           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   August 19, 2014 Session

            STATE OF TENNESSEE v. THOMAS WILLIAM WHITED

                     Appeal from the Criminal Court for Knox County
                       No. 100430     Steven Wayne Sword, Judge




                     No. E2013-02523-CCA-R3-CD - Filed May 4, 2015



C AMILLE R. M CM ULLEN, J., dissenting.

        I must respectfully disagree with the conclusion reached by the majority. Let me
begin by recognizing that surreptitiously recording a minor in the privacy of her bedroom or
bathroom while she undresses is reprehensible, abhorrent, and criminal. See Tenn. Code
Ann. §39-13-605.1 However, whether this conduct rises to the level necessary to sustain the
convictions for especially aggravated sexual exploitation of a minor is another question. For
this offense, the State was required to show that the minor in the videos was engaged in
sexual activity. As applicable here, the statutory definition of sexual activity required the
State to prove that the video contained the lascivious depiction of the victim’s breasts,
buttocks, and/or genitalia. After applying the guidelines outlined in Dost and given the
below reasoning and authority, I am unable to conclude that the images depicted in the video
were lascivious. Therefore, I would reverse the convictions of especially aggravated sexual
exploitation of a minor in this case. In reaching this conclusion, I would apply the sixth Dost


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           Tennessee’s video voyeurism law provides,

       It is an offense for a person to knowingly [videotape] . . . an individual, when the
       individual has a reasonable expectation of privacy, without the prior effective consent
       of the individual, or in the case of a minor, without the prior effective consent of the
       minor’s parent[,] if the [videotape]: (1) [w]ould offend or embarrass an ordinary
       person if such person appeared in the [videotape]; and (2) [w]as taken for the
       purpose of sexual arousal or gratification of the defendant.

T.C.A. § 39-13-605 (2014).

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factor, whether the visual depiction is intended or designed to elicit a sexual response in the
viewer, objectively rather than subjectively, as this court previously held in State v. John
Michael Whitlock, No. E2010-00602-CCA-R3-CD, 2011 WL 2184966, at *7 (Tenn. Crim.
App. June 6, 2011) (reviewing whether a videotape constituted “lascivious exhibition” of a
girl’s pubic area and concluding that the sixth Dost factor must be analyzed objectively rather
than subjectively). Finally, because there is sufficient evidence for a reasonable jury to
conclude that the Defendant attempted to capture lascivious images on the video, I would
reduce his convictions to attempted especially aggravated sexual exploitation of a minor and
remand this matter to the trial court for re-sentencing.

       As an initial matter, I must take note that neither party addressed the appropriate
standard of review for this Court when determining whether an image is lascivious.
Tennessee has yet to squarely address the standard of review for determining whether an
image is lascivious in a case that challenges the sufficiency of the evidence. Some courts
review this issue de novo because it involves a pure question of law, see United States v.
Helton, 302 Fed. Appx. 842, 846 (10th Cir. 2008), while other courts review this issue for
“clear error” because it involves a mixed question of fact and law. See United States v.
Steen, 634 F.3d 822, 825-826 (5th Cir. 2011). In my view, the appropriate standard of
review for determining whether an image is lascivious is de novo because appellate review
primarily involves consideration of legal principles.

        As pointed out by the majority, there is very little Tennessee authority defining the
term “lascivious” for purposes of the especially aggravated sexual exploitation of a minor
statute. My conclusion is therefore guided by United States v. Mr. A., 756 F. Supp. 326
(E.D. Mich. 1991) and United States v. Vanderwal, 533 Fed. Appx. 498 (6th Cir. 2013). In
United States v. Mr. A., the defendants (a husband and wife) took various photos of their two
children, an 11 year old girl and 9 year old boy; a 10 year old neighbor girl; a 5 year old
niece; and a baby nephew. The 15 photos depicted one or more of the children partially or
fully nude in various positions which were specifically described by the court. The court
considered the Dost factors and held that the evidence was insufficient to prove that the
genitalia of the children in several photographs were “lasciviously exhibited.”
Notwithstanding the nudity and the odd positioning of the children, the court found the
evidence insufficient to prove that the genitalia of the children was “lasciviously exhibited;
that is to say, . . . photographed in a manner intended . . . to arouse or satisfy the sexual
cravings of a voyeur. . . . [or] for the purposes of [the defendants’] own sexual gratification.”
Id. at 329. The court noted that “nude and lascivious are not synonyms, and that something
more than distasteful and more than bad taste must be present for a conviction.” Id. Thus,
the court reversed the defendants’ convictions for sexual exploitation of a minor. Id.; see
also Rhoden v. Morgan, 863 F. Supp. 612, 621 (M.D. Tenn. 1994) (“Even depictions of
nudity involving a minor constitute protected expression absent a showing that the depictions

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are ‘in some significant way, erotic.’”) (citation omitted).

