State of Tennessee v. Thomas Whited

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 27, 2016 Session

STATE OF TENNESSEE v. THOMAS WHITED

Appeal by Permission from the Court of Criminal Appeals

Appeal from the Criminal Court for Knox County

No. 100430 Steven Wayne Sword, Judge

_____________________________

No. E2013-02523-SC-R11-CD – Filed November 7, 2016

_____________________________

A jury convicted the defendant on nine counts of especially aggravated sexual

exploitation of a minor, one count of attempt to commit that offense, thirteen counts of

observation without consent, and one count of attempt to commit that offense. The

convictions arose out of the defendant‘s hidden-camera videotaping of his twelve-year-

old daughter and her teenage friend while they were in various stages of undress. The

trial court sentenced the defendant to an effective sentence of twenty-two years. In a

divided opinion, the Court of Criminal Appeals affirmed his convictions and sentence. In

determining that the hidden-camera videos constituted prohibited child pornography

under the child sexual exploitation statutes, the Court of Criminal Appeals relied in part

on the six specific factors set forth in United States v. Dost, 636 F. Supp. 828 (S.D. Cal.

1986), sometimes referred to as the ―Dost factors.‖ The defendant now appeals his nine

convictions for especially aggravated sexual exploitation of a minor, and he also

challenges his sentence. We hold that, under the three child sexual exploitation statutes,

Tennessee Code Annotated sections 39-17-1003, -1004, and -1005 (2014), the content of

the prohibited material is judged by the same standard, regardless of whether the accused

produced it, distributed it, or merely possessed it. In assessing whether material is

prohibited under these statutes, we reject the use of the Dost factors as a ―test‖ or an

analytical framework. The material at issue must be evaluated based on what is depicted,

without reference to the defendant‘s subjective intent, because the Tennessee statutes on

the production of child pornography do not include the accused‘s subjective intent or

purpose of experiencing sexual arousal or gratification as an element of the offense.

Assessing the surreptitious videos taken by the defendant in the instant case, we conclude

that the videos do not depict a minor engaged in ―sexual activity,‖ defined by statute as

the lascivious exhibition of a minor‘s private body areas. For this reason, the videos are

insufficient to support the defendant‘s convictions for especially aggravated child sexual

exploitation. Accordingly, we reverse and dismiss the defendant‘s convictions for

especially aggravated sexual exploitation of a minor. In light of this holding, we remand

to the trial court for resentencing based on the convictions that were not challenged on

appeal. On remand, the State may, if it so chooses, retry the defendant on the lesser-

included offense of attempt.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Criminal Court and the

Court of Criminal Appeals Reversed;

Case Remanded to the Criminal Court

HOLLY KIRBY, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK and SHARON G. LEE, JJ., joined.

Mark E. Stephens, District Public Defender, and Jonathan P. Harwell, Assistant Public

Defender (on appeal); and Robert C. Edwards, Assistant District Public Defender (at

trial), for the appellant, Thomas Whited.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; and Andrew C. Coulam, Assistant Attorney General; Randall E. Nichols,

District Attorney General; Joanie Stallard Stewart and Philip Morton, Assistant District

Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

On a number of occasions in June, July, and August 2012, Thomas Whited

(―defendant‖) hid his cell phone in the bedroom and bathroom used by his twelve-year-

old daughter (―Daughter‖) so as to secretly video Daughter and her fourteen-year-old

friend (―Friend‖) in various stages of undress. In the bathroom, the defendant positioned

his cell phone to video Daughter while she was partly to fully nude as she prepared for

her shower and performed after-shower bathroom activities. In Daughter‘s bedroom, the

defendant hid his cell phone just before Daughter and Friend entered the bedroom in their

bikini swimsuits so as to secretly video them as they changed into dry clothes.

On August 15, 2012, the defendant‘s wife (―Wife‖) saw a cell phone on their

bedroom dresser and mistakenly thought it was hers. She picked up the phone, opened

the photo gallery, and discovered the videos the defendant had made of Daughter and

Friend. That evening she confronted the defendant, and the next day she reported his

conduct to the police. The defendant was soon arrested.

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In October 2012, a Knox County Grand Jury charged the defendant on thirty-eight

counts: (a) nine counts of especially aggravated sexual exploitation of a minor in

violation of Tennessee Code Annotated section 39-17-1005, a Class B felony;1 (b) one

count of attempted especially aggravated sexual exploitation of a minor in violation of

the same section; (c) thirteen counts of unlawful photography without consent in

violation of Tennessee Code Annotated section 39-13-605,2 a Class A misdemeanor;3 (d)

one count of attempted unlawful photography in violation of the same section; and (e)

fourteen counts of observation without consent in violation of Tennessee Code Annotated

section 39-13-607,4 a Class A misdemeanor.5

In April 2013, the State voluntarily dismissed the fourteen charges of unlawful

photography. The unlawful photography statute includes an exception for photography

of a minor when a parent has consented; the parties indicated at oral argument that the

unlawful photography charges in this case were dropped because the defendant is

1

Section 39-17-1005 makes it unlawful ―to knowingly . . . use . . . a minor . . . in the production

of . . . material that includes the minor engaging in . . . [s]exual activity.‖ Tenn. Code Ann. § 39-17-

1005(a)(1) (2014). The definition of ―sexual activity‖ involved in this case is the ―[l]ascivious exhibition

of the female breast or the genitals, buttocks, anus or pubic or rectal area of any person.‖ Tenn. Code

Ann. § 39-17-1002(8)(G) (2014).

2

Section 39-13-605 makes it unlawful to knowingly photograph a person without their consent

when that person has a reasonable expectation of privacy, ―or in the case of a minor, without the prior

effective consent of the minor‘s parent or guardian, if the photograph . . . (1) [w]ould offend or embarrass

an ordinary person if such person appeared in the photograph; and (2) [w]as taken for the purpose of

sexual arousal or gratification of the defendant.‖ Tenn. Code Ann. § 39-13-605(a) (2014).

3

Effective July 1, 2014, the crime of unlawful photography is a Class E felony if the victim is

under thirteen years old. Tenn. Code Ann. § 39-13-605(d)(2)(B) (Supp. 2016). The amendment is not

applicable in this case.

4

Section 39-13-607 makes it unlawful ―for a person to knowingly spy upon, observe or otherwise

view an individual, when the individual is in a place where there is a reasonable expectation of privacy,

without the prior effective consent of the individual, if the viewing . . . (1) [w]ould offend or embarrass an

ordinary person if the person knew the person was being viewed; and (2) [w]as for the purpose of sexual

arousal or gratification of the defendant.‖ Tenn. Code Ann. § 39-13-607(a) (2014).

5

Effective July 1, 2014, the crime of observation without consent is a Class E felony if the victim

is under thirteen years old. Tenn. Code Ann. § 39-13-607(d)(2) (Supp. 2016). The amendment is not

applicable in this case.

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Daughter‘s parent.6 See Tenn. Code Ann. § 39-13-605(a). This left for trial a total of

twenty-four counts—nine counts of especially aggravated sexual exploitation, one count

of attempted especially aggravated sexual exploitation, and fourteen counts of

observation without consent.

The two-day jury trial began on July 29, 2013. The jurors heard testimony from

Daughter, Friend, and Wife.

At the time of trial, Daughter was thirteen years old and lived with her mother and

her twin brother. She attended a neighborhood middle school and was involved in

orchestra, soccer, track, and cross country.

Daughter understood that she was testifying in court because her father had

videotaped her without her knowledge. Before the videotaping, Daughter said, she and

the defendant had a good relationship. After the videos were discovered, Daughter had

only occasional contact with the defendant, and he sent her one text message telling her

that he was sorry for secretly videotaping her. By the time of trial, she had no

relationship with him at all; Daughter commented that the defendant had ―wasted‖ their

relationship by taking the surreptitious videos.

In her testimony, Daughter confirmed that she did not give the defendant

permission to videotape her. She had not seen the videos, but she understood that they

were taken while she was naked. Daughter testified that she never wanted to see the

videos and that she did not want other people to see them. Daughter had not discussed

the videos with the defendant.

At the time Friend testified, she was fifteen years old and attended a neighborhood

high school. She said that she and Daughter had been friends their entire lives and had

always lived close to each other. Friend described them as ―inseparable‖; she and

Daughter often spent the night at each other‘s homes and swam, cooked, and played

soccer together. Prior to the videotaping incident, the defendant was sometimes present

when Friend was at Daughter‘s home. Friend said that she occasionally went with

Daughter and the defendant to the local flea market where the defendant sometimes

6

Neither party addressed the reason for dropping the unlawful photography charges as to the

videos that included Daughter‘s Friend.

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worked. She said that Wife was like another mother to her and, before the videos were

discovered, the defendant had been like another father to her.

Friend knew that she was testifying at trial because the defendant had videotaped

her without her permission. She understood that the defendant had hidden a cell phone in

Daughter‘s bedroom on occasions when she and Daughter were in there changing

clothes. She confirmed that she never gave the defendant permission to videotape her.

Asked how learning of the videos had made her feel, Friend responded, ―Like crap.‖

Friend felt ―betrayed‖ by the defendant. She emphasized, ―I never want to see him

again.‖

Wife testified as well. As background, Wife testified that she and the defendant

married in 1997. During the course of their marriage, the defendant had worked as a

security officer for a hospital, had worked for KB Toys and other retail stores, and had

sometimes worked as a certified nursing assistant. He also owned a business that sold

vintage toys. The defendant was a member of the Army National Guard, trained as a

combat medic; he was deployed to Iraq in 2010. Wife had worked for an orthopedic

surgery center for some time, and she was still working there at the time of trial.

For the most part, Wife said, they had a good marriage. After an episode in which

Wife was unfaithful in 2009, they discussed divorce, but she felt that the marriage had

recovered and that everything was fine until she found the hidden-camera videos.

Wife testified about the night she found the videos on the defendant‘s cell phone.

She said that, around 10:30 p.m. on the evening of August 15, 2012, she noticed a cell

phone on the bedroom dresser. It was an old phone, one that looked like her own cell

phone. Believing it to be hers, Wife picked it up to charge it for the night. When the

phone did not show her screensaver, she opened the photo gallery and noticed some

pictures that she could not see very well. Eventually she realized that they were not

photos but videos, and they showed the defendant setting up his cell phone to take videos

of Daughter.

Once Wife realized what had been going on, she looked at the first video and the

last video to try to determine how long the defendant had been videotaping Daughter.

The children were home that evening, so Wife waited for the defendant to come back into

their bedroom to talk to him about the videos she had discovered. When she asked the

defendant about them, he gave her no explanation.

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Wife told the defendant to leave the home. The defendant responded, ―I‘m sorry.‖

He told Wife that both of his parents had molested him as a child; Wife had never heard

that before. Wife kept the cell phone with the videos, and the defendant left. He first

went out to his car and sat there for a bit. Finally, Wife called the defendant‘s cell phone

(a different one) and asked him to leave so that she could go to bed.

The next day, Wife testified, the defendant came back to their house to take

Daughter to school; her older child rode to school with them. That afternoon, Wife called

the police from her work and reported the videos. In response, police officers came to

Wife‘s workplace, where she gave them the cell phone that contained the videos. Later,

the police came to their house and retrieved the home computer, a laptop computer, a

video recorder, and some other cell phones.

Wife testified that she could tell from watching the videos that they had been

filmed in Daughter‘s bedroom and in their guest bathroom, which Daughter used. For the

trial, Wife made a video of herself going through the house, and she used the video to

demonstrate the location of everything depicted in the hidden-camera videos taken by the

defendant. Wife‘s video showed the master bedroom and the basket where all their old

phones were kept, which is where she found the phone containing the defendant‘s videos.

She showed where she believed the defendant hid his cell phone video camera in the

bedroom and bathroom. Wife said that, when she discovered the defendant‘s hidden-

camera videos, she recalled that she had recently noticed that the towels in the bathroom

basket were disheveled and that something in the basket had been moved. She noted that

the shower/bathtub in the bathroom used by Daughter is directly in front of the vanity and

that the shower curtain is opaque.

Wife described Daughter as an outgoing child, sweet, intelligent, and well-

behaved. She said that Friend came to their house often and spent the night; she and

Daughter listened to music, took selfie pictures, and generally acted silly together.

On cross-examination, Wife testified that, when the defendant returned from his

deployment in Iraq, he sporadically took testosterone treatments. At the time, the

defendant was having trouble performing in the marriage, so Wife encouraged the

treatments. Wife had been unhappy with the defendant‘s income and wanted him to find

a more regular job.

The jury also heard testimony from James Smithhart, a cyber forensics

investigator with the Knox County Sheriff‘s Office. Mr. Smithhart testified as a fact

witness and also as an expert in digital forensics in the sexual exploitation of minors. He,

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along with another detective, met with Wife at her workplace the day after she discovered

the videos on the defendant‘s cell phone. Wife gave consent for Mr. Smithhart to take

the cell phone and extract the videos that the defendant had taken of the two victims.

