          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                           AUGUST SESSION, 1998         October 13, 1998

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,               )   C.C.A. NO. 01C01-9802-CC-00085
                                  )
            Appellee,             )
                                  )   ROBERTSON COUNTY
V.                                )
                                  )
                                  )   HON. JOHN H. GASAWAY, III, JUDGE
LARR Y DIXO N,                    )
                                  )   (ESPECIALLY AGGRAVATED SEXUAL
            Appe llant.           )   EXPLOITATION OF A MINOR)



FOR THE APPELLANT:                     FOR THE APPELLEE:

MICHAEL R. JONES                       JOHN KNOX WALKUP
District Public Defender               Attorney General & Reporter
110 Sixth Avenue, West
Springfield, TN 37172                  KAREN YACUZZO
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       JOHN WESLEY CARNEY, JR.
                                       District Attorney General

                                       DENT MORRISS
                                       Assistant District Attorney General
                                       500 South Main Street
                                       Springfield, TN 37172




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
      The Defe ndan t, Larry D ixon, ap peals as of rig ht his co nviction of esp ecially

aggravated sexual exploitation of a minor. He was convicted following a bench trial

in the Robertson County Circuit Court. The trial court subsequently sentenced

Defendant to ten (10) years a s a Ra nge I S tanda rd Offe nder. In this ap peal,

Defen dant raise s the follow ing issue s:

              (1) Wh ether the trial court erred in finding that the vide o in
              question depicted sexual activity under Tennessee Code
              Anno tated sec tion 39-1 7-1002 and -10 05;

              (2) Whether the trial court erred in finding Defendant’s
              conduct involved promotion or use of children under the
              aforem entione d statute;

              (3) Wh ether the statutory prohibition against “lascivious
              exhibition of the female breast or genitals or pubic area of
              any person” is unconstitutionally vague; and

              (4) Wh ether the trial court erred in sentencing Defendant
              to serve te n years in confinem ent.


We affirm the ju dgme nt of the trial co urt.


       The facts presented at trial revealed that during the summer of 1996,

Defendant and Deborah Presson were living together in an apartment in Springfield,

Tennessee. A two-way mirror had been installed in the apartment which allowed

someone in Defendant’s bedroom closet to view a person in the bathroom without

the knowledge of that person.



       Deborah Presson’s sister, Paula Harris, testified that during a visit to her

sister, she discovered the two-w ay mirror w ith a video camera set up behind it. Ms.

Harris subsequently returned to the apartment, searched it, and found a video of two



                                             -2-
young girls taking a bath together. The video includes closeups of one of the young

girl’s breasts and pubic area. Ms. Harris took the tape and called the police.



      The police eventu ally discovered that the girls were the daug hters o f Dixon ’s

former neighbors and that the girls would occasionally visit Defendant and Ms.

Presson. Since the victims are minors, they will be referred to by the ir initials only.

A.H. was twelve yea rs old at the time of the offense a nd her s ister, C.H., w as ten

years old. Ms. Presson, who was indicted as well, testified against Defendant at trial

and said that it was Defendant who set up the came ra to video A .H. an d C.H . while

they were bathing. Ms. Presson furth er testified that Defend ant urged he r to have

A.H. pose as if she were taking her picture so that he could “see what he nee ded to

see.” Ms. Presso n said that De fendant watc hed the video of the minors b efore

having sex with her (Presson). A.H. testified that she was unawa re that she was

being videotaped while she was in the bathtub.



                                           I.



      Tennessee Code An notated section 39-17-1005 provides in part as follows:

             (a) It is unlawful for a person to knowingly promote,
             employ, use, assist, transport or permit a minor to
             participate in the performance or in the production of
             material which includes the minor engaging in: (1) Sexual
             activity.


Tenn. Code Ann. § 39-17-1005(a)(1). The pertinent definition of “sexual activity” as

applied to the facts of this case is the “[l]ascivious exhibition of the female breast or

the genitals or pu bic area of any p erson.” Ten n. Code A nn. § 39-17-1 002(7)(G).