        In United States v. Vanderwal, 533 Fed. Appx. 498 (6th Cir. 2013), the defendant was
convicted of attempted sexual exploitation of a minor based on videos of two pre-pubescent
girls naked in the bathroom. Similar to the case sub judice, the defendant secretly filmed the
girls by placing a camera in the bathroom and aligned it to focus on the genital area of
someone standing at the sink. The shower curtain was clear plastic so one could see through
it to someone in the shower/bath. The defendant argued that the videos were not lascivious
because the Dost factors were not met, but the court rejected this argument because the
defendant was charged with attempted sexual exploitation of a minor. Thus, the court
reasoned, “[i]t is not necessary for the Government to prove that the videos [the defendant]
created were lascivious, only that he had the specific intent to create a lascivious video.” Id.
at 501. The court held that to prove the defendant’s intent to create the video, contextual
evidence is permissible and the limitations in the Dost test are not applicable. Therefore, the
court considered other evidence, including the defendant’s possession of other child
pornography, a sexual fantasy story that he wrote, and the way he aligned the camera in the
bathroom to capture the genital area of someone standing at the sink, to show that he
attempted to sexually exploit the girls. Id. at 502; see also, United States v. Sims, 708 F.3d
832, 835 (6th Cir. 2013) (holding that to convict the defendant of attempted production of
child pornography, the government need not prove the videos were actually lascivious, just
that he “specifically intended to obtain a lascivious image when he stood outside [the
victim]’s bedroom window with a video camera”).

      In this case, the table below details the specific images depicted in each of the videos
forming the basis of the Defendant’s especially aggravated sexual exploitation of a minor
convictions.


    EXHIBIT/COUNTS/                  TYPE OF NUDITY              DURATION OF NUDITY
      DURATION OF
        VIDEO

 Exhibit 16                      Victim in bathroom to take      16 seconds fully exposed
 Counts 1-2                      a shower; bra intermittently    breast; nude with back to
                                 obstructs view of camera.       camera before entering
 22 minutes and 57 seconds                                       shower; full view of breast
                                                                 for 10 seconds
                                                                 intermittently while victim
                                                                 puts on bra.

 Exhibit 17                      Victim in bedroom and           5 seconds of victim’s

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Counts 3-4                  removes top and bottom.        buttocks; partial breast then
4 minutes 29 seconds                                       full breast for 2 seconds.

Exhibit 18                  Victim in bathroom and         10 seconds fully exposed
Counts 5-6                  undresses to take a shower.    breasts; intermittent nudity
                                                           alternating front and back
15 minutes 5 seconds                                       views to the camera for 20
                                                           seconds until shower; after
                                                           shower 2 seconds full
                                                           nudity; intermittent 10
                                                           seconds partial breasts.

Exhibit 19                  Apparently showing the         No nudity shown in this
Counts 7 (attempt) Counts   victim’s bedroom; initially,   video.
8 & 9 (observation w/o      dark images are barely
consent)                    visible; victims are dressed
5 minute 35 seconds         in swimsuits; they change
                            into shorts but are either
                            covered while doing so or
                            out of the camera’s view.

Exhibit 20                  Victim’s bedroom.              No nudity shown in this
Counts 10-12                Showing both victims           video.
10 minutes 23 seconds       apparently in swimsuits or
                            underwear; they change
                            clothes but out of view of
                            camera.

Exhibit 21                  Victim is in the bathroom      33 seconds of fully
Counts 13-14                and undresses to take a        exposed breasts; 15
8 minutes 22 seconds        shower.                        seconds nude with back to
                                                           camera and intermittent
                                                           nudity.

Exhibit 22                  Victim in bathroom and         1 second nude with back to
Counts 15-16                undresses to take a shower.    camera; 2 seconds full
11 minutes 54 seconds                                      front breasts; intermittent
                                                           nudity for 20 seconds while
                                                           victim drapes/drys herself
                                                           with towel; 7 seconds
                                                           breast fully exposed.


