State of Tennessee v. David Scott Hall

01/07/2019

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

January 10, 2018 Session Heard at Knoxville

STATE OF TENNESSEE v. DAVID SCOTT HALL

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 2010-D-3534 Monte D. Watkins, Judge

___________________________________

No. M2015-02402-SC-R11-CD

___________________________________

We granted permission to appeal in this case to assess the sufficiency of the evidence for

a conviction for attempted especially aggravated sexual exploitation of a minor, i.e.,

attempted production of child pornography, in the wake of our decision in State v.

Whited, 506 S.W.3d 416 (Tenn. 2016). The defendant hid a video camera in the minor

victim’s bedroom, aimed to record the area of her bedroom where she normally changed

clothes. Soon after the victim returned to her bedroom, fully clothed, she noticed the

camera and turned it off. Consequently, the resulting video did not depict the minor in

any degree of nudity. The defendant was charged with attempted especially aggravated

sexual exploitation of a minor and was convicted of that offense after a bench trial. The

Court of Criminal Appeals affirmed, and we granted permission to appeal. On appeal,

the defendant argues that the evidence was insufficient to support a finding that he

attempted to produce material that would include a depiction of a minor in a “lascivious

exhibition” of her private body areas, as required under Tennessee’s child sexual

exploitation statutes and construed in Whited. We agree. The evidence presented at trial

shows at most that the defendant intended to produce material that would include images

of the minor victim engaged in everyday activities ordinarily performed in the nude,

which were deemed insufficient in Whited to constitute a “lascivious exhibition” under

Tennessee’s child sexual exploitation statutes. Consequently, we hold that the evidence,

even when viewed in a light most favorable to the verdict, is insufficient to support an

inference that the defendant intended to record, and believed he would record, the minor

victim engaged in a lascivious exhibition of her private body areas. Accordingly, we

reverse the defendant’s conviction.

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

Court of Criminal Appeals Reversed

HOLLY KIRBY, J., delivered the opinion of the Court, in which CORNELIA A. CLARK and

SHARON G. LEE, JJ., joined. ROGER A. PAGE, J., filed a dissenting opinion, in which

JEFFREY S. BIVINS, C.J., joined.

Manuel B. Russ (on appeal), Nashville, Tennessee; Mark Kovach (at trial), Nashville,

Tennessee, for the appellant, David Scott Hall.

Herbert H. Slatery III, Attorney General & Reporter; Andrée S. Blumenstein, Solicitor

General; and Andrew C. Coulam, Assistant Attorney General; Glenn R. Funk, District

Attorney General; and Deborah Housel, Assistant District Attorney General, for the for

the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

During May 2010, Defendant/Appellant David Scott Hall lived with his second

cousin, E.M. (“Mother”),1 and her two minor daughters in Nashville, Tennessee. The

Defendant had moved in with the family temporarily in order to help them repair damage

from a recent flood. At that time, the Defendant was fifty years old, Mother’s older

daughter, A.M.M. (“the Victim”), was thirteen years old, and her younger daughter, A.M.

(“Sister”), was eleven years old.

Each of the daughters had her own bedroom, but they shared the guest bathroom

that was between their bedrooms. While the Defendant stayed in their home, he shared

the guest bathroom with the daughters.

On May 18, 2010, around 6:30 in the morning, the Victim took a shower before

school. After showering, she put on casual clothes while still in the bathroom and then

walked across the hall to her bedroom. When the Victim entered her bedroom, she

turned on the light and noticed that items on her bed had been “ruffled.” She then turned

1

To protect the victim’s identity, we will refer to the victim, her mother, and her sister by generic

designations throughout this opinion.

-2-

toward her dresser and saw the red “recording” light of a camera sitting on her dresser

under some clothes. She went over to the dresser and grabbed the camera. The Victim

immediately recognized the camera as one that belonged to the Defendant. The Victim

took the camera to her younger sister, and together they played the last recorded video

saved on the camera.

The seven-minute video initially focused for a few seconds on the Victim’s fish

tank, which sat on her dresser. The camera was then set down on the Victim’s dresser

next to the fish tank.2 The back of the camera faced the wall behind the dresser, and the

lens faced the bedroom. The image on the video appeared as though the camera was

adjusted before it became still, aimed into the Victim’s bedroom.3

Once the camera finally became still, about 12 seconds into the video, the left side

of the video frame showed the end of the Victim’s bed with piles of clothes on it, the left-

center of the frame showed the bedroom’s only window near the foot of the bed, the

right-center of the frame showed the Victim’s open closet, and the right edge of the video

showed the wall next to the closet. Because light was coming from the window, the

resulting images in the video were backlit and dark.

In the video, just after the camera was placed on the Victim’s dresser, a partial

view of the midsection of a male figure, later identified as the Defendant, could be seen

along the right edge of the frame. About 45 seconds into the video, the camera was

jostled, which made the lens turn down slightly toward the surface of the dresser.

The camera then remained still, with the video frame centered on the open space

of the room in the vicinity of the bed, the window, and the closet. The Defendant’s mid-

torso appeared intermittently in the frame as he walked back and forth across the

camera’s view twice. About two minutes and forty seconds into the video, the Defendant

left the room. The video was accompanied by sound, but the only identifiable sounds

were light noises from the fish tank, a buzzing sound that seemed to come from an

electric device, and the sound of a dresser drawer opening.4

2

The foreground of the video frame showed a zebra-patterned tablecloth that covered Victim’s

dresser; this indicated that the camera was placed directly on the dresser.

3

Commenting on the video, Mother later said that, from her perspective, it seemed “obvious that

[the operator was] setting . . . and arranging” the camera to focus on the part of the room where the

Victim would be undressing.

-3-

About four minutes after the Defendant left the Victim’s bedroom, the fully

clothed Victim returned to her room after taking a shower. She switched on the light,

placed some clothes on her bed, and turned to walk toward her dresser. At that point, the

Victim was standing in the open space of her room in the center of the video frame. Only

her torso, from the upper thigh to the neck, was visible. She was wearing what appeared

to be pajama shorts and a loose-fitting t-shirt, and her hair was wrapped in a towel. The

Victim then turned and approached the dresser. As she did, the center of her chest took

up most of the frame. The Victim noticed the camera’s red “recording” light, and the

video showed the Victim quickly picking the camera up and turning it off. All told, the

Victim was visible in the video for less than fifteen seconds.

As the Victim and Sister watched the video, they recognized the man who

appeared in it as the Defendant. They then took the camera to Mother and played the

video for her. At that point, Mother told the girls to get ready for school while she went

and talked to the Defendant.

Mother went upstairs where the Defendant was staying and asked him if he had

been downstairs that morning. He acknowledged he had been downstairs to the

bathroom, but he denied entering either of her daughters’ rooms. Mother then made an

excuse and asked the Defendant to leave their home.

After Mother dropped her daughters off at school, she went to the police

department. She turned the camera containing the video over to the police and filed a

report.

Detective Chad Gish of the Metropolitan Nashville Police Department conducted a

forensic examination of the Defendant’s camera. In addition to the original video viewed

by Mother, Sister, and the Victim, investigators recovered from the camera what the State

described as a “test” video, recorded about a minute before the original video and then

deleted. The deleted video was forty-two seconds long. It started by focusing on

Victim’s fish tank, just as the other video did. After about three seconds of fish video,

the camera lens panned the Victim’s bedroom. The camera was then placed on the

dresser and aimed toward the middle of the room. The test video was accompanied by

the same sounds, light noises from the fish tank and a faint buzzing sound. Detective

Gish showed the videos to Detective Michael Adkins, who in turn obtained a warrant to

search the Defendant’s home.

4

The Defendant later conceded that the sound in the video was likely him opening a dresser

drawer.

-4-

About three weeks after the videos were taken, police investigators had Mother

make a controlled telephone call to the Defendant. In the phone call, Mother confronted

the Defendant for the first time with the fact that she had found his camera in the

Victim’s bedroom and had discovered the video of the Victim on the camera. The

Defendant professed to be unaware until that moment that Mother had his camera; he

claimed that he had assumed it was in his truck. In response to Mother’s questions, the

Defendant said repeatedly that he did not remember recording the Victim and was

unaware of the existence of the video. After Mother told him the video was taken on the

day he left their home, the Defendant said he recalled perhaps going into the Victim’s

room to look for his prescription sunglasses.5 He added, however, that he did not recall

what happened or how the camera began recording a video. The Defendant asked to see

the video, but Mother refused.