When Mr. Smithhart processed the defendant‘s cell phone, he discovered eleven

videos that matched Wife‘s allegations. He said that the videos were created on various

dates starting on June 21, 2012, and ending on August 10, 2012. Mr. Smithhart said that

the videos had been deliberately moved out of the cell phone‘s default video folder and

into an images folder; the user must take an extra step to do this. Mr. Smithhart put all of

the videos on separate DVDs for trial; they were marked as Exhibits 16 through 26. For

expediency, he ―fast-forwarded‖ portions of the videos that showed no activity. Mr.

Smithhart was able to determine the last date on which each video was accessed, but most

of them had last been accessed on August 15 and 16, after Wife discovered them. Two of

the videos not accessed by Wife had last been accessed on July 24, 2012. On cross-

examination, Mr. Smithhart testified that law enforcement seized all of the defendant‘s

other digital devices, including a laptop computer, a desktop computer, and other cell

phones, and he found no inappropriate videos or images on those devices.

All eleven videos were played for the jury. Nine of them were proffered to

support the nine charges of especially aggravated sexual exploitation.

After the State rested, the trial court denied the defendant‘s motion for a judgment

of acquittal. The defendant elected not to testify. He presented no evidence at trial.

In the jury instructions, the trial court read the jury the statutory language for the

offenses charged. The court then explained to the jury that, to find the defendant guilty

of especially aggravated sexual exploitation, the State had the burden to prove that (1) the

defendant used a minor to participate in the production of material which includes a

minor engaging in sexual activity and (2) that the defendant acted knowingly. See Tenn.

Code Ann. § 39-17-1005. The trial judge read all of the statutory definitions of ―sexual

activity,‖ including the applicable definition, which is the ―lascivious exhibition of the

female breast or the genitals, buttocks, anus or pubic or rectal area of any person.‖ Tenn.

Code Ann. § 39-17-1002(8)(G) (2014). Regarding the meaning of ―lascivious

exhibition,‖ the trial court instructed the jury: ―‗Lascivious‘ means tending to excite lust;

lewd; indecent.‖ See T.P.I.–Crim. 34.03.

The defendant requested two additional jury instructions to further explain the

meaning of ―lascivious exhibition.‖ He first requested that the jury be instructed on the

so-called Dost factors set forth in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal.

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1986), aff’d sub nom. United States v. Weigand, 812 F.2d 1239 (9th Cir. 1987). The

requested instruction listed the six factors to consider in determining whether the videos

made by the defendant were lascivious, and also indicated that the sixth factor was

applied as to the ―average viewer‖ rather than the subjective response of the defendant.7

The second jury instruction requested by the defendant stated: ―Photography of an

undressed minor by itself is not sufficient to sustain a conviction for this offense.‖

The trial court declined to give either of the requested jury instructions. As to the

first one, the trial court reasoned that Tennessee‘s legislature has not adopted the Dost

factors in the child sexual exploitation statutes or otherwise, so instructing the jury on the

Dost factors could be viewed as imposing additional non-statutory elements to the

offense. The trial court rejected the second jury instruction based on its conclusion that

the pattern jury instruction defined ―lascivious‖ in a manner that was sufficient to inform

the jury about the proof required to convict for the offense.

7

The requested instruction read:

To find that the content depicted in the video was ―lascivious,‖ some appropriate factors

to consider are:

(1) Whether the focal point of the visual depiction is on the child‘s genitals 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; and

(6) Whether the visual depiction is intended or designed to elicit a sexual response in the

viewer.

The requested instruction added: ―Factor (6) should be applied when the visual depiction is intended or

designed to elicit a sexual response in the average viewer, rather than looking to the subjective response

of the defendant.‖

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The jury returned a verdict of guilty on all twenty-four counts—nine counts of

especially aggravated sexual exploitation of a minor (section 39-17-1005), one count of

attempt to commit that crime, thirteen counts of observation without consent (section 39-

13-607), and one count of attempt to commit that crime.8 The trial judge approved the

verdict.

At the sentencing hearing, the two victims and Wife read impact statements.

Defense counsel noted for the record that the trial court did not permit cross-examination

of these witnesses. After that, the trial court sentenced the defendant to twelve years of

incarceration for the conviction on Count 1 (especially aggravated sexual exploitation)

and ten years on Count 10 (especially aggravated sexual exploitation), to run

consecutively, for a total of twenty-two years. The trial court sentenced the defendant to

ten years for each of the seven remaining sexual exploitation convictions and six years on

one count of attempt to commit that crime, all to run concurrent to the sentence in Count

1. In addition, the trial court sentenced the defendant to eleven months and twenty-nine

days for each of the observation without consent convictions and six months on the single

count of attempt to commit that crime, all to run concurrently to the sentence for Count 1.

Thus, the trial court sentenced the defendant to a total effective sentence of twenty-two

years as a Range I, Standard Offender, to be served at 100%.

The defendant filed a timely motion for a new trial and an amended motion for a

new trial. After a hearing, the trial court denied the defendant‘s motion. The defendant

appealed his nine convictions for especially aggravated sexual exploitation, and he also

appealed his sentence.

A majority of the Court of Criminal Appeals affirmed the trial court in all respects.

State v. Whited, No. E2013-02523-CCA-R3-CD, 2015 WL 2097843, at *13 (Tenn. Crim.

App. May 4, 2015). To evaluate the sufficiency of the evidence, the court referred to the

six Dost factors. Specifically, it applied the sixth Dost factor subjectively, asking

whether the depiction in the videos was intended to elicit a sexual response in the

defendant or a like-minded pedophile.9 Id. at *7. The majority answered this inquiry in

8

Count 17 was originally charged as observation without consent, but it was submitted to the jury

as a charge of attempt.

9

The sixth Dost factor is ―whether the visual depiction is intended or designed to elicit a sexual

response in the viewer.‖ Dost, 636 F. Supp. at 832.

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the affirmative. It evaluated the other Dost factors as well and held that the evidence was

sufficient for the jury to find that the videos depicted a minor engaged in the lascivious

exhibition of her private body areas.10 Id. at *8. Consequently, the majority affirmed the

defendant‘s nine convictions for especially aggravated sexual exploitation of a minor. Id.

at *13.

The appellate court found no error in the trial court‘s rejection of the defendant‘s

two jury instruction requests. Id. at *9-10. It found that the Dost factors were relevant

but warned that they ―should be applied cautiously‖ because they are not definitional, not

comprehensive, and not applicable in every situation.11 Id. at *9 (citing State v. Whitlock,

No. E2010-00602-CCA-R3-CD, 2011 WL 2184966, at *6 (Tenn. Crim. App. June 6,

2011)). The court upheld the trial court‘s refusal to instruct the jury that ―[p]hotography

of a[n] undressed minor by itself is not sufficient to sustain a conviction‖ because it

agreed with the trial court that the definitions of ―sexual activity‖ and ―lascivious‖ given

to the jurors were sufficient to instruct them on the law. Id. at *10.

As to sentencing, the appellate court held that the defendant waived his argument

that he was deprived of the opportunity to cross-examine the witnesses who testified at

sentencing and that, in any event, any error on this issue would have been harmless. Id.

at *11. It also upheld the trial court‘s imposition of two consecutive sentences. Id. at

*12. Thus, a majority of the Court of Criminal Appeals affirmed the judgment of the trial

court in its entirety. Id. at *13.

Judge Camille McMullen filed a dissent in which she opined that the evidence was

insufficient to support the convictions for especially aggravated sexual exploitation.

Using a chart form, the dissent dissected the videos and concluded that ―there is simply

nothing lascivious or lewd about the conduct depicted in the videos.‖ Id. at *15

(McMullen, J., dissenting). The dissent opposed a subjective application of the sixth

Dost factor. Under the subjective standard utilized by the majority, the dissent posited,

10

The Court of Criminal Appeals found that the first Dost factor, whether the focal point of the

visual depiction was on the child‘s genitals or pubic area, was met based on the defendant‘s placement

and position of the camera. Whited, 2015 WL 2097843, at *7-8.

11

The appellate court stated: ―Because the factors have proved so difficult to apply and function

as a ‗starting point‘ for determining whether an image is lascivious, the factors are not a mandatory facet

of jury instructions for the crime of especially aggravated sexual exploitation of a minor.‖ Whited, 2015

WL 2097843, at *9.

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any ―photograph taken by a pedophile‖ would be deemed sufficient to support a

conviction for ―the offense of especially aggravated sexual exploitation of a minor,

regardless of the innocuous character of the photograph.‖ Id. at *16. The dissent

concluded that the evidence showed that the defendant was attempting to create a

lascivious video, even though he failed to do so. Consequently, the dissent would have

reduced the convictions for especially aggravated sexual exploitation of a minor to

attempts to commit that crime.12 Id. (citing United States v. Vanderwal, 533 Fed. Appx.

498 (6th Cir. 2013)).

We granted the defendant‘s application for permission to appeal.

ISSUES AND STANDARD OF REVIEW

In this appeal, the defendant raises the same issues he raised in the Court of

Criminal Appeals, challenging his nine convictions for especially aggravated sexual

exploitation. The defendant argues: (1) the trial court erred in refusing to instruct the

jury as he requested; (2) the evidence was insufficient to convict him of especially

aggravated sexual exploitation when no sexual activity was depicted in the videos; (3) the

Dost factors, applied objectively, weigh against a finding of ―lasciviousness‖ in the

videos; (4) the trial court erred in refusing to permit him to cross-examine the witnesses

who testified at the sentencing hearing; and (5) the trial court erred in imposing

consecutive sentences.13

In our view, the pivotal issues involve (1) the appropriate standard for determining

whether a given depiction is a ―[l]ascivious exhibition‖ of the minor‘s private body areas

within the meaning of Tennessee Code Annotated section 39-17-1002(8)(G) and

Tennessee‘s child sexual exploitation statutes and (2) the application of that standard to

12

The dissent also would have held that the convictions on Count 7 (attempt) and Count 10

should be dismissed because the videos supporting those charges depicted no nudity. Whited, 2015 WL

2097843, at *16.

13

The defendant also argues that the use of the term ―lascivious exhibition‖ as one of the

definitions of ―sexual activity‖ is unconstitutionally vague. This argument is waived for failure to raise it

prior to this appeal. See Ellithorpe v. Weismark, 479 S.W.3d 818, 829-30 (Tenn. 2015).

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the evidence in this case to determine whether the evidence was sufficient for the jury to

find that the videos produced by the defendant were prohibited under the statutes.

Of course, the general standard for appellate review of the sufficiency of the

evidence ―is ‗whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.‘‖ State v. Bell, 480 S.W.3d 486, 516 (Tenn. 2015) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Beyond that, however, the standard for

appellate review is informed by whether the court is reviewing a finding of fact or a

conclusion of law.

This Court has not addressed whether the determination regarding a ―lascivious

exhibition‖ of a child‘s private body areas is a finding of fact or a conclusion of law.

Looking to persuasive authority from other jurisdictions, we find that courts disagree

about whether a lasciviousness determination is a factual finding or a legal conclusion.

Federal decisions on the question of lasciviousness are useful for comparison

because federal law is similar to Tennessee law in the area of child sexual exploitation.

The definition of ―sexual activity‖ in Tennessee Code Annotated section 39-17-

1002(8)(G) and the definition of ―sexually explicit conduct‖ in 18 U.S.C. §

2256(2)(A)(v) both include the ―lascivious exhibition‖ of the genitals or pubic area.14

Therefore, we look particularly to federal caselaw for guidance in ―lascivious exhibition‖

cases. See Robinson v. Fulliton, 140 S.W.3d 312, 318 (Tenn. Ct. App. 2003) (holding

that ―it is appropriate to consider the reasoning of federal courts that have interpreted a

comparable federal statute‖).

Even federal decisions, however, lack uniformity on whether appellate review of a

lasciviousness determination is the review of a factual finding, a legal conclusion, or a

mixed question of fact and law. United States v. Steen, 634 F.3d 822, 825 (5th Cir.

2011). In Steen, the Fifth Circuit Court of Appeals described the split among federal

courts on the standard of review for lascivious exhibition:

14

Tennessee‘s definition of ―lascivious exhibition‖ is somewhat broader than the federal

definition because, unlike the federal statute, it includes exhibition of ―the female breast‖ and a person‘s

―buttocks, anus or . . . rectal area.‖ Tenn. Code Ann. § 39-17-1002(8)(G).

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The standard of review for lasciviousness determinations requires

additional explanation, as our sister courts of appeal are split on the issue.