                                           -3-
       Defendant argues that the video in question does not involve s exual ac tivity

since it only involves two minor g irls taking a b ath toge ther. How ever, we a gree with

the State’s positio n that th is goe s well beyond the innocent videotaping of two young

girls frolicking in the bath tub. This v ideo g oes b eyond the bo unds of dec ency a s it

involves the coaxing of young girls to pose for an imaginary camera as well as

footage in which Defendant focuses specifically on the breasts and pubic area of

A.H.



       Tennessee case law ha s not s pecific ally addressed the meaning of lascivious

exhibition as it relates to Tennessee Code Annotated section 39-17-1005. However,

the United States District Court for the Middle District of Tennessee acknowledged

that the determinative test for asse ssing whether a visual depiction of a minor

involves the lascivious exhibition of genita ls was developed in United States v. Dost,

636 F. Supp . 828 (S.D . Cal. 198 6), aff’d sub nom. United States v. Wiegand, 812

F.2d 1239 (9 th Cir. 198 7), cert. denied, 484 U.S. 85 6, 108 S . Ct. 164, 98 L. Ed. 2d

118 (1987). See Rhoden v. Morgan, 863 F. Supp. 612, 619 (M.D. T enn. 19 94), aff’d,

97 F.3d 1452 (6th Cir. 19 96), cert. denied, 117 S. Ct. 1448, 137 L. Ed. 2d 553

(1997). In Dost, the court listed at least six factors for a trial court to consider in

determining whether or not a vis ual depiction of a minor constitutes a “lascivious

exhibition of the genitals or pubic area.” 636 F. Supp. at 832. Such factors included

in Dost are:

               (1) whether the focal point of the visual depiction is on the
               child’s genitalia or pubic area;

               (2) whether the setting of the visual depiction is sexuall y
               suggestive, i.e., in a place or pose generally associated
               with sexual activity;

               (3) whether the child is depicted in an unnatural pose, or
               in inappropriate attire, considering the age of the child;

                                            -4-
              (4) whether the child is fully or partially clothed, or nude;

              (5) whether the visual depiction suggests sexual coyness
              or a willingness to en gage in sexu al activity;

              (6) whether the visual depiction is intended or design ed to
              elicit a sexual respon se in the viewer.


Id.


       The Dost court further noted that a visual depiction “need not involve all of

these factors to be a ‘lascivious exhibition of the genitals or pubic area.’           The

determ ination will have to be m ade b ased on the overa ll conte nt of the visual

depiction, taking into a ccount the ag e of the mino r.” Id.



       Defendant argues that the filming of the two girls bathing does not fall under

the Tennes see statutory de finition of sexual activity. However, we find at least four

of the six Dost factors to be present in this case . First, Defendant focuses the

camera on the br easts an d pubic a rea of A.H . during certain portions of the tape.

Second, Ms. Presson encouraged A.H. to pose for a pretend camera. These poses

were not natural for a youn g child to be d oing w hile tak ing a b ath. T hird, bo th girls

were nude. F inally, acco rding to M s. Press on’s testim ony, De fendant viewed the

videotape before enga ging in sexual relation s with her. This supports the argument

that the vide o was inte nded to elicit a sexua l respons e in the view er. Based on all

the foregoing, the video in question clearly falls within the “sexual activity” definition

found in T ennes see Co de Ann otated se ction 39-1 7-1002 (7)(G).



                                             II.




                                            -5-
       In its Verdict and Orde r, the trial court found the elements of the convicting

offense, espe cially aggravated sexual exploita tion of a mino r, unde r the fac ts of this

case to be as follows:

              (1) that the defendant did promo te, use or permit a minor
              to participate in the performance or in the production of
              material which includes the minor engaging in sexual
              activity, and

              (2) that the defend ant acted kno wingly.


See Ten n. Co de An n. § 39 -17-1 005(a )(1) (em phas is added). Th e court went on to

list the relevant definitions in part as follows:

              (1) “Prom ote” mean s to financ e, produce, direct,
              manu facture, iss ue, pub lish, exhibit or advertise.

              (2) “Material” means any picture, drawing, photograph,
              motion picture film, videocassette tape or other pictorial
              representation.


See Tenn. C ode Ann . § 39-17-100 2(5) and (2)(A ) (empha sis added).