In further response to Mother’s questions in the controlled telephone call, the

Defendant said he might have gone into the Victim’s room that morning to feed the fish

in the Victim’s fish tank while he was waiting to use the bathroom. The Defendant

supposed he might have inadvertently put his camera down on the Victim’s dresser at that

time.

While Mother and the Defendant were talking on the phone, police officers were

stationed outside the Defendant’s home waiting to execute the search warrant. As

planned, moments after the controlled call was completed, the officers conducted the

search of the Defendant’s home.6 While some of the officers searched the Defendant’s

home, Detective Adkins asked the Defendant to speak with him. The two then talked in

the police van for over an hour. Despite the length of the conversation, the Defendant

refused to admit any wrongdoing. Meanwhile, in the search of the Defendant’s home,

officers seized the Defendant’s electronic devices, including a computer and a cellular

telephone, as well as several external memory devices in the form of DVDs, phone

drives, or memory sticks.

In December 2010, the Davidson County Grand Jury indicted the Defendant for

attempted especially aggravated sexual exploitation of a minor, in violation of Tennessee

5

During the controlled conversation, Mother acknowledged to the Defendant that his sunglasses

“look just like” the Victim’s sunglasses and that she “kept putting those sunglasses” in the Victim’s

bedroom.

6

Although the search warrant did not authorize a search of the Defendant’s car, the Defendant

voluntarily allowed the officers to search his car.

-5-

Code Annotated sections 39-17-1005 (2014) and 39-12-101(a)(2) (2014).7 The

Defendant elected to be tried without a jury.

The bench trial began on February 2, 2015. As its proof, the State offered the

testimony of Mother, Sister, the Victim, Detective Gish, and Detective Adkins.8 It also

introduced into evidence the two videos discovered on the Defendant’s camera; both

videos had been visually enhanced for trial.

Detective Gish testified about the forensic analysis of the Defendant’s camera, his

computer, and his other belongings. He said the examination revealed no child

pornography on any of the Defendant’s items. Detective Gish was then asked: “Did you

find any pornography at all?” He responded, “I did. . . . [T]here was some.” The

Defendant objected to this testimony, but the trial court allowed it.

The Victim testified as well. Describing her typical morning routine on weekdays,

the Victim said she would wake up in the morning, awaken Sister, and then take a fifteen-

minute shower. When the family had male guests such as the Defendant, she said, she

would put on clothes in the bathroom before returning to her bedroom after showering

instead of walking across the hall wrapped in only a towel.9 After returning to her

bedroom, the Victim said she would normally dress for the day in the open space between

her dresser and her bed. In her small bedroom, she explained, this was the only space

large enough to put on clothes.

7

The sexual exploitation statute provides that “[i]t is unlawful for a person to knowingly . . . use .

. . a minor to participate in . . . the production of . . . material that includes the minor engaging in . . .

[s]exual activity.” Tenn. Code Ann. § 39-17-1005(a)(1). In this context, “[s]exual activity” means

“[l]ascivious exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of any

person.” Id. § 39-17-1002(8)(G). The applicable section of the attempt statute provides: “A person

commits criminal attempt who, acting with the kind of culpability otherwise required for the offense[,] . . .

[a]cts 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.” Id. § 39-12-101(a)(2). We cite to the current

version of the statutes because there is no material difference between the version of those now in effect

and those in effect at the time of the subject crime.

8

For a more thorough recitation of the trial testimony, see State v. Hall, No. M2015-02402-CCA-

R3-CD, 2017 WL 1655616, at *1-5 (Tenn. Crim App. May 2, 2017), perm. app. granted (Tenn. Aug. 16,

2017).

9

The Victim and Sister both testified that Mother enforced a “house rule” requiring them to put

on clothes before leaving the bathroom when there was a man in the house.

-6-

The Victim testified about finding the Defendant’s camera in her bedroom. On the

day in question, she said, she returned to her bedroom fully clothed after her shower and

noticed that the clothes on her bed “had been ruffled.” She said, “I didn’t remember them

being that way when I had left.” The Victim said she then looked in the direction of her

dresser and walked toward it “to get some underwear.” She continued: “And when I

started looking through the clothes [on the dresser] I saw a red dot and two little bra cup

things. And a red dot. So I unveiled it and there was a camera.” The Victim recognized

it as the Defendant’s camera. When she picked up the camera, it appeared to stop

recording. The Victim then took the camera to Sister, who knew how to play the video,

and together they watched it. They both then took the camera to Mother.

The Defendant elected to testify on his own behalf. On the morning the video was

taken, the Defendant recalled, as he walked past the Victim’s bedroom on his way to use

the bathroom, he heard a cellular telephone alarm. He claimed he went into the Victim’s

bedroom because he noticed her cellular telephone connected to his charger, which the

Victim had borrowed.

At that point, the Defendant said, he noticed the Victim’s fish tank and decided to

take some video of the fish. The Defendant explained that, as an amateur photographer,

he enjoys taking pictures and videos. After he took the first video, he deleted it,

purportedly because he was unsatisfied with the shot. According to the Defendant, he

began shooting the second video and then placed the camera on the dresser while he fed

the fish “to try to coax the fish out.” As he was feeding the fish, the Defendant claimed,

he noticed his prescription sunglasses in the Victim’s bedroom. Distracted by seeing his

sunglasses, he said, he spent a few moments “just nosing around, being nosey” before he

left the Victim’s bedroom, inadvertently leaving his camera behind. The Defendant

claimed his camera was left on the Victim’s dresser because he “forgot [it], just to be

honest.”

On cross-examination of the Defendant, the State introduced into evidence a letter

addressed to Davidson County District Attorney General Torry Johnson, written by the

Defendant in July 2014, between six and seven months before trial. In the letter, the

Defendant offered a somewhat different explanation of his behavior on the morning of

May 18, 2010. He wrote that he initially went into the Victim’s bedroom “probably . . .

to feed the fish” in the fish tank. While feeding the fish, he allegedly noticed his

prescription sunglasses, which had “kept disappearing,” so he decided to look around the

Victim’s room “to see if she had any more of [his] stuff.” According to the Defendant,

he also found his cellular telephone charger in the Victim’s room. He said he was happy

-7-

to have found his sunglasses, so he brought them upstairs and did not remember leaving

his camera in the Victim’s bedroom. If it was left there, the Defendant claimed, it was

not intentional.

Following the close of proof, the trial court found the Defendant guilty as charged

of attempted especially aggravated sexual exploitation of a minor, a Class C felony.

After a sentencing hearing, the trial court imposed a sentence of four years’

imprisonment, suspended after service of one year in confinement.

The Defendant appealed his conviction and sentence.10 He argued, among other

things, that the evidence was insufficient to support his conviction and that the trial court

erred by allowing Detective Gish to testify concerning the adult pornography found on

his computer.11

The Court of Criminal Appeals affirmed the trial court on both issues. It first held

the evidence sufficient to support the Defendant’s conviction. State v. Hall, No. M2015-

02402-CCA-R3-CD, 2017 WL 1655616, at *8 (Tenn. Crim. App. May 2, 2017), perm.

app. granted (Tenn. Aug. 16, 2017). Citing this Court’s recent decision in State v.

Whited, 506 S.W.3d 416 (Tenn. 2016), which also involved hidden-camera video of

minors, the intermediate appellate court reasoned:

In considering whether the Appellant attempted to record lascivious

exhibition of the victim’s private body areas, the evidence shows that, had

the victim not found the camera, it would have recorded her bare breasts,

pubic area, and buttocks while she engaged in the everyday activity of

dressing after showering. She was not posed or coached for the video, and

10

In March 2016, after he was released from incarceration, the Defendant filed a Petition for Writ

of Error Coram Nobis based on subsequently discovered evidence. See Tenn. Code Ann. § 40-26-105

(2012). The trial court rejected the petition based on its finding that the subsequently discovered evidence

“would not have altered the verdict.” The Defendant’s appeal of the coram nobis ruling was consolidated

with the direct appeal of his conviction.