The Third, Eighth, and Tenth Circuits have held that the decision of

whether an image is lascivious requires de novo review because it involves

a legal standard. The Ninth Circuit calls for clear error review, noting that

a district court‘s findings of lasciviousness should be upheld unless the

appellate court has a ―definite and firm conviction that a mistake has been

committed.‖

Id. (footnotes omitted). While acknowledging that some appellate courts consider their

task as the review of a question of law, the Steen court followed other Fifth Circuit

precedent in applying a ―clear error‖ standard of review to assess the sufficiency of the

evidence, at least insofar as the child sexual exploitation conviction ―indicates a factual

finding that the image was a lascivious exhibition of the genitals.‖ Id. at 826 & n.11

(citing United States v. Boudreau, 250 F.3d 279, 282 (5th Cir. 2001); United States v.

Carroll, 190 F.3d 290, 293 (5th Cir. 1999), vacated in part, reinstated in relevant part by

227 F.3d 486, 488 (5th Cir. 2000) (per curiam)); accord United States v. Schuster, 706

F.3d 800, 806 (7th Cir. 2013); United States v. Overton, 573 F.3d 679, 688 (9th Cir.

2009). But see United States v. Amirault, 173 F.3d 28, 33 (1st Cir. 1999) (reviewing the

issue as a matter of law de novo ―to ensure that the First Amendment has not been

improperly infringed‖); United States v. Knox, 32 F.3d 733, 744 (3d Cir. 1994) (―Because

the meaning of the statutory phrase ‗lascivious exhibition‘ . . . poses a pure question of

law, our review is plenary.‖).

Other federal courts have treated review of a finding of lascivious exhibition as

appellate review of a mixed question of fact and law. See United States v. Helton, 302

Fed. Appx. 842, 846 (10th Cir. 2008). The Eighth Circuit Court of Appeals explained:

―[T]he question whether materials depict ‗lascivious exhibition of the genitals,‘ an

element of the crime, is for the finder of fact,‖ but ―the meaning of ‗lascivious exhibition

of the genitals‘ is an issue of law.‖ United States v. Rayl, 270 F.3d 709, 714 (8th Cir.

2001) (citing United States v. O’Malley, 854 F.2d 1085, 1087 (8th Cir. 1988); United

States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999)); see also Weigand, 812 F.2d at 1244

(noting that ―[t]he question of whether the pictures fall within the statutory definition is a

question of fact as to which we must uphold the district court‘s findings unless clearly

erroneous,‖ but that ―[t]he definition of ‗lascivious‘ is a matter of law which we review

de novo‖).

- 13 -

We agree with the Eighth Circuit that appellate review of a lasciviousness

determination in child sexual exploitation cases is review of a mixed question of fact and

law. The appellate court must review the finding by the trier of fact that the depiction is a

lascivious exhibition, including underlying factual issues such as the extent to which the

minor appears nude or whether the minor appears to be portrayed in a sexually suggestive

manner. See Rayl, 270 F.3d at 714. In addition, looking at the evidence in a light most

favorable to the verdict, the appellate court must determine whether the depiction is

legally sufficient to constitute a ―lascivious exhibition‖ within the meaning of the statute.

The latter determination is a question of law subject to plenary review. Id.

In the instant case, the crux of the defendant‘s argument is that the depictions in

the videos are legally insufficient to support a finding that the minors were engaged in a

―lascivious exhibition‖ within the meaning of the Tennessee statute. Accordingly, we

review it as primarily an issue of law, subject to de novo review. To the extent, however,

that this issue involves disputed facts, we give the State the strongest legitimate view of

the evidence. Our standard of review for other issues on appeal will be mentioned in the

discussion of those issues.

ANALYSIS

The issues presented in this appeal require interpretation of Tennessee statutes on

the sexual exploitation of children, specifically the Tennessee Protection of Children

Against Sexual Exploitation Act of 1990, Tennessee Code Annotated sections 39-17-

1001 to -1008 (―the Act‖). The Act criminalizes, among other things, the possession,

distribution, and production of child pornography. Tenn. Code Ann. §§ 39-17-1003 to -

1005; see also State v. Sprunger, 458 S.W.3d 482, 485 n.4 (Tenn. 2015). Basic

possession is charged as ―sexual exploitation,‖ a Class D felony:

(a) It is unlawful for any person to knowingly possess material that includes

a minor engaged in:

(1) Sexual activity; or

(2) Simulated sexual activity that is patently offensive.

Tenn. Code Ann. § 39-17-1003(a). Distribution (or possession with intent to distribute) is

charged as ―aggravated sexual exploitation,‖ a Class C felony:

- 14 -

(a)(1) It is unlawful for a person to knowingly promote, sell, distribute,

transport, purchase or exchange material, or possess with the intent to

promote, sell, distribute, transport, purchase or exchange material, that

includes a minor engaged in:

(A) Sexual activity; or

(B) Simulated sexual activity that is patently offensive.

Id. § 39-17-1004(a)(1). The offense at issue in this case is the production of child

pornography, charged as ―especially aggravated sexual exploitation.‖ This is the most

culpable of the three, a Class B felony:

(a) It is unlawful for a person to knowingly promote, employ, use, assist,

transport or permit a minor to participate in the performance of, or in the

production of, acts or material that includes the minor engaging in:

(1) Sexual activity; or

(2) Simulated sexual activity that is patently offensive.

Id. § 39-17-1005(a).

As can be seen, the three statutes quoted above make it unlawful to possess,

distribute, or produce the same type of material, namely, ―material that includes a minor

engaged in . . . [s]exual activity.‖ This ―material‖ is, in common parlance, child

pornography.15 See, e.g., Sprunger, 458 S.W.3d at 486 (characterizing an offense under

section 39-17-1004 as ―selling and distributing child pornography‖); State v. Pickett, 211

S.W.3d 696, 699 (Tenn. 2007) (characterizing an offense under section 39-17-1003 as

―the possession of child pornography‖). The term ―sexual activity‖ is defined in the Act:

(8) ―Sexual activity‖ means any of the following acts:

15

The term ―child pornography‖ is not used in the Act, but the three statutes are commonly

referred to as child pornography statutes.

- 15 -

(A) Vaginal, anal or oral intercourse, whether done with another

person or an animal;

(B) Masturbation, whether done alone or with another human or an

animal;

(C) Patently offensive, as determined by contemporary community

standards, physical contact with or touching of a person‘s clothed or

unclothed genitals, pubic area, buttocks or breasts in an act of apparent

sexual stimulation or sexual abuse;

(D) Sadomasochistic abuse, including flagellation, torture, physical

restraint, domination or subordination by or upon a person for the purpose

of sexual gratification of any person;

(E) The insertion of any part of a person‘s body or of any object into

another person‘s anus or vagina, except when done as part of a recognized

medical procedure by a licensed professional;

(F) Patently offensive, as determined by contemporary community

standards, conduct, representations, depictions or descriptions of excretory

functions; or

(G) Lascivious exhibition of the female breast or the genitals,

buttocks, anus or pubic or rectal area of any person.

Tenn. Code Ann. § 39-17-1002(8). It is undisputed that the videos in question do not

depict any of the types of sexual activity listed in (A) through (F) of the above definition.

In this case, the focus is on subsection (G), whether the subject videos depict minors

engaged in the ―[l]ascivious exhibition of the female breast or the genitals, buttocks, anus

or pubic or rectal area.‖ Id. § 39-17-1002(8)(G).

As background, we will briefly discuss constitutional considerations regarding

child pornography, cases discussing the meaning of ―lascivious exhibition‖ in the context

of child pornography, and whether the Dost factors should be used as a test to determine

whether particular material is prohibited under Tennessee‘s sexual exploitation statutes.

We will then consider whether the videos at issue in this case include the ―lascivious

- 16 -

exhibition‖ of the minors‘ private body areas and thus are sufficient to support a

conviction for especially aggravated sexual exploitation of a minor.

A. Child Pornography—Unprotected Speech

First we look at constitutional constraints on the states‘ ability to regulate child

pornography. In Miller v. California, the United States Supreme Court held that state

statutes regulating obscene material must be limited to ―works which, taken as a whole,

appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive

way, and which, taken as a whole, do not have serious literary, artistic, political, or

scientific value.‖ Miller, 413 U.S. 15, 24 (1973). The Court emphasized that adult

pornography, which is protected speech, is unprotected if it is obscene: ―This much has

been categorically settled by the Court, that obscene material is unprotected by the First

Amendment.‖ Id. at 23; see also State v. Marshall, 859 S.W.2d 289, 294 (Tenn. 1993)

(concluding that obscenity has no protection under the Tennessee Constitution). Because

obscenity is unprotected speech, states may ―regulate all the hard-core pornography

[they] constitutionally [can].‖ Smith v. United States, 431 U.S. 291, 303 (1977); see also

Miller, 413 U.S. at 25 (―We emphasize that it is not our function to propose regulatory

schemes for the States. That must await their concrete legislative efforts.‖).

Almost ten years later, in New York v. Ferber, 458 U.S. 747 (1982), the Court

addressed whether child pornography, even that which is not obscene under the Miller

definition, is protected by the First Amendment. The defendant in Ferber, a bookstore

proprietor, was convicted of knowingly promoting a sexual performance by a child under

the age of sixteen by distributing material depicting such a performance. Ferber, 458

U.S. at 751–52. The defendant argued that the New York statute under which he was

convicted was unconstitutional because it did not require the prohibited material to be

obscene in order to constitute an offense. The Court of Appeals of New York agreed; it

held the statute unconstitutional because, among other things, it permitted conviction for

promoting material ―traditionally entitled to constitutional protection from government

interference under the First Amendment.‖ Id. at 752 (quoting People v. Ferber, 422

N.E.2d 523, 525 (N.Y. 1981)).

On appeal, the Supreme Court reversed. The Ferber Court deemed the Miller

definition of obscenity inadequate to address child pornography because it ―does not

reflect the State‘s particular and more compelling interest in prosecuting those who

promote the sexual exploitation of children.‖ Id. at 761. The Court held for the first time

- 17 -

that child pornography is ―a category of material the production and distribution of which

is not entitled to First Amendment protection.‖ Id. at 765. Consequently, it held, ―the

States are entitled to greater leeway in the regulation of pornographic depictions of

children.‖ Id. at 756. The Court based its decision in part on the states‘ compelling

interest in safeguarding the physical and psychological well-being of children: ―The

prevention of sexual exploitation and abuse of children constitutes a government

objective of surpassing importance.‖ Id. at 757. The Court observed that the distribution

of materials depicting sexual activity by children is ―intrinsically related to the sexual

abuse of children.‖ Id. at 759. States can help combat the sexual exploitation of children

that is inherent in the making of child pornography, the Court said, by prohibiting the

illegal sale and distribution of such materials. It found that classifying child pornography

as unprotected by the First Amendment was consistent with Supreme Court precedent.

Id. at 763-64.

The Ferber Court cautioned, however, that there are ―limits on the category of

child pornography.‖ Id. at 764. The Court explained, ―As with all legislation in this

sensitive area, the conduct to be prohibited must be adequately defined by the applicable

state law, as written or authoritatively construed.‖ Id. It noted that ―[t]he category of

‗sexual conduct‘ proscribed must also be suitably limited and described.‖ Id. States, the

Court said, must limit the offense to works that visually depict sexual conduct by children

below a specified age, and must include scienter on the part of the defendant as an

element of the offense. Id. at 764-65. Contrasting the Miller definition of obscenity, the

Ferber Court said that, for child pornography, ―[a] trier of fact need not find that the

material appeals to the prurient interest of the average person; it is not required that

sexual conduct portrayed be done so in a patently offensive manner; and the material at

issue need not be considered as a whole.‖ Id. at 764.

Against this backdrop, we consider cases that discuss sexual activity defined as

―lascivious exhibition‖ of private body areas in the context of child pornography statutes.

B. Lascivious Exhibition and Dost

As noted above, Tennessee Code Annotated section 39-17-1005(a)(1) makes it

unlawful to produce child pornography, i.e., ―material that includes [a] minor engaging in

. . . [s]exual activity.‖ In pertinent part, ―sexual activity‖ is defined as ―[l]ascivious

exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of

any person.‖ Tenn. Code Ann. § 39-17-1002(8)(G). The term ―lascivious exhibition‖ is

- 18 -

not defined in the statute, so we consider its meaning and how to determine whether

given materials depict a ―lascivious exhibition.‖16

Our Court of Criminal Appeals has pointed out that ―Black‘s Law Dictionary

defines lascivious as ‗tending to excite lust; lewd; indecent; obscene.‘‖ Whitlock, 2011

WL 2184966, at *3 (quoting Black‘s Law Dictionary 897 (8th ed. 2004)). ―Lewd‖ and

lascivious‖ are synonyms; both have a sexual connotation.17 See United States v.

Kemmerling, 285 F.3d 644, 646 (8th Cir. 2002); Wiegand, 812 F.2d at 1244; Schmitt v.

State, 590 So. 2d 404, 410 (Fla. 1991); State v. Kipf, 450 N.W.2d 397, 404 (Neb. 1990).