       Defendant argue s that h is conduct, as to th e video at issue , does not fall

under the statutory definition of promote.           First, under the facts of this case,

Defe ndan t’s operation of the video camera to film the gir ls in the bathtub involved

production of a tape. D efenda nt, in dispu ting the application of “promote,” groups

“produce and d irect” tog ether to sugg est tha t the ch ild must be a knowing participant

in the activity. See Tenn. Code Ann. § 39-17-1002(5). However, as emphasized

above, the definition of “promote” uses the term “or” to separate the kinds of actions

which fall within its statu tory definition .     In the ins tant ca se, De fenda nt clea rly

produc ed a tap e which comp lies with the s tatutory de finition of “prom ote.”




                                            -6-
       Further, Defendant implies that “exhibit” applies to material being shown to

others. Howe ver, this ass umption is m isplaced as this Court in State v. Falin

recognized that the statute is intended to apply to both commercial and non-

commercial uses. C.C.A. No. 03C01-9210-CR-00340, Sevier County (Tenn. Crim.

App., Knoxville, Ju ne 22, 1 993), perm. to appeal denied (Tenn . 1993). Ms. Presson

testifie d that Defendant produced and viewed the video in order to satisfy his own

sexual d esires. T his issue is without m erit.



                                            III.



       Defendant argues that the word “lascivious” is unconstitutionally vague under

the statute and as applied by the trial court. Again , the sta tute do es no t spec ifically

define the word “lascivious ” but the trial co urt defined “lascivious ” as “tend ing to

excite lust; lewd; inde cent.” W e are req uired to construe criminal statutes according

to the “fair import of their terms.” Tenn. Code Ann. § 39-11-104. That construction

requires reference to “judicial decisions and common law interpretations, to prom ote

justice, and effect the objectives of the criminal code.” Tenn. Code Ann. § 39-11-

104.   Among the most prominent of the tenets of statutory construction is the

requirement that courts must construe s tatutes so as to g ive effect to legislative

intent. See, e.g., Wilson v. Johnson County, 879 S.W .2d 807, 709 (Tenn. 199 4).

That intent is to be determined by the natural and ordinary meaning of the language.



       Congress substituted the term “lascivious” in place of “lewd” in the federal

statute dealing with the protection of children. 18 U.S.C.A. § 2256(2)(E). In doing

so, Cong ress ack nowled ged tha t “‘[l]ewd’ has in the past b een eq uated w ith

‘obsc ene’; this change is thus intended to make it clear that an exhibition of a ch ild’s

                                            -7-
genitals does n ot have to meet the obscenity standard to be unlawful.” 130 Cong.

Rec. S3510, S 3511 (daily ed. M ar. 30, 1984) (state ment of Se n. Specter).

“‘Lascivious’ is no different in its meaning than ‘le wd,’ a commonsensical term whose

constitution ality was specifically upheld in Miller v. Califo rnia [citations omitted] and

New York v. Ferber [citation s om itted].” Weigand, 812 F.2d 12 39 (9th Cir. 1987 ),

cert. denied, 484 U.S . 856, 108 S. Ct. 164 , 98 L. Ed . 2d 118 (1987). F urther, our

supreme court has also noted that definitions in this State’s obscenity statutes,

including the “lewd exhibition of the genitals,” were written to comply with the

language approved in Miller v. California (citation omitted) . See Taylor v. S tate, 529

S.W .2d 692 , 696-97 (Tenn . 1975).



       Defendant also argues that Tennessee Code Annotated section 39-17-1002

does not give fair warning to people of common intelligence as to the meaning of

“lascivious .” However, this Court has previously stated that the use of the words

“lewd, lascivious, and obscene” are sufficient descriptions to put ordinary persons

of common intelligence on notice as to wha t condu ct is prohib ited. State v. Carter

687 S.W.2d 292 (Tenn. Crim. A pp. 198 4), perm. to appeal denied (Tenn. 198 5).

Further, in State v. Falin, this Court upheld the constitution ality of Tennessee Code

Annotated section 39-17-1005, specifically stating that “[a]ll the terms in the statute

can be und erstood by their com mon u sage, e xcept perhaps fo r ‘prom ote’ wh ich is

defined in § 37-17 -102(5) [s ic].” C.C.A. No. 03C01-9210-CR-00340, slip op. at 4.

