Child porn convictions upheld against former daycare worker

A daycare worker convicted of taking sexually explicit photos of a 4-year-old girl in his care will remain in prison after the 7th Circuit Court of Appeals declined to throw out his convictions on the grounds of impermissible evidence or jury instructions.

One day while supervising a daycare kindergarten classroom during naptime, 20-year-old Ali Al-Awadi approached a 4-year-old girl, pulled down her underwear and began taking sexually explicit photos of her with his cellphone. Al-Awadi also penetrated the girl with his fingers, which woke her up.

Al-Awadi then left the classroom when the teacher returned and deleted the photos from his phone. Meanwhile, the girl told the teacher of the incident, and news of Al-Awadi’s actions eventually reached the assistant director’s desk. When confronted by the assistant director, Al-Awadi claimed the girl had jumped on his lap and “pinched her vagina on his watch,” so he took the photos to check for injuries.

But when the girl’s mother learned of the incident, she took her to the hospital, where medical staff saw redness and swelling consistent with digital penetration. A DNA test also concluded that DNA found on the girl’s underwear was consistent with Al-Awadi’s DNA.

Law enforcement officers were eventually able to recover the deleted images from Al-Awadi’s phone and learned he had previously viewed child pornography. He was then charged with four counts of sexual exploitation of a minor through production of child pornography and four counts of attempted production of child pornography.

During the ensuing trial, the U.S. District Court for the Southern District of Indiana admitted evidence of Al-Awadi’s molestation of the girl. He was then convicted of all four counts of attempted production and three counts of production of child pornography. The district court vacated three of the attempted counts as lesser-included offenses of the completed offenses, then sentenced Al-Awadi to an aggregate term of 27 years in prison, with 15 years of supervised release.

On appeal in United States of America v. Ali Al-Awadi, 16-2643, Al-Awadi first challenged a jury instruction that called for the jury to decide whether it was “more likely than not” that he committed crimes not charged in the indictment, or, here, molesting the girl. This language, he claimed, allowed the jury to “find the intent element of the charged crimes (was) satisfied by a preponderance standard rather than by the constitutionally required standard of beyond a reasonable doubt.”

But in a Friday opinion, 7th Circuit Court of Appeals Judge Ann Claire Williams noted Al-Awadi did not object to the instruction before the district court, so he could only receive relief if the court committed plain error. No such error occurred, Williams said, because the jury instructions as a whole “correctly informed the jury of the standard of proof for the elements, which was a higher standard than for non-charged crimes, acts, or wrongs.”

The circuit court then affirmed the admission of the evidence of the molestation, with Williams writing Al-Awadi had placed his intent in taking the photos at issue, and the “molestation made Al-Awadi’s criminal intent in taking the photographs more probable… .” Similarly, testimony from multiple witnesses regarding the molestation, including testimony from his victim, was appropriate because that testimony “added different meaningful pieces to the account,” Williams wrote.

Finally, the circuit court determined there was sufficient evidence to support Al-Awadi’s convictions, as he did not dispute that the photos were of the girl’s genital area. Additionally, the jury heard evidence of the fact that Al-Awadi had taken an interest in the girl prior to the molestation and that he had a prior interest in child pornography.