While defining the term ―lascivious‖ in the abstract is fairly straightforward,

determining whether certain material depicts a minor engaging in the lascivious

exhibition of their private body areas within the meaning of the sexual exploitation

statutes is another matter. It is ―an intensely fact-bound question.‖ Schuster, 706 F.3d at

806; see Dost, 636 F. Supp. at 832 (noting that lasciviousness must be determined on a

case-by-case basis).

Important to this case, it is generally accepted that mere nudity, without more, is

insufficient to establish a lascivious exhibition of private body areas. See United States v.

Wallenfang, 568 F.3d 649, 657 (8th Cir. 2009); Kemmerling, 285 F.3d at 645-46; United

States v. Grimes, 244 F.3d 375, 381-82 (5th Cir. 2001); Horn, 187 F.3d at 789; Amirault,

173 F.3d at 33; Knox, 32 F.3d at 750; United States v. Arvin, 900 F.2d 1385, 1391 (9th

Cir. 1990). The reasoning often proffered is that, if ―lascivious‖ qualifies the term

―exhibition‖ in the child sexual exploitation statute, mere nudity cannot be enough

because such an interpretation would render the term ―lascivious‖ superfluous. See

United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989); see also Grimes, 244 F.3d at

16

See United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008) (―The term ‗lascivious‘ is not

self-defining.‖); United States v. Villard, 885 F.2d 117, 121 (3d Cir. 1989) (―Whatever the exact

parameters of ‗lascivious exhibition,‘ we find it less readily discern[i]ble than the other, more concrete

types of sexually explicit conduct listed in [the federal sexual exploitation statute].‖).

17

While ―lewd‖ and ―lascivious‖ are considered synonymous, the term ―lewd‖ is more antiquated

than ―lascivious.‖ Years ago, ―lewdness‖ itself was a common-law crime in Tennessee, defined as ―any

gross indecency which is sufficiently open and notorious as to tend to corrupt the morals of the

community.‖ Abbott v. State, 43 S.W.2d 211, 212 (Tenn. 1931) (quoting 36 Corpus Juris, 1035 and

affirming conviction when the defendant placed a wrapped gift ―suggestive of sexual intercourse, upon a

Christmas tree, addressed to a young woman‖).

- 19 -

381-82 (noting that to find mere nudity sufficient for child pornography would ―outlaw

many works of art or family photos of, say, naked children in bathtubs‖); Horn, 187 F.3d

at 789 (―Nudity alone does not fit this description; there must be an ‗exhibition‘ of the

genital area and this exhibition must be ‗lascivious.‘‖); Knox, 32 F.3d at 750 (―Nudity

must be coupled with other circumstances that make the visual depiction lascivious or

sexually provocative in order to fall within the parameters of the statute.‖).

Moreover, criminalizing conduct that involves a depiction of ―mere nudity‖ may

have constitutional implications. See Osborne v. Ohio, 495 U.S. 103, 112 (1990) (―We

have stated that depictions of nudity, without more, constitute protected expression.‖);

Ferber, 458 U.S. at 773 (hypothesizing that protected depictions of child nudity could be

found in materials ―ranging from medical textbooks to pictorials in the National

Geographic‖); Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975) (―Clearly all

nudity cannot be deemed obscene even as to minors.‖); United States v. Scott Johnson,

639 F.3d 433, 439 (8th Cir. 2011) (describing ―mere nudity‖ as ―innocent family photos,

clinical depictions, or works of art‖). Therefore, when the subject materials depict a child

in the nude, the task for a trier of fact is to determine whether the depiction is of ―mere

nudity‖ or whether it is of ―sexual activity,‖ i.e., a ―lascivious exhibition.‖

To assist in determining whether the videos in this case constitute material that

includes a minor engaged in a lascivious exhibition, the Court of Criminal Appeals below

referred to the six factors enumerated in Dost. Many other courts addressing sexual

exploitation of children have discussed the so-called ―Dost factors‖ and have come to

differing conclusions about whether the factors should be considered and, if so, the extent

to which they should be considered. Accordingly, a review of Dost is in order.

In Dost, the two adult male defendants took several photographs of a fourteen-

year-old girl and one photograph of a ten-year-old girl in the nude; the children posed in

various ways as directed by the defendants. Many of the photographs of the fourteen-

year-old depicted her in ―various supine and sitting poses,‖ while the single photograph

of the ten-year-old showed her sitting nude on the beach. Dost, 636 F. Supp. at 830. The

defendants were charged with using minors to engage in sexually explicit conduct for the

purpose of producing visual depictions of such conduct in violation of 18 U.S.C. section

2251 and with the knowing receipt or distribution of visual depictions of minors engaging

- 20 -

in sexually explicit conduct in violation of 18 U.S.C. section 2252.18 Id. at 829-30. At

issue was whether the photos depicted the minors engaging in ―sexually explicit conduct‖

within the meaning of the federal child pornography statute, which defines the phrase as

the ―lascivious exhibition of the genitals or pubic area of any person.‖ Id. at 830 (quoting

18 U.S.C. § 2255(2)(E), now codified at § 2256(2)(A)(v)).

The Dost court stated, ―[T]he ‗lascivious exhibition‘ determination must be made

on a case-by-case basis using general principles as guides for analysis.‖ Id. at 832. The

court then offered ―general principles‖ in the form of enumerated factors to be weighed:

[T]his Court feels that, in determining whether a visual depiction of a minor

constitutes a ―lascivious exhibition of the genitals or pubic area‖ under §

2255(2)(E) [now § 2256(2)(A)(v)], the trier of fact should look to the

following factors, among any others that may be relevant in the particular

case:

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.

18

The co-defendants were also charged with conspiracy to commit those crimes. Dost, 636 F.

Supp. at 830.

- 21 -

Id. The Dost court added that ―a visual depiction need not involve all of these factors to

be a ‗lascivious exhibition of the genitals or pubic area.‘‖ Id. Rather, the ultimate

determination of whether the material depicts ―lascivious exhibition‖ must ―be made

based on the overall content of the visual depiction, taking into account the age of the

minor.‖ Id. The Dost court then used these ―general principles‖ to assess the

lasciviousness of the photographs at issue. Id. at 832. It concluded that all of the

photographs depicted a minor engaged in the lascivious exhibition of her genitals or

pubic area.19 Id.

On appeal, the Ninth Circuit Court of Appeals noted without particular comment

the factors set forth by the district court. Weigand, 812 F.2d at 1244. The appellate court

took issue only with the fifth factor—whether the visual depiction suggests sexual

coyness or a willingness to engage in sexual activity. It expressed concern that the fifth

factor erroneously implied that the photographs ―would not be lascivious unless they

showed sexual activity or willingness to engage in it.‖ Id. The appellate court said that

the focus should not be on the child‘s conduct but on the actions of the defendant; it

explained that ―lasciviousness is not a characteristic of the child photographed but of the

exhibition which the photographer sets up for an audience that consists of himself or

likeminded pedophiles.‖20 Id. Because the trial court had factored the child‘s actions

into its determination of lasciviousness, the appellate court characterized the Dost district

court‘s approach as ―over-generous to the defendant.‖ Id. With these comments, the

19

In making its decision, the Dost court described the details of the photos at issue. It noted that

the photos of the fourteen-year-old victim showed her ―totally nude posed in a variety of positions‖ with

her legs ―open and her arms . . . raised behind her head.‖ Dost, 636 F. Supp. at 833. It further

commented that ―her pubic area is in the foreground so as to be the prominent focal point of the

photograph.‖ Id. The ten-year-old victim was also described as nude, ―leaning back, supporting her

weight on her arms, hands resting on the sand . . . . Her pelvic area appears to be slightly raised or

hyperextended, and her legs are spread apart. Her right leg is fully extended at a slight outward angle . . .

. Her pubic area is completely exposed, not obscured by any shadow or body part.‖ Id. Given these facts

and other details in the photographs, the court concluded that ―each and every one of these photographs

depicts a ‗lascivious exhibition of the genitals or pubic area‘ under 18 U.S.C. § 2255(2)(E).‖ Id.

20

On one hand, the appellate court said, ―Private fantasies are not within the statute‘s ambit.‖

Weigand, 812 F.2d at 1245. On the other hand, in affirming the district court, the appellate court found

that the photographs depicted ―a lascivious exhibition because the photographer arrayed [the exhibition]

to suit his peculiar lust.‖ Id. at 1244.

- 22 -

appellate court affirmed the district court‘s finding of ―lascivious exhibition‖ as it related

to the photographs at issue. Id.

Since Dost was decided, most federal courts have utilized the Dost factors to some

extent in deciding whether a visual depiction of a minor constitutes lascivious exhibition

under the sexual exploitation statutes. See United States v. Rivera, 546 F.3d 245, 249 (2d

Cir. 2008) (describing Dost as ―[t]he leading case‖ on lascivious exhibition); United

States v. Williams, 444 F.3d 1286, 1299 n.62 (11th Cir. 2006) (―Virtually all lower courts

that have addressed the meaning of ‗lascivious exhibition‘ have embraced the widely

followed ‗Dost‘ test.‖), rev’d on other grounds, 553 U.S. 285 (2008); Villard, 885 F.2d at

125. In jurisdictions in which the state child sexual exploitation statute is similar to the

federal statute, some state courts, including some Tennessee appellate courts,21 have

applied the Dost factors as well.22 See, e.g., Cummings v. State, 110 S.W.3d 272, 278 n.1

(Ark. 2003); State v. Roberts, 796 So. 2d 779, 786-87 (La. Ct. App. 2001);

Commonwealth v. Sullivan, 972 N.E.2d 476, 484 (Mass. App. Ct. 2012); Hood v. State,

17 So. 3d 548, 555 (Miss. 2009); State v. Smith, 873 N.W.2d 169, 193 (Neb. 2016); State

v. Lopez, 27 A.3d 713, 716 (N.H. 2011); State v. Dubois, 746 N.W.2d 197, 208 (S.D.

2008); Perkins v. State, 394 S.W.3d 203, 208 (Tex. Ct. App. 2012); State v. Bagnes, 322

P.3d 719, 727-28 (Utah 2014). Typically, courts using the Dost factors add a proviso that

the factors are simply guideposts or a ―starting point.‖ They also typically note that some

of the enumerated Dost factors may not be relevant in a given case, while some factors

not enumerated are relevant.23 See Scott Johnson, 639 F.3d at 439-40; Steen, 634 F.3d at

827; United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); Overton, 573 F.3d at

686; see also United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989); Villard, 885 F.2d

at 125.

21

Prior to the case at bar, our Court of Criminal Appeals utilized the Dost factors in three sexual

exploitation decisions. See Whitlock, 2011 WL 2184966, at *6; State v. Mayes, No. E2004-02344-CCA-

R3-CD, 2005 WL 2416620, at *10 (Tenn. Crim. App. Oct. 3, 2005); State v. Dixon, No. 01C01-9802-CC-

00085, 1998 WL 712344, at *2 (Tenn. Crim. App. Oct. 13, 1998).

22

Unlike the federal child sexual exploitation statutes, some state statutes do not include the word

―lascivious‖ or the phrase ―lascivious exhibition‖ to describe the prohibited material. See, e.g., Kan. Stat.

Ann. § 21-5510(d)(1) (2012) (defining ―sexually explicit conduct‖ as ―exhibition in the nude‖); N.C. Gen.

Stat. § 14-190.13(6) (2014) (defining ―sexually explicit nudity‖ as ―[u]ncovered, or less than opaquely

covered‖).

23

The Dost court itself cautioned that the trier of fact should look to other factors ―that may be

relevant in the particular case.‖ Dost, 636 F. Supp. at 832.

- 23 -

Courts that have approved application of the Dost factors, even with the typical

disclaimers that they are useful but non-exclusive, have at times ended up engaged in an

extended discussion of each Dost factor, even those that were not applicable, and have

become bogged down in disputes over what a given Dost factor means and how to apply

it. See, e.g., Rivera, 546 F.3d at 250-53 (describing various disputes over application of

the Dost factors); United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (noting that

Dost has ―fostered myriad disputes‖ and giving examples); see also Wallenfang, 568 F.3d

at 658-59 (methodically applying the six Dost factors, though not statutorily mandated);

People v. Sven, 848 N.E.2d 228, 233-40 (Ill. App. Ct. 2006) (same). In Bolles v. State,

the Texas appellate court acknowledged problems associated with the Dost factors but

nevertheless felt it necessary to approve their use:

The Dost factors are not without problems; courts applying them have often

become mired in numerous disputes regarding the meaning of each factor

and how to apply them. But even the courts that adopted the Dost factors

reluctantly nevertheless employed them out of the need for ―neutral

references and considerations to avoid decisions based on individual values

or the revulsion potentially raised in a child pornography prosecution.‖

Bolles v. State, No. 13-14-00649-CR, 2016 WL 3548797, at *4 (Tex. Ct. App. June 23,

2016) (citations omitted) (quoting Rivera, 546 F.3d at 252).