11

The Defendant also raised several other issues in his appeal to the Court of Criminal Appeals,

claiming that the trial court erred in (1) denying coram nobis relief, (2) violating his right to a speedy

trial, (3) admitting certain evidence without showing a proper chain of custody, (4) admitting only a

portion of the controlled telephone call, (5) allowing the Victim to testify about habit, (6) admitting his

letter to General Johnson, and (7) permitting the State to make an improper closing argument. See Hall,

2017 WL 1655616, at *10-13. On appeal to this Court, however, the only issues raised involve the

sufficiency of the evidence and the propriety of admitting evidence of adult pornography. Consequently,

it is unnecessary for us to recount the rulings of the intermediate appellate court on the other issues.

-8-

there were no audible comments or interactions between the victim and the

Appellant in the video. However, we believe the depiction of “a middle-

age man secreting a camera to record” the victim, which also occurred in

Whited, and his walking to her bed “portray[ed] voyeurism and suggest[ed]

a sexual connotation for the minor’s engagement in everyday activities

ordinarily done in the nude and in private.” Id. at 446. Moreover, due to

the small size of the room and the short distance between the dresser and

the bed, the focal point of the video would have been the victim’s private

areas. Thus, we conclude that the evidence was sufficient for the trier of

fact to conclude that the [Defendant] attempted to produce child

pornography by recording the victim in a lascivious exhibition.

Hall, 2017 WL 1655616, at *8. Therefore, viewing the evidence in the light most

favorable to the State, the intermediate appellate court concluded that the evidence was

sufficient to convict the Defendant of attempted especially aggravated sexual exploitation

of a minor.

The intermediate appellate court also held that Detective Gish’s testimony

regarding the adult pornography found on the Defendant’s computer was irrelevant and

should not have been admitted. Id. at *10. It determined, however, that any such error

was harmless in light of the strength of the video evidence and the Defendant’s lack of

credibility. Id. Accordingly, the intermediate appellate court affirmed the Defendant’s

conviction and sentence.

We granted the Defendant’s application for permission to appeal.

ANALYSIS

On appeal, the Defendant first asserts that the evidence at trial was not sufficient

to support his conviction for criminal attempt to commit the offense of especially

aggravated sexual exploitation of a minor. He claims that, even when viewed in a light

most favorable to the State, the evidence shows only that he was attempting to capture

images of the Victim nude while she changed clothes for school. The Defendant asserts:

“Even if [he] had succeeded in capturing these nude images, those images would not

have been sufficient for” the offense of especially aggravated sexual exploitation of a

minor.

-9-

The standard of review for a challenge to 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson v.

Louisiana, 406 U.S. 356, 362 (1972)); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)

(citation and internal quotation marks omitted). To obtain relief on a claim of insufficient

evidence, the defendant must show that no rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at

324. The standard of review is the same regardless of whether the conviction is

predicated on direct evidence, circumstantial evidence, or a combination of the two.

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009)); see also State v. Adams, 405 S.W.3d 641, 662 (Tenn.

2013) (“In Dorantes, this Court abolished any distinction between the standard of proof

required at trial in cases based solely upon circumstantial evidence and that in cases

where direct evidence of guilt is presented by the State.”). Thus, “when the sufficiency

of the evidence is challenged on appeal, the relevant question is simply whether, after

reviewing the evidence—direct, circumstantial, or both—in the light most favorable to

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

beyond a reasonable doubt.” State v. William Eugene Hall, 461 S.W.3d 469, 501 (Tenn.

2015).

On appeal, “[a] verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997). As a result, the burden shifts from the State to the defendant to demonstrate that

the evidence is insufficient to support the verdict. State v. Wagner, 382 S.W.3d 289, 297

(Tenn. 2012) (citing State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011)). On appeal from

a conviction, “the State is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom.” State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.

1978)); see also Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857

(Tenn. 2010)). Questions involving the credibility of witnesses, the weight and value of

the evidence, and all factual disputes raised by the evidence are entrusted to the trier of

fact. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008); Bland, 958 S.W.2d at 659.

This Court will not re-weigh the evidence, nor will it substitute its own inferences for

those drawn by the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014) (citing

State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999)); Wagner, 382 S.W.3d at 297 (citing

Bland, 958 S.W.2d at 659); Dorantes, 331 S.W.3d at 379; State v. Pruett, 788 S.W.2d

559, 561 (Tenn. 1990).

- 10 -

In the instant case, the Defendant was indicted for attempted especially aggravated

sexual exploitation of a minor, or, in more common parlance, attempted production of

child pornography. See Whited, 506 S.W.3d at 428 n.15. Tennessee Code Annotated

section 39-17-1005 defines the offense as “knowingly . . . us[ing] . . . a minor to

participate in . . . the production of . . . material that includes the minor engaging in . . .

[s]exual activity.” Tenn. Code Ann. § 39-17-1005(a)(1). “Sexual activity” is defined in a

separate statute, Tennessee Code Annotated section 39-17-1002, which has several

subparts. In this case, the applicable subpart defines “[s]exual activity” as “[l]ascivious

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

any person.”12 Id. § 39-17-1002(8)(G).

As we have indicated, this Court in Whited recently addressed whether certain

hidden-camera videos depicted minors engaging in a “lascivious exhibition” within the

meaning of the child sexual exploitation statutes. To set up our analysis, we will review

Whited’s facts and holding.

In Whited, the defendant had produced nine surreptitious videos of his twelve-

year-old daughter and her fourteen-year-old friend in the nude and in various stages of

undress by hiding his cell phone video camera in the daughter’s bedroom and in a family

bathroom. 506 S.W.3d at 419. In addition to depicting both minors in various degrees of

nudity, each video also showed preliminary footage of the defendant “carefully setting up

the hidden camera.” Id. at 446. The defendant was then “seen exiting shortly before the

unsuspecting victim appear[ed] onscreen and disrobe[d] to shower or change clothes.”

Id. Based on those videos, the defendant was convicted of nine counts of the completed

offense of especially aggravated sexual exploitation of a minor and received an effective

sentence of twenty-two years imprisonment. Id. at 424. The Court of Criminal Appeals

affirmed the defendant’s conviction and sentence. See State v. Whited, No. E2013-

02523-CCA-R3-CD, 2015 WL 2097843, at *12-13 (Tenn. Ct. App. May 4, 2015), rev’d

506 S.W.3d 416 (Tenn. 2016).

This Court reversed the defendant’s convictions based on insufficiency of the

evidence. Whited, 506 S.W.3d at 447. As a preliminary matter, Whited held that the

issue of whether a depiction rises to the level of a “lascivious exhibition” is a mixed

12

There are several definitions of “sexual activity” in subsection 39-17-1002(8), including

“[v]aginal, anal or oral intercourse, whether done with another person or an animal” and “[m]asturbation,

whether done alone or with another human or animal.” Tenn. Code Ann. § 39-17-1002(8)(A), (B).

However, it is undisputed that the “[l]ascivious exhibition” definition is the only one applicable in the

instant case.

- 11 -

question of fact and law. Id. at 427. The trier of fact determines whether “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.” Id. The court must determine, as a matter of law, whether the

depiction is legally sufficient to constitute a “lascivious exhibition” within the meaning of

the statute. Id.

The primary issue presented in Whited was the legal question—whether the

minors in the videos were depicted engaging in “lascivious exhibitions” under the

relevant statutes. In addressing this issue, Whited observed that the term “lascivious”

means “tending to [incite] lust; lewd; indecent; obscene.” Id. at 430 (citations omitted).

“‘Lewd’ and [‘]lascivious’ are synonyms; both have a sexual connotation.” Id. The

Court recognized that, “[w]hile 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.’” Id. at

431 (quoting United States v. Schuster, 706 F.3d 800, 806 (7th Cir. 2013)).

Whited noted that a number of courts considering similar cases had recited six

factors used in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom.

