United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED December 30, 2024 No. 23-50626 Lyle W. Cayce ____________ Clerk United States of America,

Plaintiff—Appellee,

versus Elroy Wilkerson,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-772-1 ______________________________ Before Wiener, Willett, and Duncan, Circuit Judges. Don R. Willett, Circuit Judge: Elroy Wilkerson was convicted by a jury of producing and possessing child pornography, violations of 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(B), for surreptitiously taking photographs and video recordings of a 14-year-old girl in various stages of undress. On appeal, Wilkerson argues that (1) the evidence was insufficient to support his convictions, and (2) the jury was improperly instructed. We disagree and AFFIRM his convictions. Case: 23-50626 Document: 71-1 Page: 2 Date Filed: 12/30/2024

No. 23-50626

I While responding to a call about a possible burglary at Wilkerson’s address, a sheriff’s deputy spoke with a 14-year-old minor who made an “outcry” about possible criminal behavior and told the deputy that she was moving out of Wilkerson’s home. The deputy relayed the information to an investigator who obtained a search warrant for Wilkerson’s residence. While executing that warrant, officers informed Wilkerson that they were investigating him for taking inappropriate photographs of minor girls. Wilkerson told the officers that he didn’t have any phones, but the officers recovered six cell phones from the residence. Wilkerson then told the officers “there’s going to be stuff in there” but claimed “the girls had taken it.” He later changed his story, admitting that “he did take some of these photos” but stating that “the girls were aware of that.” Wilkerson also asked the officers “whether these girls were sexually active.” The seized cell phones underwent forensic examination, which revealed various sexually exploitative photographs and videos of a female minor. At trial, the minor testified that she lived in Wilkerson’s home with her mother for two to four months. She described her bedroom as having a window, with curtains, that looked onto the driveway. There was also a bathroom, with its own door, connected to her bedroom. The images on Wilkerson’s phones covered three time periods. The first set of images was taken from outside the minor’s bedroom window on August 21, 2022 at around 11:30 p.m. Government Exhibit (GX) 32 is an image of the minor in her bedroom, fully nude but holding a towel over her body with her body angled slightly to the side. In GX 33, taken one minute later, the minor is nude, facing away from the camera and holding a towel. GX 34 depicts the minor nude from the waist down, wearing a pink

2 Case: 23-50626 Document: 71-1 Page: 3 Date Filed: 12/30/2024

No. 23-50626

shirt, and with a towel on her head. GX 35 shows the minor facing the camera, still wearing the pink shirt and completely nude from the waist down. The second se