W e find that the word “lascivious” in the statute is not unconstitutionally vague, and

thus, De fendan t’s issue is w ithout me rit.



                                            IV.




                                            -8-
         Defendant argues that the trial court did not give appropriate weight to the

mitigating factor of no prior criminal history, and that he is entitled to an alternative

sentence.



         When an accused challenges the length, range, or the manner of service of

a sentence, this court has a duty to conduct a de novo review of the senten ce with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative

showing in the re cord th at the tria l court considered the sentencing principles and

all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).



         In conducting a de novo review of a senten ce, this Court m ust consider the

evidence adduc ed at trial an d the sen tencing h earing, the presen tence re port, the

principles of sen tencin g, the a rgum ents o f coun sel relative to sentencing

alternatives, the nature of the offense, and the defendant’s potential for

rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955-

56 (Tenn . Crim App . 1996).



         If our review reflects tha t the trial court fo llowed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and that

the trial court's findings of fact are adequately supported by the record, then we may

not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,

we find that the trial court considered the proper s entenc ing princip les and s tated its

                                            -9-
reasons and fin dings on the record . Ther efore, r eview by this court is de novo with

a presumption of correctness.



       The trial court foun d the follow ing enh ancem ent factors to be app licable to

Defendant’s sentence:

              (1) Defendant was a leader in the commission of an
              offense involving two (2) or more criminal actors;

              (2) The offense involved more than one victim; and


              (3) Defe ndant a bused a position of private trus t.



Tenn. Code Ann. § 40-35-114(2), (3) and (15). As a mitigating factor, the co urt

found Defenda nt’s lack of a criminal record to apply. Tenn. Code Ann. § 40-35-

113(13).



       Defendant was convicted of a Class B felony as a Range I Standard O ffender.

The sentencing ra nge for a Range I Standard Offender convicted of a Class B felony

is not less than eight (8) years nor more than twelve (12) years. Tenn. Code Ann.

§ 40-35-112 (a)(2).     The presumptive sentence for a Class B felony shall be the

minimum sentence in the range if there are no enhancement or mitigating factors.

Tenn. Code Ann. § 40-35-210(c). Should there be enhancement and mitigating

factors, the court must start at the minimum sentence in the range, enhance the

sentence within the range as appropriate for the enhancement factors, and then

reduce the sentence within the range as appropriate for the mitigating factors. Tenn.

Code Ann. § 40-35-210(c).          If the trial judge complies with the purposes and

principles of sentencing and his findings are adequately supported by the record,

then the weigh t assigne d to the ex isting enh ancing and m itigating fac tors is g enera lly

                                            -10-
left to his or her discretion. See State v. Mars hall, 870 S.W.2d 532, 541 (Tenn.

Crim. App.), perm. to appeal denied (Tenn. 1993). The trial court in the case sub

judice, imposed a ten (10) year sentence for the Class B felony conviction. The trial

court did co nside r the m itigating factor in this cas e, but in light of a ll the evidence

presented at trial, that mitigating factor did not weigh heavily against the

enhancement factors.       Ev en if som e eviden ce of m itigation exists , where the

mitigation factors are strongly ou tweighe d by the e nhanc emen t factors, the

maximum sentence may be warrante d. See State v. Ruane, 912 S.W.2d 766, 785

(Tenn. Crim. App. 1 995).         T he gre at weig ht attribu able to the ap plicab le

enhancement factors more than justifies the less than maximum ten (10) year

sentence imposed in this case.



       Defendant also sug gests tha t he is entitled to be plac ed on p robation.

Howeve r, because the trial court justifiably imposed a sentence in excess of eight

years, as previously discussed, Defendant is not eligible for probation. Tenn. Code

Ann. § 40-35-303(a). Furthermore, Defendant offered no persuasive argument a t

the sente ncing hearing as to why pro bation, or any othe r type of alternative

sentence, would be appropriate in this case. We find that the trial court was correct

in ordering a senten ce of total co nfinem ent. This issue is with out me rit.



       Based on all the foregoing, the judgment of the trial court is affirmed.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:

                                            -11-
___________________________________
JOHN H. PEAY, Judge


___________________________________
L. T. LAFFERTY, Special Judge




                               -12-