The sixth Dost factor, whether the depiction is intended to elicit a sexual response

in the viewer, has been the subject of significant controversy.24 Indeed, courts are

sharply split on how the sixth Dost factor should be applied. Some hold that the sixth

factor should be applied ―subjectively,‖ that is, the court should determine whether the

materials at issue were intended to elicit a sexual response in the defendant himself or a

like-minded pedophile. See, e.g., Overton, 573 F.3d at 688-89; Helton, 302 Fed. Appx. at

849; Knox, 32 F.3d at 747; Wolf, 890 F.2d at 245. Others apply the sixth Dost factor

―objectively,‖ looking at whether the subject materials were intended to elicit a sexual

response in the average viewer. See, e.g., Wallenfang, 568 F.3d at 658; Doe v.

24

As noted above, the sixth Dost factor was the subject of the disagreement between the majority

and the dissent in the Court of Criminal Appeals below. See Whited, 2015 WL 2097843, at *7, *16

(McMullen, J., dissenting). In Whitlock, our Court of Criminal Appeals pointed out the split of authority

on the proper application of the sixth factor. Whitlock, 2011 WL 2184966, at *5-6 (surveying cases).

- 24 -

Chamberlin, 299 F.3d 192, 196-97 (3d Cir. 2002); Amirault, 173 F.3d at 34; Villard, 885

F.2d at 125; United States v. McCarty, 672 F. Supp. 2d 1085, 1101 n.11 (D. Haw. 2009),

vacated on other grounds, 648 F.3d 820 (9th Cir. 2011); People v. Lamborn, 708 N.E.2d

350, 355 (Ill. 1999); Sullivan, 972 N.E.2d at 486 n.11; Bagnes, 322 P.3d at 727. At least

one court seems to use a variation of the two. See United States v. Brown, 579 F.3d 672,

683 (6th Cir. 2009) (adopting a ―limited context‖ test to permit limited consideration of

the ―context‖ in which photographs were taken). The difficulty of sorting out this

particular factor prompted one court to comment: ―[S]ome courts struggling to apply the

sixth factor set forth in Dost have virtually abandoned it.‖ Sven, 848 N.E.2d at 235

(citing Villard, 885 F.2d at 125; Amirault, 173 F.3d at 35).

In light of these complications, some courts have steered away from using the

Dost factors. The First Circuit Court of Appeals initially gave a qualified endorsement of

the Dost factors as ―guideposts,‖ see Amirault, 173 F.3d at 33, but later added cautions

that they are not comprehensive or applicable in every case. Id. at 31, quoted in Frabizio,

459 F.3d at 87. In Frabizio, the trial court had dutifully applied the Dost factors to

determine whether the computer photos in the possession of the defendant involved a

minor engaging in a lascivious exhibition. On appeal, the appellate court expressed

disapproval of the trial court‘s analysis, commenting that the trial court had analyzed the

question ―almost exclusively in terms of the Dost factors, and, in our view,

overemphasized those factors in a way which raised the risk of inappropriately limiting

the statute.‖ Id. at 87. It criticized the trial court for ―appl[ying] the six Dost factors in a

way that accorded to them the same status as the statutory definition itself.‖ Id. The

Frabizio court cautioned that reliance on the Dost factors had led some courts to digress

from the primary task of applying the statutory language:

[T]he Dost factors have fostered myriad disputes that have led courts far

afield from the statutory language. One dispute is, for example, how many

of the factors must be present in an image for it to qualify as ―lascivious.‖

Compare, e.g., United States v. Wolf, 890 F.2d 241, 245 & n.6 (10th Cir.

1989) (―We do not hold that more than one Dost factor must be present . . .

.‖), with United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989)

(―Although more than one factor must be present in order to establish

‗lasciviousness,‘ all six factors need not be present.‖). Another dispute is

about what the specific factors mean. See, e.g., Amirault, 173 F.3d at 34

(cataloging disagreement about what the sixth Dost factor means). As one

commentator observed, ―the Dost test has produced a profoundly

incoherent body of case law.‖ A. Adler, Inverting the First Amendment,

149 U. Pa. L. Rev. 921, 953 (2001). There is every reason to avoid

- 25 -

importing unnecessary interpretive conundrums into a statute, especially

where the statute employs terms that lay people are perfectly capable of

understanding.

Frabizio, 459 F.3d at 88. Since Frabizio, the First Circuit has remained skeptical about

Dost. It recently commented that ―lascivious is a ‗commonsensical‘ term and that there is

no exclusive list of factors—such as the so-called Dost factors—that must be met for an

image (or a film) to be ‗lascivious.‘‖ United States v. Silva, 794 F.3d 173, 181 (1st Cir.

2015) (citing Frabizio, 459 F.3d at 25); see also United States v. Batchu, 724 F.3d 1, 9

(1st Cir. 2013) (―We have been clear that the Dost factors are problematic.‖).

In a recent decision, the Seventh Circuit held that the lower court did not err in

using the Dost factors in jury instructions, but it also advised lower courts not to rely on

Dost in future cases: ―We take this opportunity . . . to discourage the use of the Dost

factors; they are unnecessary in light of the clear statutory definition of the term ‗sexually

explicit conduct.‘‖ United States v. Price, 775 F.3d 828, 831 (7th Cir. 2014). The

Eleventh Circuit has not rejected the Dost factors, but it recently said pointedly that the

determination of lasciviousness ―does not require a multi-factor analysis.‖ United States

v. Grzybowicz, 747 F.3d 1296, 1306 & n.8 (11th Cir. 2014) (finding that the subject

photos were ―blatantly lascivious‖ and adding that ―[d]eciding whether the Dost factors

should be part of the law of our circuit is unnecessary in this case‖); see also State v.

Anderson, No. 10-0787, 2011 WL 1376731, at *3 (Iowa Ct. App. Apr. 13, 2011)

(declining to apply the Dost factors to evaluate the alleged child pornography because,

―[i]n our view, we need look no further than the express language of [the Iowa statutes]

as applied to the brochure to affirm the [trial] court‘s finding of guilt‖); Craft v. State,

558 S.E.2d 18, 24-25 (Ga. Ct. App. 2001) (rejecting Dost because it ―interprets California

law and thus is not controlling authority‖).

Even where courts have used Dost to determine whether a given depiction is

lascivious, dissenting opinions and separate concurring opinions have highlighted

concerns about over-reliance on the Dost factors. See, e.g., Sullivan, 972 N.E.2d at 495

(Milkey, J., dissenting) (―[W]hile Dost was a well-meaning effort to lend some

objectivity to the elusive question where the boundary between mere nudity and lewdness

lies, its many shortcomings have been well documented.‖); Steen, 634 F.3d at 829

(Higginbotham, J., concurring) (―The Dost factors are not definitionally equivalent to the

statutory standard of ‗lascivious exhibition of the genitals,‘ but many courts have treated

them as such, even requiring that a certain number of factors be present for pornography

convictions. As a result, these factors often create more confusion than clarity.‖).

- 26 -

The limited value of the Dost factors becomes apparent when the material at issue

is not a photograph. A video, for example, can include properties that photographs do not

have, such as action, change of lighting or setting, time lapse, voices and other sounds,

and depictions of different persons or objects appearing at different times during the

course of the video. These characteristics may affect the perception of the lasciviousness

of the visual presentation, but they are not accounted for in the Dost factors. See, e.g.,

Whitlock, 2011 WL 2184966, at *5 & n.6 (noting factual dispute about whether noises

made by the defendant as he filmed children playing at a pool were ―moaning and

groaning noises‖ or an attempt to sing along with ambient music); Mayes, 2005 WL

2416620, at *10-11 (considering the fact that the defendant could be heard on the video

recording encouraging the minors to hold up their shirts, hold poses for video shots, and

give the defendant a kiss); People v. Hobbs, 152 Cal. App. 4th 1, 4 (2007) (noting audible

comments of defendant while he was secretly videotaping girls between the ages of eight

and eighteen as they changed in and out of swimsuits in a locker room).

We have no particular problem with the Dost court‘s own application of the

enumerated factors to the photographs at issue in that case. Indeed, the enumerated

factors in Dost are, for the most part, unremarkable; they identify characteristics relevant

to whether an image of a child is seen as sexual, such as whether the child in a

photograph is nude or whether the photograph focuses on the child‘s genitals. The

problems seem to arise when Dost is accorded outsized importance. The Dost court‘s

attempt to set forth ―general principles‖ and identify important factors in making

lascivious determinations was a laudable attempt to place structure on the sometimes

amorphous legal analysis surrounding pornography, especially child pornography. See,

e.g., Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (―I

shall not today attempt further to define the kinds of material I understand to be embraced

within that shorthand description [of hard-core pornography]; and perhaps I could never

succeed in intelligibly doing so. But I know it when I see it.‖). However well-intended

Dost was, from our review of the caselaw, we agree that the Dost factors ―often create

more confusion than clarity.‖ Steen, 634 F.3d at 829 (Higginbotham, J., concurring).

We have noted that courts applying Dost almost invariably include caveats to the

effect that the Dost factors are not ―comprehensive,‖ are not ―necessarily applicable in

every situation,‖ are merely a ―starting point,‖ et cetera.25 Despite these recitations,

25

Even the Ninth Circuit, the federal circuit that includes the Dost district court, includes such

caveats. Almost twenty years after the Dost test was enounced, a California district court disavowed use

- 27 -

many seem inexorably drawn to using Dost as a lasciviousness definition or a test of

sorts, with lengthy analysis and weighing of each ―factor‖ and debate regarding different

courts‘ interpretation of specific factors. This often ends up pulling them ―far afield‖

from the task at hand, namely, applying the statutory language to the materials at issue.

Frabizio, 459 F.3d at 88. As discussed above, the sixth Dost factor in particular has

proven to be analytical quicksand.26 For this reason, we reject the use of the Dost factors

as a ―test‖ or an analytical framework for determining whether certain materials

constitute child pornography.

We agree with the First Circuit that phrases such as ―sexual activity‖ and

―lascivious exhibition‖ are ―terms that lay people are perfectly capable of understanding‖

and that they can be identified by the trier of fact through commonsense observation of

the particular features of the subject materials. Id. at 88. In a given case, observation of

the subject materials may include taking note of some of the characteristics identified by

the Dost court, such as whether the child in the visual image is nude or whether the

depiction focuses on the child‘s genitalia or pubic area. Our rejection of the Dost factors

as a ―test‖ or an analytical framework does not preclude judges from using their good

sense to consider these or any other features of a depiction that might tend to make it

of the Dost factors because ―[a] close look at the Dost factors persuades the court that the test is not

particularly helpful.‖ United States v. Hill, 322 F. Supp. 2d 1081, 1086 (C.D. Cal. 2004). On appeal, the

Ninth Circuit reaffirmed that it found the Dost factors still relevant as ―a starting point‖ and added that

they are ―neither exclusive nor conclusive.‖ United States v. Hill, 459 F.3d 966, 972 (9th Cir. 2006)

(―Dost itself acknowledged that it did not see to offer ‗a comprehensive definition of . . . lasciviousness . .

. .‖).

26

For example, in this case, both parties seem to contend that the choice of standard for the sixth

Dost factor—subjective or objective—would virtually predetermine the outcome of the case. From each

party‘s description of the other party‘s position, this Court must either (1) view the depiction of the child

subjectively from the perspective of the defendant or a like-minded pedophile, which would result in

finding a violation of the child exploitation statutes 100% of the time no matter how innocuous the

depiction, or (2) view the depiction of the child objectively from the perspective of the average,

reasonable person, which would result in finding a violation of the statutes 0% of the time because no

reasonable person would ever be aroused by a depiction of a child no matter how egregious. This is a

false choice, and we reject it. As noted above, the First Circuit has warned that we should ―avoid

importing unnecessary interpretive conundrums into a statute . . . .‖ Frabizio, 459 F.3d at 88. The trier of

fact, be it judge or jury, is perfectly capable of determining whether the depiction of the child is of a

sexual character, without resort to either imagining what a pedophile might think or asking themselves

whether they are titillated by it.

- 28 -

sexual or lascivious. Indeed, as will be seen below, in assessing the lasciviousness of the

videos at issue in this case, this Court considers ordinary characteristics, such as the

minor victims‘ nudity and whether the children‘s private body areas are featured in the

videos. However, we must also consider other features of the subject videos not

mentioned in Dost.

In sum, we conclude that the fact-intensive determination of whether particular

materials contain sexual activity or a lascivious exhibition of private body areas is not

facilitated by the adoption of a one-size-fits-all ―multi-factor analysis‖ such as the Dost

factors. See Grzybowicz, 747 F.3d at 1306. Lower courts should refrain from using the

Dost factors as a test or an analytical framework in making such a determination.27

C. Standard under Tennessee Statute

We now turn to the standard under Tennessee‘s statute on the offense of especially

aggravated child sexual exploitation. ―Our primary objective is to carry out legislative

intent without broadening or restricting the statute beyond its intended scope.‖ In re

Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Houghton v. Aramark Educ.

Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002)). ―Our obligation is simply to enforce the

written language.‖ Id. at 614 (citing Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d

99, 102 (Tenn. 2006)); see also Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003)

(―When the statutory language is clear and unambiguous, we apply the plain language in

its normal and accepted use.‖).

As noted at the outset of our analysis, the Tennessee Protection of Children

Against Sexual Exploitation Act includes three sexual exploitation statutes, Tennessee

Code Annotated sections 39-17-1003, -1004, and -1005, which define especially

aggravated sexual exploitation of a minor (the production offense), aggravated sexual

exploitation of a minor (the distribution offense), and sexual exploitation of a minor (the

possession offense). The parallel structure of these three statutes was noted by our Court

27

For the same reasons, we also reject the State‘s suggestion that we adopt a ―limited context‖

approach to the sixth Dost factor in making a determination regarding lasciviousness. See United States

v. Brown, 579 F.3d 672, 683-84 (6th Cir. 2009).

- 29 -

of Criminal Appeals a few years after enactment of the Tennessee Protection of Children

Against Sexual Exploitation Act:

Section 1005 [making production an offense], the violation of which

appellant stands convicted, is one of several offenses set out in the

―Tennessee Protection of Children Against Sexual Exploitation Act of

1990.‖ The other offenses, sexual exploitation [possession] and aggravated

sexual exploitation [distribution], all employ the use of the term ―material.‖

The term is explicitly defined in the definitions section of the Act. The

distinction between the three offenses is the nature of the prohibited

actions. Thus, one who possesses proscribed material is guilty of a class E

felony. One who promotes, sells, or distributes proscribed material is guilty

of a class B felony, as is one who promotes, employs, uses, assists,

transports or permits a minor to participate in performing or producing

proscribed material. Tenn. Code Ann. §§ 39-17-1003–1005 (1991 Repl.).

VanArsdall v. State, 919 S.W.2d 626, 632 (Tenn. Crim. App. 1995). Thus, the

―distinction between the three offenses is the nature of the prohibited actions,‖ but the

―proscribed material‖ for all three offenses (i.e., child pornography), id., is exactly the

same: ―material that includes a minor engag[ed or engaging] in . . . [s]exual activity,‖

Tenn. Code Ann. §§ 39-17-1003(a)(1), -1004(a)(1)(A), -1005(a)(1), defined in section

39-17-1002(8)(G) as the ―[l]ascivious exhibition of the female breast or the genitals,

buttocks, anus or pubic or rectal area of any person.‖ Tenn. Code Ann. § 39-17-

1002(8)(G). There is nothing in the language of any of these statutes indicating that the

content of the subject material would be judged by a different standard depending on

whether the accused produced, distributed, or possessed it. To the contrary, the parallel

structure of the three statutes leads us to conclude that the content of the allegedly

prohibited material is judged by the same standard, regardless of whether the accused

produced it, distributed it, or merely possessed it.

We next look at what that standard is. Both the State and the defendant make their

arguments in the context of the sixth Dost factor, whether the material was intended or

designed to elicit a sexual response. We have already rejected use of the Dost factors as a

test for the reasons outlined above; this holding includes a rejection of the troublesome

sixth Dost factor. We instead focus on the task at hand, namely, application of the

language in Tennessee‘s statute on especially aggravated sexual exploitation of a minor.

The Tennessee statute on especially aggravated sexual exploitation makes it an

offense to produce ―material that includes [a] minor engaging in . . . [s]exual activity.‖

- 30 -

Tenn. Code Ann. § 39-17-1005(a)(1). Although the State argues that the trier of fact

should consider the subjective intent of the defendant in determining whether the minor is

engaged in a ―lascivious exhibition,‖ the language chosen by the General Assembly does

not include any reference to the defendant‘s subjective purpose of sexual arousal or

gratification. Neither does the statutory definition of sexual activity—lascivious

exhibition of the minor‘s private body areas—include a reference to the defendant‘s

subjective purpose of sexual arousal or gratification.

In contrast, other Tennessee criminal statutes, such as observation without consent

and photography without consent (also called ―unlawful observation‖ and ―unlawful

photography,‖ respectively) expressly include the subjective intent of the accused as an

element of the offense. The statute on unlawful observation makes it an offense to

surreptitiously observe a person without their consent in a place where the person has a

reasonable expectation of privacy ―if the viewing . . . (1) [w]ould offend or embarrass an

ordinary person if the person knew the person was being viewed; and (2) [w]as for the

purpose of sexual arousal or gratification of the defendant.‖ Tenn. Code Ann. § 39-13-

607(a) (emphasis added). The similar statute on unlawful photography makes it an

offense to surreptitiously photograph a person when that person has a reasonable

expectation of privacy, ―or in the case of a minor, without the prior effective consent of

the minor‘s parent or guardian, if the photograph . . . (1) [w]ould offend or embarrass an

ordinary person if such person appeared in the photograph; and (2) [w]as taken for the

purpose of sexual arousal or gratification of the defendant.‖28 Tenn. Code Ann. § 39-13-

605(a) (emphasis added). Thus, both offenses explicitly include as an element of the

offense that the defendant engaged in the prohibited conduct ―for the purpose of sexual

arousal or gratification of the defendant.‖ Tenn. Code Ann. §§ 39-13-607 (observation

without consent), 39-13-605 (photography without consent).

Indeed, Tennessee‘s statute on photography without consent essentially dovetails

with the child sexual exploitation statutes; unlawful photography provides a mirror image

of sorts to the child sexual exploitation statutes.29 The unlawful photography statute

28

As we have indicated, the defendant in the instant case initially was charged with this offense

but the charge was dropped, apparently because the surreptitious photography of a minor is not unlawful

if it is done with the parent‘s prior consent. Tenn. Code Ann. § 39-13-605(a).

29

Unlike the child sexual exploitation statutes, the statutes on unlawful observation and unlawful

photography are not limited to offenses against children. As noted above, however, both are deemed

more serious offenses when committed against a child under thirteen years of age. In fact, both statutes

- 31 -

explicitly includes the subjective intent of the accused as an element of the offense, but

the content of the photographic image is not specified.30 See Tenn. Code Ann. § 39-13-

605(a). In contrast, the child sexual exploitation statutes are quite specific about the

content of the subject material, but they make no reference to the accused‘s subjective

intent.31 See Tenn Code Ann. §§ 39-17-1003–1005. The legislature was certainly

mindful of the child sexual exploitation statutes when it enacted the statute on unlawful

photography. See Hicks v. State, 945 S.W.2d 706, 707 (Tenn. 1997) (―In construing

statutes, we presume that the legislature has knowledge of its prior enactments and is

fully aware of any judicial constructions of those enactments.‖).

To further assist in interpreting Tennessee‘s child sexual exploitation statutes, we

compare them to the statutory schemes in our sister states. In contrast to Tennessee,

some states have enacted child sexual exploitation statutes that incorporate a defendant‘s

subjective intent to obtain sexual arousal, stimulation, or gratification as an element of

the crime. For example, California‘s sexual exploitation statutes do not use the term

―lascivious‖ in the definition of ―sexual conduct.‖ Rather, California‘s statutes define

―sexual conduct‖ to include any ―[e]xhibition of the genitals or the pubic or rectal area of

any person for the purpose of sexual stimulation of the viewer.‖32 Cal. Penal Code §§

were amended effective July 1, 2014, to increase the punishment for the crimes from a Class A

misdemeanor to a Class E felony when the victim is under thirteen years old at the time of the offense.

See Tenn. Code Ann. § 39-13-607(d)(2) (Supp. 2016) (unlawful observation); Tenn. Code Ann. § 39-13-

605(d)(2)(B) (Supp. 2016) (unlawful photography). Since the offenses in this case occurred prior to July

1, 2014, these amendments are not applicable.

30

As noted above, for unlawful photography, the subject photograph need only be one that

―[w]ould offend or embarrass an ordinary person if such person appeared in the photograph.‖ Tenn. Code

Ann. § 39-13-605(a).

31

For the mens rea under the child sexual exploitation statutes, the defendant‘s possession,

distribution, or production of the material need only be knowing. See Tenn. Code Ann. §§ 39-17-1003 to

-1005.

32

Like California, several other states‘ statutes define ―sexual conduct,‖ ―sexual activity,‖ or a

similar phrase as any exhibition or nudity of a minor that is for the purpose of obtaining sexual arousal or

gratification. See, e.g., Colo. Rev. Stat. § 18-6-403(2)(d), (e) (2013); Del. Code Ann. tit. 11, § 1100(7)(i)

(2010); Idaho Code Ann. § 18-1507(1)(d), (e) (2006); Ind. Code § 35-42-4-4(a)(4)(C) (2014 & Supp.

2016); Iowa Code Ann. § 728.1(7)(g) (2015); Me. Rev. Stat. tit. 17-A, § 281(4)(E) (2006); Mont. Code

Ann. § 45-5-625(5)(b)(ii) (2009); Neb. Rev. Stat. § 28-1463.02(3), (5) (2009); N.J. Stat. Ann. § 2C:24-

4(b)(1) (2015); N.M. Stat. Ann. § 30-6A-2(A) (2016); Okla. Stat. tit. 21, § 1024.1(A) (2015); 18 Pa.

- 32 -

311.3(b)(5), 311.4(d)(1); see also People v. Campa, No. H037135, 2012 WL 4127442, at

*3 (Cal. Ct. App. Sept. 20, 2012) (holding that hidden-camera video of a sixteen-year-old

girl undressing in the bathroom was sufficient for conviction for possession of child

pornography). Taking a different tack, the Arizona legislature amended its sexual

exploitation statute to criminalize the production or distribution of depictions ―in which a

minor is engaged in exploitative exhibition or other sexual conduct,‖ defining

―exploitative exhibition‖ as exhibition of private body areas ―for the purpose of sexual

stimulation of the viewer.‖ Ariz. Rev. Stat. Ann. §§ 13-3551(5), 13-3553(A)(1)–(2)

(2010) (emphasis added). Interestingly, the amendment was enacted shortly after an

Arizona appellate court reversed a defendant‘s sexual exploitation convictions on similar

facts; the court based its decision on its conclusion that the girls, who were secretly

videoed while changing clothes and taking a shower, were not ―engaged in sexual

conduct.‖ State v. Gates, 897 P.2d 1345, 1351 (Ariz. Ct. App. 1994); see also State v.

Forys, No. 1 CA-CR 07-0849, 2008 WL 4814480, at *2 (Ariz. Ct. App. Oct. 23, 2008)

(recognizing that Gates was decided before the statutory amendment prohibiting the

production or distribution of material depicting the ―exploitive exhibition‖ of minors).

Thus, other jurisdictions have included in their child sexual exploitation statutes

explicit language making the defendant‘s subjective purpose of sexual gratification an

element of the offense. Tennessee has not done so.

All of these factors—the lack of statutory language referring to the defendant‘s

subjective intent of sexual gratification, the contrast with the language in other Tennessee

statutes (photography and observation without consent), and the contrast with statutes in

other states that have expressly made the defendant‘s subjective intent an element of the

offense—all indicate a legislative intent not to include the defendant‘s subjective intent of

sexual gratification as an element of the offense. In other words, Tennessee‘s legislature

did not make the offense of production of child pornography ―turn on whether the maker

or viewer of an image was sexually aroused.‖ Cf. Steen, 634 F.3d at 829-30

(Higginbotham, J., concurring). Accordingly, we hold that, under Tennessee Code

Annotated sections 39-17-1005(a)(1) and 39-17-1002(8)(G), the offense of especially

Cons. Stat. § 6312(g) (2015); Utah Code Ann. § 76-5b-103(10)(f) (2008); Wash. Rev. Code §

9.68A.011(4)(f) (2010). Kansas defines ―sexually explicit conduct‖ as simply ―exhibition in the nude,‖

without a scienter requirement. Kan. Stat. Ann. § 21-5510(d)(1) (2012); see also N.C. Gen. Stat. Ann. §

14-190.13(6) (2014) (defining ―sexually explicit nudity‖ as ―[u]ncovered, or less than opaquely covered,‖

private body areas).

- 33 -

aggravated sexual exploitation of a minor does not include as an element of the offense

the accused‘s intent or purpose of sexual arousal or gratification.

Consequently, our assessment of whether the material is prohibited by the child

sexual exploitation statutes does not turn on the defendant‘s intent or purpose of sexual

arousal or gratification. We consider the content of the material, irrespective of the

defendant‘s subjective intent, to determine whether it includes a lascivious exhibition of

the child‘s private body areas. In addition, as noted above, because Tennessee‘s child

sexual exploitation statutes define the prohibited material in the same way regardless of

whether the defendant is accused of production, distribution, or mere possession, we look

at the depiction of the child to determine whether that material would be deemed

prohibited if the accused merely possessed it and we knew nothing about the

circumstances of its making.