United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), to determine whether a given

visual image depicted a “lascivious exhibition” of a minor.13 Many of the so-called Dost

factors, such as the focal point of the visual image, the setting of the image, and the level

of nudity, would often be relevant in making a “lasciviousness” determination. Id. at

436. However, Whited rejected as unworkable “the use of the Dost factors as a ‘test’ or

an analytical framework for determining whether certain materials constitute child

pornography.”14 Id. at 437. Lower courts were instructed to instead use “commonsense

13

The Dost case involved the federal prohibition on the production of child pornography, 18

U.S.C. § 2251(a), which prohibits the use of a minor to engage in “sexually explicit conduct for the

purpose of producing any visual depiction of such conduct.” See Dost, 636 F. Supp. at 829-30. “Sexually

explicit conduct” in the federal statutes, similar to “sexual activity” in the Tennessee statutes, is defined as

“lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v).

14

The Court in Whited reached this conclusion after an extensive review of cases in which the

Dost factors were applied, ultimately concluding that “the Dost factors ‘often create more confusion than

clarity.’” Whited, 506 S.W.3d at 437 (quoting United States v. Steen, 634 F.3d 822, 829 (5th Cir. 2011)

(Higginbotham, J., concurring)). Whited explained that, despite the recitation of numerous “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 . . . [,] many [courts] 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

- 12 -

observation of the particular features of the subject materials” to identify “[s]exual

activity” or lasciviousness. Id. “[J]udges [should use] their good sense to consider [the

Dost factors] or any other features of a depiction that might tend to make it sexual or

lascivious.” Id.

Whited also pointed out that, with regard to the “lasciviousness” determination,

“the language chosen by the General Assembly [in the child exploitation statutes] does

not include any reference to the defendant’s subjective purpose of sexual arousal or

gratification.” Id. at 439. In light of the omission of any such reference, Whited

specifically rejected use of the sixth Dost factor (whether the depiction of the minor is

intended to elicit a sexual response in the viewer) as “analytical quicksand.” Whited, 506

S.W.3d at 437; see also id. at 437 n.26 (rejecting parties’ arguments on objective versus

subjective application of the sixth Dost factor as presenting a “false choice”); id. at 439

(“We have already rejected use of . . . the troublesome sixth Dost factor.”). Whited

concluded:

[O]ur 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.

Id. at 441. Thus, the “lasciviousness” determination required under the Tennessee statute

is based on objective consideration of the features of the material produced.

Whited also cautioned that the Tennessee statute should not be construed in a way

that would make “mere nudity,” without more,15 a “lascivious exhibition” under the

statute:

regarding different courts’ interpretation of specific factors.” Id. In this way, courts’ use of the Dost

factors as a definition of lasciviousness or a test “often ends up pulling them ‘far afield’ from the task at

hand, namely, applying the statutory language to the materials at issue.” Id. at 435 (quoting United States

v. Frabizio, 459 F.3d 80, 87-88 (1st Cir. 2006) (criticizing district court for “apply[ing] the six Dost

factors in a way that accorded to them the same status as the statutory definition [of lasciviousness]

itself”)).

15

We also recognized in Whited that an absence of nudity in a depiction of a minor does not

preclude a finding of a lascivious exhibition, “so long as there is an exhibition of private body areas that is

lascivious in nature.” Whited, 506 S.W.3d at 443 n.36 (citing exemplar cases).

- 13 -

Important to this case, it is generally accepted that mere nudity,

without more, is insufficient to establish a lascivious exhibition of private

body areas. 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.

Moreover, criminalizing conduct that involves a depiction of “mere

nudity” may have constitutional implications. 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.”

Id. at 431 (citations omitted).

While a depiction of the “mere nudity” of a minor is not sufficient, other aspects

of a depiction can move it along the continuum toward lasciviousness. Relevant to the

instant case, Whited acknowledged 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.’” Id. at 446. The defendant in the nine

videos at issue in Whited could be clearly seen setting up his camera and aiming it,

stepping into the camera view to check positioning, and then re-positioning his camera.

Whited explained: “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.” Id. Therefore, although “mere nudity”

would be insufficient to establish “lasciviousness,” nudity combined with other factors—

such as the nature of the nudity depicted, emphasis or focus on private body areas, posing

or coaching of the minor by the defendant, sound effects or commentary, or the

defendant’s presence in the depiction in a way that suggests a voyeuristic perspective—

could be sufficient to make the depiction a lascivious exhibition.

Applying these principles to the videos in that case, Whited held that the

depictions of the minors did not rise to the level of a lascivious exhibition within the

meaning of the Tennessee statutes. Whited, 506 S.W.3d at 447. In reaching this

conclusion, the Whited Court considered many aspects of the videos:

[A]ll of the videos include depictions of Daughter and/or Friend in various

stages of undress, showing their private body areas, including bare breasts,

- 14 -

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. 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.

Id. at 446 (citations omitted). The Court held that the presence of the defendant in the

videos in question was not enough to render them lascivious. It explained: “[I]f 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,” such as observation without consent

(Tenn. Code Ann. § 39-13-607) or photography without consent (Tenn. Code Ann. § 39-

13-605(a)).16 Id. at 446-47. It added, “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

16

Whited explained:

[B]oth offenses [observation without consent and photography without consent]

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.”

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. The unlawful photography statute

explicitly includes the subjective intent of the accused as an element of the offense, but

the content of the photographic image is not specified. 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.

Whited, 506 S.W.3d at 439-40.

- 15 -

a minor engaging in a lascivious exhibition.” Id. at 447. Thus, the videos at issue in

Whited did not depict minors engaged in a “lascivious exhibition” of their private body

areas; rather, they depicted minors “engaging in everyday activities that are appropriate

for the settings and are not sexual or lascivious within the ordinary meaning of those

terms.” Id. Accordingly, the defendant’s convictions were reversed and dismissed, and

the case was remanded for resentencing on other crimes for which the defendant was

convicted. Id. at 449.

Even though Whited reversed and dismissed the defendant’s convictions for the

completed crime of especially aggravated sexual exploitation of a minor, the Court noted

that the evidence presented a “close question” regarding whether the evidence was

sufficient for attempt:

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[(a)](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.

Id. at 448. On this basis, the Court permitted the State, on remand, to consider “retry[ing]

the defendant on the lesser-included offense of attempt, if it so chooses.” Id. (“[D]ouble

jeopardy does not preclude the State from retrying the defendant on the lesser-included

offense of attempt, should it choose to do so.”). Thus, Whited left open the question of

whether the evidence in that case would be sufficient to sustain a conviction for

attempted especially aggravated sexual exploitation of a minor.

In this appeal, we are presented squarely with the question of whether the quantum

and type of evidence against this Defendant is sufficient to support a conviction for

attempted especially aggravated sexual exploitation of a minor. The elements of criminal

attempt are set forth by statute:

(a) A person commits criminal attempt who, acting with the kind of

culpability otherwise required for the offense:

- 16 -

(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) (2014) (emphasis added). Although the trial court

below did not explicitly state the subsection on which it relied, it appears that it applied

the definition of attempt in subsection (a)(2).17 In order to find a defendant guilty for

attempt under this subsection, the State must submit “evidence that the defendant acted

‘with the kind of culpability otherwise required for the offense’ and acted ‘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.’” State v. Dotson, 450 S.W.3d 1, 86-

87 (Tenn. 2014) (quoting Tenn. Code Ann. § 39-12-101(a)(2)); see also State v.

Kimbrough, 924 S.W.2d 888, 890 (Tenn. 1996) (citations omitted) (“An attempt, by

nature, is a failure to accomplish what one intended to do. . . . [A]n attempt requires a

desired, or at least an intended, consequence.”).

Considering the criminal attempt statute along with the child sexual exploitation

statutes, the evidence must show that the Defendant knowingly18 acted (1) with intent to

create a video that would include the Victim engaging in a lascivious exhibition of her

private body areas and (2) with the belief that his conduct would cause the resulting

crime intended “without further conduct on [his] part.” Id. § 39-17-1005(a)(1); § 39-17-

1002(8)(G); § 39-12-101(a)(2); see Whited, 506 S.W.3d at 448. Thus, in this appeal, we

must determine whether the Defendant has shown that, after viewing the evidence in a

light most favorable to the verdict, no rational trier of fact could have found beyond a

17

The parties also indicate in their briefs that subsection (a)(2) is the applicable definition in this

case.

18

“A person acts knowingly with respect to a result of the person’s conduct when the person is

aware that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b) (2014).