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 Exhibit 23                      Nothing on video except         No nudity depicted.
 Count 17 (att. Observ. w/o      Defendant apparently in
 consent)                        victim’s bedroom
 10 minutes 54 seconds           arranging camera.

 Exhibit 25                      Victim in bathroom to take      Prior to shower partial
 Counts 18-19                    a shower; undresses with        breast is depicted for 12
 14 minutes 52 seconds           underwear on and back to        seconds; after shower side
                                 camera for 36 seconds; gets     view of naked body and
                                 into and out of shower;         back of victim for 14
                                 video wherein victim            seconds then covered by
                                 stands on stool or bathtub      towel; 2 second side views
                                 after shower; intermittently    of breasts; 20 seconds of
                                 elevated.                       intermittent full nudity.

 Exhibit 29                      Victim in bedroom; has          3 seconds of victim’s bare
 Counts 20-21                    back to camera; appears to      buttocks; no other nudity in
 7 minutes 20 seconds            put on bra without showing      remainder of video.
                                 breast.

        In this case, there is simply nothing lascivious or lewd about the conduct depicted in
the videos. See Rhoden, 863 F. Supp. at 618 (“[T]he term ‘lewd’ is no different than the
term ‘lascivious’ for the purposes of evaluating child pornography.”) (citations omitted).
Although the victims appear naked at various times as outlined above, they are not engaged
in any “sexual activity” as proscribed by the statute. The videos depicted the victims
undressing in a bedroom or naked before/after taking a shower. They were partially or fully
nude at various times during the process of changing their clothes. The victims were not in
a sexually suggestive location nor engaged in sexually suggestive behavior. Their nudity was
not inappropriate for the setting, and they were not posing in any particular way. In my view,
concluding that the images depicted in the video were lascivious renders the word
meaningless because the victims were engaged in everyday, ordinary behavior. Simply put,
I believe that the lascivious depiction of the victims’ breasts, genitalia, or buttocks requires
more than mere nudity, which is precisely the case here.

        In concluding that the images depicted in the videos are lascivious, the majority relied
upon Dost factors 1, 4, & 6. There is no question that Dost factor 4 applies because full or
partial nudity is shown in every video, except in exhibits 19 & 20. However, as agreed by
all, nudity alone does not support a finding of lasciviousness. Dost factor 1, whether the
focal point of the visual depiction is on the child’s genitalia or pubic area, in my view, does
not apply. The video reveals brief moments of the victims’ naked bodies without any


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emphasis on their pubic region or genitalia. This weighs against a finding of lasciviousness.
The majority places significance on the fact that the Defendant changed the position of the
camera to capture the images of the victim’s breast and genitalia. It must be pointed out that
in the first video from the bathroom, the Defendant was unsuccessful in obtaining any view
of the victim’s breast or genitalia. While it is clear that the Defendant changed the position
of the camera in an attempt to capture more of the victim’s naked body, the video remained
without a focal point, and there was no emphasis on the victim’s pubic area/breasts in the
way this factor has traditionally been applied.

         Dost factor 6, whether the visual depiction is intended or designed to elicit a sexual
response in the viewer, was applied subjectively by the majority. Under the subjective view,
it could be argued that in light of other evidence, the images depicted in the videos were
intended to elicit a sexual response in the viewer, the Defendant. However, such a broad
holding would make every photograph taken by a pedophile constitute the offense of
especially aggravated sexual exploitation of a minor, regardless of the innocuous character
of the photograph. As in Vanderwal, it seems clear that the Defendant was attempting to
create lascivious videos. However, the Defendant fell short of completing the offense of
especially aggravated sexual exploitation of a minor because the images in the video do not
depict the lascivious exhibition of the minor’s breasts, genitalia, or pubic area as required by
law. Because I would consider contextual evidence only to determine the Defendant’s intent
to create the video rather than whether the video image is itself lascivious, I would reduce
all of the Defendant’s convictions except Counts 7 and 10 to attempted especially aggravated
sexual exploitation of a minor based on his realignment of the camera to better capture the
victim’s genitalia as well as his statement that he had been molested as a child when he was
confronted by his wife with the videos. I would reverse and dismiss Counts 7 and 10 because
those videos did not depict any nudity.

       Accordingly, I would reverse and dismiss Counts 7 and 10. I would reduce all
remaining counts from especially aggravated sexual exploitation of a minor to attempted
especially aggravated sexual exploitation of a minor and remand this matter to the trial court
for resentencing.

                                                     ________________________________
                                                      CAMILLE R. MCMULLEN, JUDGE




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