible.” “[O]ne of the most routine determinations ma de by district courts . . . [is] whether an out-of-court statement constitutes inadmiss ible ‘hearsay’ with in the meaning of [Rule] 801.” United States v. Gonzales-Flores , 701 F.3d 112, 117 (4th Cir. 2012). The determination of whether an asserti on is intended “involves no greater difficulty than many other preliminary questions of fa ct.” Rule 801(a) advisory committee’s note. We perceive no error in the district court’s determination here. It is obvious that Mr. Kool was not trying to convey th at his were the hands in the picture. We also reject Defendant’s contention that the evidence was not relevant. Although Mr. Kool did not mean to admit that his hands were in the picture, a- 5 - reasonable juror could find that Mr. Kool’s action in voluntarily conveyed that message. Because the prosecu tion needed to prove Mr. K ool’s criminal conduct to convict Defendant of misprision, his in advertent admission was relevant and therefore admissible.
II. A DMISSION OF O THER T ESTIMONY Defendant complains about testimony by her son and daughter that they saw pictures of her daughter topless and in her bra taken from outside her bedroom window while she was sleeping. Defendant argues that the district court abused its discretion in allowing this testimony becau se the described pict ures do not depict “sexually explicit” conduct under 18 U.S.C. § 2256(2)(A)(v) (defining such conduct, in relevant part, as “las civious exhibition of the ge nitals or pubic area of any person”). She further argues that the pictures of her da ughter had an unfair prejudicial effect because they “suggest[ed] an element of betrayal of a duty of trust and protection.” Aplt. Opening Br. at 15. The district court ruled the challenge d testimony admissible because it was relevant to “prove motive, opportunity, in tent, preparation, identity, absence of mistake or lack of accident,” R. Vol. 1, at 105, and th e relevance was not outweighed by any prejudicial effect. The court did not err in its ruling. Even if we assume that the testimony should be trea ted as evidence of other bad acts under Fed. R. Evid. 404(b), the evidence was rele vant to explain the behavi or of the children after viewing the images on the computer and to es tablish the lascivious intent with which- 6 - the pictures of the nieces were taken, the identity of the person taking the pictures, and the absence of accident in taking th e pictures of the nieces. And we see no unfair prejudice to Defendant. Defendant also challenges the admission of testimony by her son that he saw “more pornography” on the computer. Aplt. Opening Br. at 12. But she never cites the transcript pages for the allegedly im proper testimony, so we cannot determine what she is objecting to. Although we did find references in her son’s testimony to child pornography, all the refere nces appear to be to the pictures of his sister and cousins. Defendant has not adequately pr esented any claims of error relating to “more pornography.” We affirm Defenda nt’s conviction. Entered for the Court

Harris L Hartz Circuit Judge