- 17 -

reasonable doubt that the Defendant knowingly intended to produce material including

the Victim engaged in a lascivious exhibition and believed that he would produce such

material without any further conduct on his part. See Jackson, 443 U.S. at 319, 324;

Davis, 354 S.W.3d at 729.

A defendant’s “intent can rarely be shown by direct proof and must, necessarily,

be shown by circumstantial evidence.” Herman Hall v. State, 490 S.W.2d 495, 496

(Tenn. 1973); see also State v. Brown, 311 S.W.3d 422, 432 (Tenn. 2010). Intent and

belief are both questions of fact. See, e.g., Brown, 311 S.W.3d at 432; Buggs, 995

S.W.2d at 107. Consequently, as to both intent and belief, “we give the State the

strongest legitimate view of the evidence.” Whited, 506 S.W.3d at 427.

We first address the State’s argument that, in proving that the Defendant had the

requisite intent and belief for criminal attempt instead of the completed offense, the State

was “not obligated to prove that the [D]efendant had a reasonable likelihood of actually

capturing lustful behavior on film.” It explains:

[T]he State was not obligated to prove that the [D]efendant had a

reasonable chance of success in his aims or a reasonable belief that he

would be successful. Rather, the State needed only to prove that [the

Defendant] acted with an intent to cause a result that is an element of the

crime. The factfinder need not contemplate what the resulting video would

have shown under different circumstances but what the [D]efendant hoped

it would show, however realistic or unrealistic that hope might have been.

(Emphasis added). The State adds that “the statutory definition of criminal attempt does

not include an element concerning the probability of success. . . . The State need not

show that the [D]efendant reasonably intended to cause the result or reasonably believed

that the conduct would in fact cause the result.”

Based on this premise, the State argues that the Defendant’s conduct supported an

inference that he had the intent and belief, however unrealistic, that the Victim would

engage in “sexual activity” or “lustful behavior” while his hidden camera was recording.

Because the State is not obliged to prove that the Defendant’s intent or belief was

reasonable, it maintains, the evidence in this case was sufficient to support a conviction

for attempted production of a video that included the Victim engaged in the “lascivious

exhibition” of her private body areas.

- 18 -

We disagree with the State’s argument that the reasonableness of a defendant’s

expectations is irrelevant to a conviction of attempt. An assessment of what a defendant

reasonably could have expected to result from his course of conduct is a normal step in

determining whether he had the requisite intent and belief to commit the underlying

completed crime. In a case involving a similar charge of attempt under the federal

statutes, the Sixth Circuit explained:

“[T]he pivotal issue is intent.” The intent element of the charged offense

requires the government to prove that [the defendant] specifically intended

to obtain a lascivious image when he stood outside [the victim’s] bedroom

window with a video camera. Proving that [the defendant] had that intent

might be more difficult than it seems. Although the videos focus on [the

victim’s] pubic area and buttocks, even the government says the images are

only “borderline lascivious.” Thus, even someone like [the defendant]

might not realistically expect—and thus not intend—to obtain lascivious

footage, i.e., child pornography, when filming a girl toweling off after a

shower.

United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013) (citation omitted) (emphasis

added). A factual finding that the Defendant had unrealistic intent or beliefs regarding the

images he would capture by secreting a camera in the Victim’s bedroom cannot be based

on speculation; it must be grounded in evidence indicating that a defendant actually

harbored such “unrealistic” or “unreasonable” expectations or beliefs.

The State also distinguishes this case from Whited and argues that, in the instant

case, whether the Defendant had the intent to produce material that includes a lascivious

exhibition “is subjective, not objective.” The State acknowledges, and we have

explained, that the “lasciviousness” determination for the completed crime of production

of child pornography must be based on objective consideration of the actual features of

the material produced by the defendant.19 Whited, 506 S.W.3d at 441. Because the

Defendant’s conviction in this case was for criminal attempt instead of the completed

offense, the State argues, the standard used is not the objective standard used in Whited;

instead, the Defendant’s intent to create material that includes the child in a lascivious

exhibition is judged on a subjective basis.

19

To reiterate, the completed crime “does not include as an element of the offense the accused’s

intent or purpose of sexual arousal or gratification,” so 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.” Whited, 506 S.W.3d at 441.

- 19 -

Certainly we agree that criminal attempt necessarily focuses on the defendant’s

state of mind and not whether the completed video was actually lascivious. See Sims, 708

F.3d at 835 (“[T]he government does not need to prove that the videos of [the minor]

were actually lascivious.”); United States v. Vanderwal, 533 F. App’x 498, 502 (6th Cir.

2013) (contrasting a charge of the attempted offense with a charge of the completed

offense and noting that “one focuses on a defendant’s state of mind when taking action

towards a crime that is not consummated, the other is an analysis of whether a given

image or video is lascivious”).

However, for criminal attempt to commit especially aggravated sexual exploitation

of a minor, the fact that a defendant may have had the subjective intent to capture an

exhibition that would give him sexual arousal or gratification is not the intent at issue. A

defendant’s subjective intent to elicit his own sexual response from the material produced

differs from intent to create material that includes a “lascivious exhibition,” judged on an

objective basis.20 The trier of fact must determine whether the evidence shows that the

depictions the defendant subjectively intended to record and believed he would capture

would have objectively constituted a “lascivious exhibition” of a minor’s private body

areas.21 Thus, the issue in this case is whether there sufficient evidence to show that the

Defendant intended to record and believed he would record, had he not been interrupted

by the Victim’s discovery of his camera, material that would include a lascivious

exhibition of the Victim’s private body areas.

With these clarifications, we now assess the sufficiency of the evidence in the

instant case. Given the similarity to the facts in Whited, we look at whether the evidence

is sufficient to show that the Defendant intended to produce a video that would be further

along the “lasciviousness” continuum than the videos in Whited.

20

As one judge put it: “A pedophile may be aroused by photos of children at a bus stop wearing

winter coats, but these are not pornographic.” United States v. Steen, 634 F.3d 822, 829 (5th Cir. 2011)

(Higginbotham, J., concurring).

21

In Whited we noted that, “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.” Whited, 506 S.W.3d at 441. In the context of criminal attempt, we look at

whether the evidence shows that the material the defendant intended to produce, and believed he would

produce without any further conduct, would be prohibited if merely possessed.

- 20 -

Viewing the evidence in a light most favorable to the trial court’s judgment, we

give due deference to the trial court’s implicit credibility determination against the

Defendant and reject his innocuous explanations for his conduct. See Campbell, 245

S.W.3d at 335; Bland, 958 S.W.2d at 659. Rather, it can reasonably be inferred from the

evidence that the Defendant made the first “test” video to determine where to place the

camera in order to capture the area in the Victim’s bedroom at the foot of her bed where

she would be changing clothes, in accordance with her normal routine after her morning

shower. When the Defendant placed his camera in the Victim’s bedroom for the second

video, it can reasonably be inferred that he intentionally hid it under bra inserts on her

dresser22 and pointed it to face that same open space near the foot of the Victim’s bed

where she would be expected to undress and change clothes. The lens of the camera was

stagnant; it was placed so that the frame centered on the Victim’s torso, but it was not

“zoomed in.”23 Thus, it can reasonably be inferred from all of the evidence that the

Defendant intended to capture a video depiction of the minor Victim in the nude, both as

she changed clothes in the room and as she walked towards the camera to collect her

undergarments.

These depictions are similar to those in Whited, in which the camera was situated

so as to capture the victims as they walked about in the bedroom or bathroom nude,

performing ordinary activities such as grooming or changing clothes. The camera frame

in Whited was centered on the victims’ midsections, in closer range when they

approached the camera. When the camera was hidden near the sink in the bathroom, the

victim in Whited came into closer range when she approached the sink to groom her hair,

just as the Victim in this case came into closer range as she approached her dresser to get

undergarments out of her dresser drawer. In Whited, those videos were deemed not to be

portrayals of a minor engaged in the “lascivious exhibition” of her private body parts.

The State argues that the totality of the evidence, viewed in a light most favorable

to the verdict, shows that the Defendant did not merely attempt to produce a video of the

type involved in Whited; rather, the Defendant attempted “to capture images that would

excite lust.” The aspects of the video that “put it over the edge” from innocuous to

22

The proof at trial indicated that the camera was hidden under bra inserts, although that fact is

not apparent from the video.