D. Sufficiency of the Evidence

We now consider the nine videos at issue in this appeal to determine whether they

contain sufficient evidence of a depiction that includes a minor engaged in ―sexual

activity,‖ defined as the ―[l]ascivious exhibition of the female breast or the genitals,

buttocks, anus or pubic or rectal area of any person.‖ Tenn. Code Ann. §§ 39-17-

1005(a)(1), -1002(8)(G). In this opinion, we make general observations about the videos

collectively. However, we have considered each of the videos individually, and any court

assessing whether given materials are prohibited by the child sexual exploitation statutes

should consider each photograph or video individually to determine sufficiency of the

evidence for each count of conviction.33

Of the nine videos, six were taken in a bathroom used exclusively by Daughter34

and three were taken in Daughter‘s bedroom. For most of the videos, the defendant can

be seen at the beginning setting up the hidden cell phone camera, stepping back to ensure

that it was positioned the way he wanted, re-positioning it if needed, and then leaving

33

The Court of Criminal Appeals included a detailed description of each video in its opinion. See

Whited, 2015 WL 2097843, at *2-3.

34

It appears that two of the bathroom videos were taken in a different bathroom than the one

customarily used by Daughter because the shower curtains are different.

- 34 -

before Daughter entered the room. When the activity ceases and the victims exit, the

defendant‘s hand can sometimes be seen snatching up the cell phone. From viewing the

videos, it is apparent that neither Daughter nor Friend was aware that they were being

recorded.35

For each of the bathroom videos, Daughter entered for the obvious purpose of

taking a shower. The defendant hid the cell phone in a basket under the bathroom mirror,

with the camera aimed slightly upward, apparently to capture onscreen as much of

Daughter‘s body as possible as she entered and exited the shower. As noted above, the

shower curtain is opaque, so Daughter could not be seen while showering. In these

bathroom videos, Daughter is at times seen fully nude, from the back, from the front, and

in profile. Her bare breasts, buttocks, and pubic area are intermittently visible as she

turns on the shower, enters and exits the shower, and generally moves about doing

grooming tasks such as drying her body, putting on lotion, and towel-drying her hair.

Daughter plays music in some of the bathroom videos, and, in one, she is seen

shimmying to beat of the music as she sings along while still undressed.

For the three bedroom videos, Daughter and Friend (or Daughter alone) entered

the bedroom in their bikini swimsuits, apparently after swimming, and changed into dry

clothes. For one of the bedroom videos, the defendant can be seen joking around with the

two girls after they enter the bedroom; Daughter says, ―Dad, will you get out?!‖ He left

before they changed clothes. In the bedroom videos, the cell phone is hidden low, near or

at the floor, with the camera aimed upward at the area beside Daughter‘s bed, again with

the center of the camera view at approximately the center of the girls‘ bodies. During the

clothes-changing process, the girls are shown with their back or side facing the hidden

camera; breasts, bare buttocks, and pubic regions are intermittently visible.

Thus, all nine videos depict nudity of a minor or minors to varying degrees. As

we have noted, however, mere nudity, without more, is generally considered insufficient

for a finding of lascivious exhibition of private body areas.36 See Wallenfang, 568 F.3d at

35

The depictions in the videos corroborate the testimony of both Daughter and Friend that they

were unaware they were being recorded.

36

By the same token, a finding of lascivious exhibition is not precluded by an absence of nudity,

so long as there is an exhibition of private body areas that is lascivious in nature. See, e.g., State v.

Mayes, No. E2004-02344-CCA-R3-CD, 2005 WL 2416620, at *10 (Tenn. Crim. App. Oct. 3, 2005); see

also Price, 775 F.3d at 837; Carroll, 190 F.3d at 298 n.7; Knox, 32 F.3d at 746.

- 35 -

657; Kemmerling, 285 F.3d at 645-46; Grimes, 244 F.3d at 381; Horn, 187 F.3d at 789;

Amirault, 173 F.3d at 33; Knox, 32 F.3d at 750; Arvin, 900 F.2d at 1391. This conclusion

is compelled by the language in Tennessee‘s child sexual exploitation statutes. As

outlined above, Tennessee‘s statute does not define ―sexual activity‖ as the mere

exhibition of a child‘s private body areas; rather, it is defined as the lascivious exhibition

of the private body areas. Tenn. Code Ann. § 39-17-1002(8)(G); see also Horn, 187 F.3d

at 789 (―Nudity alone does not fit this description; there must be an ‗exhibition‘ of the

genital area and this exhibition must be ‗lascivious.‘‖); Knox, 32 F.3d at 750 (―Nudity

must be coupled with other circumstances that make the visual depiction lascivious or

sexually provocative in order to fall within the parameters of the statute.‖). Therefore,

our task is to determine whether the depictions in the videos recorded by the defendant

are of ―mere nudity‖ or whether they are sufficient for the trier of fact to find that they

include a minor engaged in the ―lascivious exhibition‖ of private body areas.

To aid us in this determination, we compare factually-similar cases to see how

those courts assessed the subject materials. Unfortunately, we find no shortage of

comparative cases involving hidden-camera video of a nude minor.

In some of the hidden-camera cases, video of a nude minor engaged in everyday

behavior has been held to be lascivious and, thus, sufficient to support conviction. These

courts have found that the surreptitious videos included a ―lascivious exhibition‖ because

of evidence that the defendant intended to elicit a sexual response in himself or others.

See, e.g., United States v. Bevers, 329 Fed. Appx. 518, 519 (5th Cir. 2009) (upholding

conditional guilty plea because hidden-camera video of minor showering ―was taped with

the purpose of eliciting a sexual response from the viewer‖); Helton, 302 Fed. Appx. at

844-45, 849 (upholding conviction when defendant secretly videotaped minors using the

toilet and undressing for the shower because the defendant intended to elicit a sexual

response in himself or like-minded individuals); United States v. Theis, No. 14-20072-01-

JAR, 2015 WL 5671377, at *9, *11 (D. Kan. Sept. 25, 2015) (convicting the defendant of

attempted production when hidden-camera video showed an eleven-year-old in a

bathroom engaging in ordinary activities because, ―[i]mportantly, . . . the visual depiction

was intended or designed to elicit a sexual response in himself and like-minded

individuals‖); United States v. Bettman, No. 1:13-CR-363-AA-1, 2015 WL 4945829, at

*3 (D. Ore. Aug. 14, 2015) (denying motion to dismiss charge of production when

hidden-camera video showed the defendant‘s gymnastics students changing clothes,

stating that the ―[d]efendant‘s intent is shown by his methods‖); United States v. Clark,

Crim. A. No. 09-33 GMS, 2010 WL 3488138, at *6 (D. Del. Aug. 30, 2010) (upholding a

guilty verdict for production or attempted production based on a hidden-camera video of

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a fourteen-year-old girl in a bathroom, stating that lasciviousness must be measured from

the intent of the photographer).

Some of the hidden-camera cases in which the video was deemed lewd or

lascivious involved off-camera coaching by the defendant to lure the unsuspecting minor

into engaging in everyday behaviors that would include nudity, such as trying on

clothing, in the location where the camera was hidden. See, e.g., State v. Brabson, 7 So.

3d 1119, 1124 (Fla. Dist. Ct. App. 2008) (noting that the defendant coach asked swim

team members to ―try on‖ swimsuits in his office where he had hidden a video camera);

Sven, 848 N.E.2d at 230 (noting that the defendant instructed his teenage babysitter to get

into the bathtub when bathing his infant, purportedly for safety reasons, and then hid a

video camera in the bathroom). At least one involved behavior that was clearly sexual in

nature. See Diorec v. State, 295 P.3d 409, 412 (Alaska Ct. App. 2013) (defendant hid

camera in step-daughter‘s bedroom and then offered her lubricant and sex toys and

encouraged her to masturbate).

In some of the hidden-camera cases involving nude minors engaged in ―normal‖

activities, the videos were held to constitute a lascivious exhibition because the camera

focused or ―zoomed in‖ on the minor‘s private areas, especially the genitalia, sometimes

to the point where the depiction of the child‘s genitalia occupied most of the screen.37

See, e.g., Brabson, 7 So. 3d at 1122-23 (noting that videos taken by the defendant coach

showed that he adjusted the camera to capture blatant focus on genitalia, and ―the

lewdness requirement . . . may be satisfied by the intent of the [defendant]‖); Sven, 848

N.E.2d at 233 (upholding conviction using an objective standard when the defendant

produced a hidden-camera video of his teenage babysitter in bathtub with infant when

―there are times that all that is seen on the videotapes are the minor‘s vagina or

buttocks‖). Similarly, other courts have found the material to include a ―lascivious

exhibition‖ based on the defendant‘s manipulation of otherwise ―innocent‖ recordings.

See United States v. Holmes, 814 F.3d 1246, 1252 (11th Cir. 2016) (freeze-frames of

minor‘s pubic area from surreptitious video) (holding that ―a lascivious exhibition may be

created by an individual who surreptitiously videos or photographs a minor and later

captures or edits a depiction, even when the original depiction is one of an innocent child

37

As we have noted, ―lascivious exhibition‖ under federal law does not include an exhibition of

female breasts or buttocks; it includes only the exhibition of the ―genitals or pubic area of any person.‖

See 18 U.S.C. § 2256(2)(A)(v). Consequently, federal cases would be less likely to look at whether the

camera focused on the breasts or buttocks of an underage victim.

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acting innocently‖); United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999) (holding

that freeze-framing an image of the minor‘s pubic area created a lascivious product,

emphasizing that ―[t]he ‗lascivious exhibition‘ is not the work of the child, whose

innocence is not in question, but of the producer or editor of the video‖); United States v.

McCall, 833 F.3d 560 (5th Cir. 2016) (upholding guilty plea of producing and attempting

to produce child pornography where the defendant videotaped a minor and used the video

to create still images that zoomed in on the minor‘s breasts and genitals).

In contrast, some courts dealing with hidden-camera videotapes of nude minors

engaged in everyday conduct have held the videos to be insufficient to establish a

―lascivious exhibition‖ of the minor‘s private body areas because the conduct is innocent.

See, e.g., United States v. Romero, 558 Fed. Appx. 501, 503 (5th Cir. 2014) (determining

that photos of girl sleeping and playing was not the use of a minor engaging in lascivious

exhibition for purposes of sentence enhancement); Gates, 897 P.2d at 1347 (reversing a

conviction when the defendant surreptitiously recorded minor females ―innocently

changing their clothes in private‖); Lockwood v. State, 588 So. 2d 57, 58 (Fla. Dist. Ct.

App. 1991) (holding that hidden-camera videos of a sixteen-year-old ―undressing,

showering, toweling herself dry, and performing other acts of feminine hygiene‖ did not

constitute ―sexual performance‖ defined as ―lewd exhibition‖ by a child because they

show innocent, normal, everyday activities); Fletcher v. State, 787 So. 2d 232, 235 (Fla.

Dist. Ct. App. 2001) (holding that the father‘s placement of hidden camera in his

daughter‘s bedroom and bathroom did not support a finding of probable cause to search

because no facts indicated that anything other than innocent conduct would be filmed).

Some courts have reasoned that mere voyeurism, when the minor is nude but not

doing anything sexual, is insufficient to sustain a conviction for producing child

pornography. See Steen, 634 F.3d at 828 (reversing conviction when the defendant

surreptitiously recorded a sixteen-year-old girl who was fully nude as she readied herself

to use a tanning bed because the video reflected mere voyeurism ―upon an unaware

subject pursuing activities unrelated to sex‖); United States v. Honori Johnson, No. 2:10-

CR-71-FtM-36DNF, 2011 WL 2446567, at *9 (M.D. Fla. June 15, 2011) (holding that

hidden-camera bathroom video showing completely nude minor constituted mere

voyeurism).

Other courts have felt that hidden-camera video of a nude minor engaged in

everyday activities is ―sexualized‖ or made lascivious by essentially placing the viewer in

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the place of a voyeur.38 See, e.g., Sven, 848 N.E.2d at 239-40; State v. Myers, 207 P.3d

1105, 1113 (N.M. 2009) (holding that images of children‘s genitals taken from a hidden

camera as they used a toilet ―had a voyeuristic and deviant quality‖ such that fact finder

could have found that they were ―lewd‖); Perkins v. State, 394 S.W.3d 203, 209 (Tex. Ct.

App. 2012) (noting that the videos were ―created and preserved to appeal to deviant and

voyeuristic interests‖).