23

The record does not indicate whether the Defendant’s camera had a “zoom” feature, but

regardless, neither of the resulting videos show evidence of the use of a “zoom” feature.

- 21 -

lascivious, the State argues, are the Defendant’s “extensive staging” and “careful

placement” of the camera, with the Victim’s bed in the center range of the camera frame.

The State claims that the Defendant carefully placed the camera on the dresser in order to

capture the Victim walking toward it, knowing that her undergarments were on the

dresser, so as to produce a close-up shot of her breasts and other private body areas.

From our review of both videos in this case, it cannot reasonably be inferred that

the Defendant intended to capture depictions of the Victim that were appreciably

different from those in Whited. The evidence certainly supports a finding that the

Defendant engaged in so-called “staging” by ensuring optimal placement of the camera

so as to aim the camera towards the center of the Victim’s bedroom to capture a view of

the Victim’s midsection while she was near her bed and to capture closer-range images as

the Victim approached her dresser to retrieve undergarments. The bathroom videos in

Whited involved similar “staging.” Whited, 506 S.W.3d at 442. This evidence of

“staging” establishes that the Defendant intended to video the Victim in the nude while

changing clothes, but it does not give rise to an inference that the Defendant attempted to

obtain a video any more sexualized than the videos in Whited.24

The State points out that the Defendant positioned the camera so that the video

would include the bed in the frame and the Victim in the vicinity of the bed. The State

also notes the Defendant’s activities in the video, claiming that the Defendant is shown in

the video “examining” the Victim’s bed, repeatedly going back to it, and is then seen

“doing something while facing” the Victim’s bed. All of this conduct, the State argues,

purportedly demonstrates that the Defendant had an “inordinate interest” in the Victim’s

bed. Stressing that it is not obliged to show that the Defendant’s intent and belief were

reasonable, the State contends that “[t]he [D]efendant’s apparent fixation on [the

Victim’s] bed supported the inference that he intended to capture sexual activity by [the

Victim].”

This is a bridge too far. In the video, the Defendant’s face cannot be seen, so his

visual focus cannot be determined. Rather than appearing fixated on anything in

particular, the Defendant appears to be walking about the Victim’s bedroom rather

24

We agree with the dissent that the Defendant’s multiple innocuous explanations were not

credible, and we give no credit to his testimony. We further agree that the evidence supports an inference

that the Defendant intended to capture video of the Victim fully nude when she undressed and as she

approached her dresser. However, the Defendant’s lack of credibility does not substitute for evidence that

the Defendant intended to capture, or believed his hidden camera would capture, an image of anything

more than mere nudity.

- 22 -

aimlessly; his precise activities simply cannot be determined from viewing the video. As

to the Victim’s anticipated activities in her bedroom, the only evidence in the record is

her own testimony about her morning routine: showering, returning to her bedroom fully

clothed, and then changing clothes for school.25 Neither the Defendant’s conduct in the

video nor the Victim’s testimony amount to evidence that the Defendant actually

harbored subjective expectations or beliefs—even “unrealistic” or “unreasonable” ones—

that the Victim would engage in “sexual activity” or “lustful behavior” as the hidden

camera rolled.26

To the extent that the State invites the Court to engage in sheer speculation about

the Defendant’s hopes and fantasies, we respectfully decline to do so. Any finding

regarding the Defendant’s intent or belief must be grounded in evidence, not in

speculation. Absent such evidence, the trier of fact must determine what facts can

reasonably be inferred from the evidence. In other words, it must consider whether the

Defendant could “realistically expect—and thus . . . intend—to obtain lascivious footage,

i.e., child pornography,” from filming the Victim changing clothes for school. Sims, 708

F.3d at 835. While “the State is entitled to the strongest legitimate view of the evidence”

at trial, it may only rely on “reasonable or legitimate inferences which may be drawn”

from that evidence. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The State has

pointed to no evidence sufficient to support an inference that the Defendant had an intent

25

Some hidden-camera cases have involved concrete evidence of overt attempts (successful or

otherwise) to persuade a child to engage in sexual activity for the purpose of then surreptitiously

recording the child engaged in the activity. See, e.g., Diorec v. State, 295 P.3d 409, 412 (Alaska Ct. App.

2013) (describing the defendant’s hidden-camera recording of his fourteen-year-old stepdaughter’s

bedroom made after the defendant left her lubricants and sex toys in hopes of recording her using them).

There is no such evidence in this case.

26

In describing the Defendant’s conduct, the dissent states that the Defendant “walked toward the

victim’s bed twice, ruffled through her clothes, and left the room.” This description is not supported in

the record, because the video does not show the Defendant actually touching items on the Victim’s bed.

Victim testified that, when she returned from the bathroom, her clothes “had been ruffled” and she “didn’t

remember them being that way when [she] left.” We assume that the jury credited this testimony and

give appropriate deference to it, so we assume for purposes of this appeal that the Defendant “ruffled” the

Victim’s clothes while Victim was in the shower, but it had to have taken place before the camera’s video

recording function was turned on. Thus, the record does not support the dissent’s narrative, that the

Defendant ruffled through Victim’s clothes after he “walked toward the victim’s bed twice” and then left

the room, because these actions took place after the camera was turned on and were captured on the

video. More importantly, any off-camera “ruffling” of the Victim’s clothes does not move the needle to

show that the Defendant intended to capture a video depiction of the Victim engaged in sexual activity.

- 23 -

or belief, reasonable or unreasonable, that he would capture video images of the Victim

engaged in any behavior other than changing her clothes for school.

The State also argues that the Defendant’s presence and conduct in the video

created a strong voyeuristic perspective. Again focusing on the evidence in the video of

the Defendant’s supposed “inordinate interest” in or “fixation” on the Victim’s bed,27 the

State argues that the video the Defendant intended to produce would have included a

voyeuristic perspective sufficient to sexualize an otherwise innocent video.

For this aspect of the video, we need not project what the Defendant may have

intended to record; that part of the video was completed before the Victim discovered the

hidden camera. Consequently, in that respect, we can more directly compare it to the

videos in Whited. Several of the Whited videos showed the defendant father setting up

the hidden camera, stepping into the camera frame to check its positioning, and at times

re-positioning it so as to capture a better view of the nude minor’s private body areas as

she emerged from the shower or changed clothes. Whited, 506 S.W.3d at 446. In the

instant case, a portion of the Defendant’s clothed midsection can be seen briefly in the

beginning of the video, and his entire clothed midsection can be seen as he walks back

and forth twice across the camera’s view; his face is never seen. In contrast to Whited,

the Defendant in this case does not position himself in front of the camera and then adjust

the camera’s frame to ensure optimal view of the Victim. As we have indicated, the

Defendant’s activities on camera appear almost aimless and are not suggestive of

sexuality.

While the Defendant’s presence in the video is relevant, it does not support a

finding that the Defendant intended to create a video that would have been any more

sexualized than the Whited videos. If anything, the voyeuristic perspective in the video in

this case is more muted than that in Whited. Ultimately, the Defendant’s presence and

conduct in the video would not be sufficient to make the minor’s “exhibition” in the

video “lascivious” under the child sexual exploitation statutes.

27

This argument overlaps with the State’s contention that the trier of fact may reasonably infer in

this case that the Defendant intended and believed that he would capture images of the Victim engaged in

“lustful” behavior, in that both arguments emphasize the Defendant’s supposed “fixation” on the Victim’s

bed. However, it is a separate argument. The State in effect argues that the Defendant’s purported

inordinate interest in the Victim’s bed in the video (1) demonstrates that he had a subjective though

unrealistic belief that his hidden camera would record explicit sexual conduct by the Victim, and (2)

enhances the voyeuristic element of the video, making it lascivious under the child sexual exploitation

statutes. These are two separate arguments, so we address them separately in this Opinion.

- 24 -

The State cites United States v. Johnson, 639 F.3d 433 (8th Cir. 2011), and urges

us to follow the approach taken in that case. In Johnson, the defendant was a

weightlifting coach at a sports medicine clinic. 639 F.3d at 435. He instructed minor

female weightlifters to go into an examination room, strip naked, and weigh themselves.

Unbeknownst to the victims, the defendant had set up a hidden camera in the examination

room and took several surreptitious videos of the minor females as they weighed

themselves in the nude. Id. at 435-36. The defendant’s face could be seen in the videos

adjusting and positioning the camera before the unsuspecting athletes came into the room

to weigh. In at least one video, he could be heard pointedly asking one of the minor

female athletes if she had “stripped down completely” before weighing herself. Id. at

436. The degree of the camera’s zoom and the position of the scale changed from video

to video. Some videos showed the minors’ side view and others showed a frontal or a

backside view, all while the minors were naked. Id.

The jury in Johnson convicted the defendant of attempted production of child

pornography. Id. at 435. The district court then granted the defendant’s motion for

acquittal, concluding that while he may have been guilty of video voyeurism,28 he had not

attempted to persuade the minors “to engage in sexually explicit conduct so it could be

captured on video.” Id. at 437 (quoting the district court order). The district court found

that the images on the defendant’s videos “were not lascivious and only depicted mere

nudity,” and so the evidence was insufficient evidence to support the verdict of attempted

production of child pornography. Id.

The Eighth Circuit Court of Appeals reversed, finding that the evidence was

sufficient to establish the crime of attempted production of child pornography, even

though there was no “lascivious exhibition” in the videos. Id. at 440-41. The appellate

court noted that the defendant’s camera was specifically pointed at the scale where the

female athletes would be standing nude, at the defendant’s direction, and the camera

angle was such that the frame encompassed the minors’ nude bodies “from their

shoulders to below their knees.” Id. It pointed out that, for some of the videos, the

defendant coach adjusted the zoom feature of the camera “in an attempt to tighten the

focus of the camera on the area where the females’ genitals would be if they were to face

the camera.” Id. at 440. It also relied on statements the defendant made to police that he

recorded the videos because he was curious as to what the minor females looked like

nude and “that his ‘pervertedness got the best of [him].’” Id. at 441 (alteration in

original) (citation omitted). These statements, the appellate court held, satisfied the sixth

28

The Johnson court stated that the defendant was not charged with the offense of video

voyeurism “due to jurisdictional limitations.” Johnson, 639 F.3d at 437.

- 25 -

Dost factor, that the defendant “intended the videos to be sexual in nature and to elicit a

sexual response in the viewer.” Id. For these reasons, the appellate court in Johnson

reversed the acquittal and reinstated the jury’s verdict. Id.

We agree that the factual scenario presented in Johnson is similar in some respects

to the circumstances of the instant case. There are also, however, important distinctions.

The conclusion in Johnson was based in part on the problematic sixth Dost factor,

whether the depiction is intended to elicit a sexual response in the viewer, a factor that

was specifically rejected in Whited based on the language in the Tennessee child

pornography statutes. Johnson, 639 F.3d at 441; Whited, 506 S.W.3d at 437, 439. In so

concluding, the appellate court in Johnson relied on incriminating statements by the

defendant that his “pervertedness” motivated his actions. Johnson, 639 F.3d at 441.

There are no such incriminating statements in the instant case. Furthermore, the Johnson

court based its conclusion in part on the defendant’s repeated attempts to use the “zoom

feature” on the camera to provide a close-up view of the minors’ genital area. See id. at

436. Here, the recording was intercepted by the Victim and there is no evidence

indicating that the Defendant intended to “zoom” the camera in on the Victim’s private

body areas. Finally, the videos in Johnson included audible comments by the defendant

“pointedly ask[ing] the young woman . . . if she had stripped completely.”29 Id. There

are no comments whatsoever by the Defendant in the videos in the instant case.

Ultimately, then, the Johnson court’s affirmance of the defendant’s conviction for

29

In other cases, the defendant’s comments or other sounds accompanying the video images

sexualized images of minors engaged in everyday activities performed in the nude. For example, in

United States v. Petroske, No. 17-CR-0116 (PJS/LIB), 2018 WL 672505 (D. Minn. Feb. 2, 2018), the

defendant was convicted of producing or attempting to produce child pornography when “he

surreptitiously recorded minors in various states of undress through their bathroom or bedroom

windows.” Petroske, 2018 WL 672505, at *1. In some of the videos, the defendant could be heard

masturbating and making sexual comments about the bodies of the victims. Id. at *1-2. The district court

observed that the videos were “voyeur videos,” which “are a well-known category of pornography.” Id.

at *5. The voyeuristic nature of the videos, “combined with the videos’ ‘soundtrack’ of [the defendant]

masturbating and making crude sexual comments, could have led a reasonable jury to conclude that the

exhibitions of genitals in [the defendant’s] videos were lascivious.” Id. Under these circumstances, the

district court held that “a reasonable jury could have concluded that when [the defendant] set out each

night—camera phone in hand—to stalk his prey, he did so with the intent of producing videos that

contained the lascivious display of genitals.” Id. Again, there is no comparable evidence in the instant

case.

- 26 -

attempted production of child pornography was based on a different legal standard

applied to a different set of facts. Consequently, we find it unpersuasive.30

The dissent cites State v. Grisham, No. E2015-02446-CCA-R3-CD, 2017 WL

1806829 (Tenn. Crim. App. May 5, 2017), perm. app. denied (Tenn. Sept. 20, 2017), in

support of its conclusion that the evidence in the instant case is sufficient to support the

Defendant’s conviction of attempt. In our view, however, Grisham demonstrates the type

of evidence that is critically lacking in the instant case.

In Grisham, the Court of Criminal Appeals reversed the defendant’s conviction for

the completed offense of especially aggravated sexual exploitation of a minor, but it

modified the defendant’s conviction to attempted especially aggravated sexual

exploitation.31 Grisham, 2017 WL 1806829, at *25. Although both Grisham and the

instant case involve the secret videotaping of a minor performing “everyday activities

ordinarily performed nude,”32 Whited, 506 S.W.3d at 447, the similarities end there.

Grisham’s conclusion on attempt was based on much more evidence probative of the

defendant’s intent than is present in the instant case.

First, the Grisham defendant figured much more prominently in the completed

video than does the Defendant in the instant case, engaged in behavior that could be

viewed as indicating his intent. The Grisham defendant could be seen setting up his cell-

30

The dissent also cites the videos in Johnson as an example of “the type of material that some

courts have found to be even further along the continuum towards lasciviousness and beyond mere

voyeurism.” However, the dissent fails to acknowledge the factors in Johnson that are not present in the

instant case, namely, the Johnson defendant’s repeated attempts to “zoom” the camera on the victims’

private body areas, his audible sexual comments on the video, his incriminating reference to his own

“pervertedness,” and the Johnson court’s reliance on the problematic sixth Dost factor, specifically

rejected in Whited.

31

Without explaining its decision to modify the defendant’s conviction, the Court of Criminal

Appeals in Grisham said only that it agreed with the trial court’s observation “that the evidence ‘one

hundred percent’ supported an attempt conviction in this case.” Id. at *21. Given the trial court’s

comments, this statement may indicate that the appellate court may have erroneously relied on the trial

court’s apparent misperception that the defendant’s subjective purpose of his own sexual arousal or

gratification is the requisite intent for the offense of criminal attempt to produce child pornography. See

Grisham, 2017 WL 1806829, at *21. For this additional reason, we find that Grisham does not support

the conclusion advocated by the dissent in this case.

32

In Grisham, the defendant actually succeeded in capturing the minor showering, while the

Defendant in the instant case only made an attempt to capture the minor in the nude. See Grisham, 2017

WL 1806829, at *1.

- 27 -

phone camera over the toilet and angling it in a downward direction, and he was standing

in front of the toilet urinating, lifting his shirt to scratch his chest and nipples, licking his

lips, and moving his tongue back and forth. Grisham, 2017 WL 1806829, at *23.

Second, the record in Grisham included still shots of the same victim while nude. This

supported an inference that the defendant in Grisham intended to manipulate otherwise

innocuous video footage of the nude victim to turn it into a lascivious exhibition.33 There

was no such evidence in the instant case.