Still other courts have contrasted hidden-camera depictions with those for which

the defendant coached or posed the minor to appear on-camera in an unnatural,

sexualized pose. See, e.g., Steen, 634 F.3d at 828 (citing Overton, 573 F.3d at 688–89;

Rivera, 546 F.3d at 250) (―When a photographer selects and positions his subjects, it is

quite a different matter from the peeking of a voyeur upon an unaware subject pursuing

activities unrelated to sex.‖); United States v. Wolf, 890 F.2d 241, 246 (10th Cir. 1989)

(upholding conviction when the defendant posed a five-year-old girl in unnatural

positions while she was sleeping and took photos of her, noting that the lower half of the

girl‘s body was nude, her legs were spread apart, and ―[t]he primary focus of light in the

photograph is the victim‘s genitals‖).

With these comparative cases in mind, we turn to the videos at issue in this case.

As noted, all of the videos include depictions of Daughter and/or Friend in various stages

of undress, showing their private body areas, including bare breasts, buttocks, and pubic

areas. Certainly the hidden camera was positioned to capture the girls‘ nude bodies in the

center of the screen, but we cannot say that the camera focused or ―zoomed in‖ on the

private areas to the extent deemed significant in factually similar hidden-camera cases

that did not consider the defendant‘s subjective intent. See, e.g., Sven, 848 N.E.2d at 233

(emphasizing that entire screen was at times focused on minor‘s vagina or buttocks); Asa

v. Commonwealth, 441 S.E.2d 26, 29 (Va. Ct. App. 1994) (holding that photo of minor

38

The Sven court stated:

Essentially, the tape places the viewer in the role of voyeur. . . . In watching the tape, the

viewer stands in relation to the victim as would a peeping tom. . . . Whether an image is

candid or posed has been deemed relevant in determining whether an image is lewd. . . .

However, where, as here, the viewer is placed in the point of view of a voyeur, that the

images are candid contributes to their lewdness. . . . Voyeurism is sexually motivated

conduct, and it is recognized as deviant behavior. . . . [B]y placing the viewer in the role

of voyeur, the images become sexualized . . . in a way consistent with deviant behavior.

Sven, 848 N.E.2d at 239-40 (citations omitted).

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―standing nude‖ did not focus on the minor‘s private body areas but that other photos

were lascivious because they included ―close-up photographs depicting the teenager‘s

genitalia as the primary object depicted in the photograph‖). Furthermore, nothing in the

videos indicates that the victims were posed or coached; they are not in any unnatural or

overtly sexual poses and appear unaware of the camera. In all of the videos, the victims

are engaged in normal, everyday activities for the settings, such as showering and

changing clothes. The defendant, at times, talks with the victims while he is secretly

recording them. However, the conversations are innocuous, such as light banter with

Daughter and Friend, encouraging Daughter to go ahead and take her shower, and so on.

The recorded interactions with the victims are ordinary and do not enhance the sexuality

of the video depictions of Daughter or Friend.

The State argues that the voyeuristic perspective of the videos ―sexualizes‖ nude

images of everyday activities that might otherwise be held ―mere nudity.‖ This argument

bears discussion. In some cases, the fact that the video was recorded by means of a

hidden camera may not be evident from the depiction itself, without considering

extraneous evidence. That is not the case here. In each of the nine videos at issue, the

defendant is seen onscreen in the beginning, carefully setting up the hidden camera, and

then is seen exiting shortly before the unsuspecting victim appears onscreen and disrobes

to shower or change clothes. Thus, while the videos primarily depict the young victims

undressed in their everyday activities, they also depict a middle-age man secreting a

camera to record those activities.

We agree with the State that the actions of persons other than the minor victim

who appear in video or images can affect the perception of whether the exhibition of the

minor‘s private body areas is ―lascivious.‖ See United States v. Ward, 686 F.3d 879, 883

(8th Cir. 2012) (upholding conviction based on hidden-camera video when the defendant

appears in the video positioning the victim or directing her to orient herself for the

camera). Here, the depiction of the defendant setting up the hidden camera portrays

voyeurism and suggests a sexual connotation for the minor‘s engagement in everyday

activities ordinarily done in the nude and in private. Imagining a continuum, ranging

from innocuous video of a fully clothed child all the way to explicit, hard-core

pornographic images of a minor victim, these onscreen images of the defendant move the

perception somewhat further along the continuum in the direction of lasciviousness.

However, if the nude videos of the victim, coupled only with the depiction of the

defendant hiding the camera, were deemed prohibited material under the child sexual

exploitation statutes, it would be difficult to distinguish the offense of production of child

pornography from the lesser offenses that essentially criminalize voyeurism, i.e.,

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observation without consent and photography without consent. So while we consider the

defendant‘s appearance in the videos to be relevant, it does not, in and of itself, turn the

videos into depictions of a minor engaging in a lascivious exhibition.

By looking at comparative cases, we have considered aspects of these videos

found significant by other courts in determining whether the depictions of the minor

victims are lascivious. These include the level and nature of the nudity in the videos, the

emphasis on the minor victims‘ private body areas, the fact that the victims were engaged

in everyday activities ordinarily performed nude, the defendant‘s audible comments and

interactions with the victims recorded on the videos, and the defendants‘ recorded actions

depicting his voyeurism in setting up the camera.39

The question is close, but we must hold that the videos at issue do not rise to a

level at which the trier of fact could reasonably find that they include ―sexual activity,‖

defined as the ―lascivious exhibition‖ of the minor‘s private body areas. Tenn. Code

Ann. §§ 39-17-1005(a)(1), -1002(8)(G). Rather, the minors in the videos are engaging in

everyday activities that are appropriate for the settings and are not sexual or lascivious

within the ordinary meaning of those terms. For this reason, we reverse and dismiss the

defendant‘s nine convictions for especially aggravated sexual exploitation of a minor.40

In light of our reversal of these convictions, the case must be remanded for

39

As demonstrated in our analysis, the fact that we have advised courts against using the Dost

factors as a test does not prohibit courts from considering any of the characteristics highlighted by Dost if

they are relevant in a given case. For example, in this case, we considered the level of nudity in the

videos and the lack of focus on the private body areas of Daughter and Friend. These aspects of the

depictions may be considered along with countless other features not contemplated in Dost, as here we

considered the everyday nature of the victims‘ activities in the videos, the defendant‘s audible comments

in the videos, and the defendant‘s recorded actions depicting his voyeurism.

40

Our holding does not mean that the defendant‘s conduct does not constitute a criminal offense.

The defendant in this case was convicted of observation without consent under Tennessee Code

Annotated section 39-13-607, which means that the jury found that the defendant viewed the victims

without their consent ―for the purpose of sexual arousal or gratification of the defendant.‖ Tenn. Code

Ann. § 39-13-607(a)(2). For this reason, the evidence would undoubtedly have supported a conviction for

photography without consent under Tennessee Code Annotated section 39-13-605, which also requires a

finding that the photography ―was taken for the purpose of sexual arousal or gratification of the

defendant.‖ Id. § 39-13-605(a)(2). However, as noted above, the statute on photography without consent

contains an exception for photography of a minor when it is done with the consent of the minor‘s parent,

and the defendant here is the victim‘s father.

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reconsideration of the defendant‘s sentence on the convictions that were not challenged

on appeal.

We find it necessary to address an issue raised by the dissent in the Court of

Criminal Appeals below. The dissent opined that, if the defendant‘s convictions for

especially aggravated sexual exploitation were reversed, his convictions should

nevertheless be reduced to attempt to commit that crime. See Whited, 2015 WL 2097843,

at *13 (McMullen, J., dissenting) (citing Vanderwal, 533 Fed. Appx. at 500). ―[W]here a

conviction for an offense is reversed on appeal for insufficient evidence, double jeopardy

protects the accused from retrial on that offense, but he may still be tried on lesser

offenses if the evidence at the first trial was not insufficient, as a matter of law, to support

a conviction of those lesser offenses.‖ State v. Maupin, 859 S.W.2d 313, 317 (Tenn.

1993) (emphasis in original). Attempt is a lesser-included offense of the offense charged.

Tenn. Code Ann. § 40-18-110(f)(3) (2012 & Supp. 2016). Our criminal code defines the

inchoate offense of criminal attempt as follows:

(a) A person commits criminal attempt who, acting with the kind of

culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would

constitute an offense, if the circumstances surrounding the conduct were as

the person believes them to be;

(2) Acts with intent to cause a result that is an element of the

offense, and believes the conduct will cause the result without further

conduct on the person‘s part; or

(3) Acts with intent to complete a course of action or cause a result

that would constitute the offense, under the circumstances surrounding the

conduct as the person believes them to be, and the conduct constitutes a

substantial step toward the commission of the offense.

Tenn. Code Ann. § 39-12-101(a).

The defendant in this case was convicted of producing child pornography; the jury

was not instructed on the lesser-included offense of attempt on those counts. Our

conclusion that the defendant did not produce material that is sufficient to support a

conviction for the production of child pornography under the child sexual exploitation

statutes ―is not tantamount to a finding of insufficiency on‖ attempt. Cf. Maupin, 859

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S.W.2d at 318. The facts in this case present a close question regarding whether the

defendant intended to capture exactly what he recorded in the videos—minors engaged in

everyday activities ordinarily done nude—or whether he intended to ―cause a result that

would constitute the offense‖ of production of child pornography by recording the minors

engaged in a lascivious exhibition. Tenn. Code Ann. § 39-12-101(3). Considering the

entirety of the record, ―the evidence in the record is not so insufficient‖ so as to preclude

a finding of attempted production of child pornography. Cf. Maupin, 859 S.W.2d at 318.

Although we have held the evidence insufficient to support the defendant‘s nine

convictions for especially aggravated exploitation of a minor, double jeopardy does not

preclude the State from retrying the defendant on the lesser-included offense of attempt,

should it choose to do so. Id. at 318-19.

In sum, we hold that the evidence is insufficient to support the defendant‘s nine

convictions for especially aggravated exploitation of a minor, and those convictions are

hereby reversed and dismissed. We must remand the case for resentencing in light of our

decision. On remand, the State may retry the defendant on the lesser-included offense of

attempt, if it so chooses.

E. Jury Instructions

At trial, the defendant requested two additional jury instructions. He requested

first that the jury be instructed on the Dost factors, including an instruction that the sixth

Dost factor should be applied objectively rather than subjectively. Second, he requested

a jury instruction stating: ―Photography of an undressed minor by itself is not sufficient

to sustain a conviction for this offense.‖

Because we have reversed and dismissed the defendant‘s convictions for

especially aggravated sexual exploitation, the defendant‘s challenge to the trial court‘s

refusal to give these two special jury instructions is pretermitted. Accordingly, we

decline to address it.

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F. Cross-examination of Victims at Sentencing Hearing

The defendant argues that the trial court committed reversible error in refusing to

allow him to cross-examine Wife, Daughter, and Friend at the sentencing hearing.41 The

Court of Criminal Appeals held that the defendant waived this argument because,

although he argued that he did not timely receive the victim impact statements, he did not

request a continuance or object when the statements were entered into evidence. Whited,

2015 WL 2097843, at *11. The intermediate appellate court held further that any error in

this regard ―was harmless because it did not affect the outcome of the case.‖ Id. We

agree with the Court of Criminal Appeals‘ analysis on this issue and reject the

defendant‘s argument for the reasons stated by the Court of Criminal Appeals in its

decision.

CONCLUSION

We hold that, under the three child sexual exploitation statutes, Tennessee Code

Annotated sections 39-17-1003, -1004, and -1005, the content of the allegedly prohibited

material is judged by the same standard, regardless of whether the accused produced it,

distributed it, or merely possessed it. We reject the use of the Dost factors as a ―test‖ or

analytical framework to determine whether material is prohibited under these statutes.

Interpreting Tennessee Code Annotated sections 39-17-1005(a)(1) and 39-17-1002(8)(G),

we hold that the offense of especially aggravated sexual exploitation, i.e., producing

material that includes a minor engaging in ―sexual activity‖ defined as the ―[l]ascivious

exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of

any person,‖ does not include as an element the accused‘s subjective intent or purpose of

sexual arousal or gratification. To determine the sufficiency of the evidence, the court

must focus on the material at issue and ask whether it includes a depiction of the

lascivious exhibition of a minor‘s private body areas. Assessing the videos in the instant

case, we conclude that the videos do not include a minor engaging in a lascivious

exhibition. For this reason, the defendant‘s convictions are reversed and dismissed, and

41

We address this issue in light of the fact that the defendant will be resentenced on remand.

- 44 -

the case is remanded for resentencing. On remand, the State may retry the defendant on

the lesser-included offense of attempt to commit especially aggravated sexual

exploitation, if it so chooses. The defendant waived any objection to the trial court‘s

refusal to give him the opportunity to cross-examine the witnesses at his sentencing

hearing; even if the trial court erred in this regard, any such error was harmless. Thus, we

reverse and dismiss the defendant‘s nine convictions for especially aggravated sexual

exploitation of a minor, and we remand to the trial court for further proceedings.

________________________________

HOLLY KIRBY, JUSTICE

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