Most importantly, in Grisham, law enforcement’s search of the defendant’s

belongings revealed that he was in possession of other forms of child pornography,

including additional video footage and still photographs of the same naked minor, as well

as “four images allegedly showing digital penetration of a six-month-old infant.”34 Id. at

*1. While evidence that the defendant possessed other child pornography may not be

relevant to the question of whether a completed visual image is lascivious, it may well be

relevant to establish the defendant’s intent to produce child pornography by videotaping

the minor victim in the nude.35 Vanderwal, 533 F. App’x at 502 (citation omitted)

33

For cases that involve evidence that the defendant intended to take further actions to manipulate

video footage in order to sexualize the depictions of nude minors engaged in everyday activities, see, for

example: United States v. McCall, 833 F.3d 560, 561-62 (5th Cir. 2016), cert. denied, 137 S. Ct. 686,

196 L. Ed. 2d 566 (2017) (upholding guilty plea for attempting to produce child pornography where

defendant transferred his cell phone’s memory card to another device in order to create still images of the

victim and modify them using zoom, exposures, and filters); United States v. Theis, 853 F.3d 1178, 1180

(10th Cir. 2017) (upholding conviction for attempted production of child pornography when the defendant

took hidden-camera videos of an eleven-year-old female showering and using the toilet and then

transferred the images to his computer and created still images that focused on her genital and pubic

areas); see also United States v. Holmes, 814 F.3d 1246, 1252 (11th Cir. 2016) (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 acting

innocently”).

34

The defendant was charged with several crimes, including the completed crime of especially

aggravated sexual exploitation of a minor. With respect to the photos of the six-month-old infant, the

defendant was charged with sexual exploitation of a minor, that is, possession of child pornography.

Grisham, 2017 WL 1806829, at *4.

35

At the very least, the possession of child pornography is relevant to show that a defendant is, in

fact, a pedophile. See United States v. Lebovitz, 401 F.3d 1263, 1271 (11th Cir. 2005) (quoting S. Rep.

No. 104-358, at 12-13 (1996)) (“Law enforcement investigations have verified that pedophiles almost

always collect child pornography or child erotica.”).

- 28 -

(“[B]road contextual evidence may be both relevant and admissible to prove a

defendant’s intent in creating an image.”).36 In the instant case, the record contains no

evidence that the Defendant possessed any child pornography, either physically or

digitally on any of his devices, and there is no evidence that he has had any history of

involvement with child pornography. Thus, overall, Grisham points up the type of

evidence that is lacking in this case; it does not support the dissent’s conclusion that the

evidence was sufficient to convict the Defendant of attempted especially aggravated

sexual exploitation of a minor.

Indeed, the dissent’s own narrative of what the evidence shows that this Defendant

intended to produce describes a depiction no further “along the continuum in the

direction of lasciviousness” than the completed videos in Whited. Whited, 506 S.W.3d at

446. The dissent describes the Defendant’s video as “focused in on the victim’s chest as

she approached her dresser, and the moment before she grabbed the camera, her chest—

though fully-clothed due to her quick discovery of the hidden device—occupied the vast

majority of the camera’s frame,” noting that, even before the victim approached the

dresser, the camera “was positioned so that only her torso from her shoulders to her

upper-thighs was visible and not her face.” Thus, the dissent stated, “it was reasonable

for the trial court to find that the Defendant . . . believed he would have recorded a video

capturing the victim’s fully nude torso approaching her dresser.” The dissent’s

description of the video this Defendant intended to produce should be compared to the

Court of Criminal Appeals’ description of one of the videos actually produced in Whited:

“The top of the victim’s buttocks was exposed as she remained standing with her back to

the camera. Her breast and pubic area were visible as she stepped out of the shower and

began to put on her clothes. Her breasts were visible after she put on her underwear, and

she briefly leaned directly over the camera to retrieve a towel. Her breasts continued to

remain visible as she put on her pants and stood inches away from the camera.”37

Whited, 2015 WL 2097843, at *3 (emphasis added). Even though the focal point of the

camera was angled towards, in the words of the dissent, the minor’s “bare chest as she

leaned over her dresser to reach for clothing,” captured while she was engaged in

“everyday activities ordinarily performed nude,” did not transform the completed video

36

In Vanderwal, authorities found in the defendant’s home 914 videos and 5,342 still images

depicting child pornography. Vanderwal, 533 F. App’x at 499. In cases involving child pornography, it

is not uncommon to find that the defendant possessed a “collection” of sorts. See, e.g., Sims, 708 F.3d at

833 (uncovering “two disks containing at least 90 images of child pornography”).

37

Our opinion in Whited noted that “[t]he Court of Criminal Appeals included a detailed

description of each video in its opinion.” Whited, 506 S.W.3d at 442 n.33.

- 29 -

into a “lascivious exhibition” within the ordinary meaning of the statutory term.38

Whited, 506 S.W.3d at 447; see Tenn. Code Ann. § 39-17-1002(8)(G). The same must be

said of the video in this case. Therefore, even the dissent’s own description of the video

this Defendant intended to record would not carry the day under Whited.

Interestingly, the trial in the instant case was conducted before our decision in

Whited was issued. Without the benefit of this Court’s analysis in Whited, the State’s

position at trial was somewhat different than its position in this appeal. To counter the

Defendant’s contention that he was in the Victim’s room for innocent reasons, the State

argued at trial that the Defendant set his camera in the Victim’s room to catch her in the

nude while changing clothes. The State’s closing argument is replete with assertions that,

had the Defendant succeeded, he would have captured a depiction of the Victim changing

clothes. A few examples of those assertions are illustrative: (1) “[The Defendant had] an

intent and design to catch [Victim], a thirteen year old, changing clothes. And if [Victim]

had not found the video camera, he would have succeeded. The victim would have been

on video changing her clothes.” (2) “If the [D]efendant had been successful, [the camera]

would have caught [Victim], a thirteen year old minor, changing clothes.” (3) “He didn’t

even point [the camera] at the fish, he pointed it in a way where a little girl was going to

get naked. And that’s what he wanted to see.”39

Given the unsettled state of the law prior to Whited, the State’s arguments at trial

were not unreasonable. Nevertheless, they reveal the State’s original position, that the

evidence supported a finding that the Defendant attempted to capture the Victim in the

nude while changing clothes. We agree with the State’s position at trial—the evidence is

sufficient to show that the Defendant intended to record a video of Victim in the nude

while changing clothes. We do not agree, however, with the State’s position on appeal,

that there is sufficient evidence to find that the Defendant intended to record, or believed

he would record, anything more than that.

38

The dissent notes that “some courts have found [this type of material] to be even further along

the continuum towards lasciviousness and beyond mere voyeurism.” It ignores the fact, however, that our

own Court in Whited found this type of material, without more, to be insufficient for a finding of

lasciviousness.

39

The State did not argue at trial that the evidence showed that the Defendant had a “fixation” on

the Victim’s bed or that the Defendant had an intent and belief that he would capture a depiction of the

Victim engaged in “lustful” behavior.

- 30 -

Considering the record overall, we must conclude there is no evidence on which

the trier of fact could have relied to support a finding that the Defendant intended to

record on his camera anything more than the Victim engaging “in everyday activities

ordinarily performed nude,” or that he believed that he would record anything more, by

hiding the camera in the Victim’s bedroom. Whited, 506 S.W.3d at 447. While the

evidence was sufficient to support a conclusion that the Defendant’s conduct was

reprehensible and may have violated other criminal laws,40 it was insufficient to support a

conviction for attempted especially aggravated sexual exploitation of a minor.

CONCLUSION

We agree with the Defendant that the evidence in the record, even when viewed in

a light most favorable to the verdict, is insufficient to support his conviction for

attempted especially aggravated sexual exploitation of a minor. All other issues raised on

appeal are pretermitted. The conviction of Defendant David Scott Hall for attempted

especially aggravated sexual exploitation of a minor is reversed, and the case is

dismissed.

_________________________________

HOLLY KIRBY, JUSTICE

40

See Whited, 506 S.W.3d at 439 (discussing the lesser crimes of observation without consent

(Tenn. Code Ann. § 39-13-607(a)) and photography without consent (Tenn. Code Ann. § 39-13-605(a))

as compared to the child sexual exploitation statutes).

- 31 -