                                                                                          01/07/2019

                 IN THE SUPREME COURT OF TENNESSEE
                            AT KNOXVILLE

               STATE OF TENNESSEE v. DAVID SCOTT HALL
                       ___________________________________

                            No. M2015-02402-SC-R11-CD
                       ___________________________________


ROGER A. PAGE, J., with whom JEFFREY S. BIVINS, C.J., joins, dissenting.

      I maintain that the Court of Criminal Appeals properly affirmed the defendant’s
conviction for attempted especially aggravated sexual exploitation of a minor.

       As we held in State v. Whited, cited by the majority opinion, in child sexual
exploitation cases, an appellate court’s review of a lasciviousness determination is a
mixed question of law and fact, evidence of which must be viewed “in a light most
favorable to the verdict.” 506 S.W.3d 416, 427 (Tenn. 2016) (citations omitted). In
Whited, we explained that courts should use “commonsense observation of the particular
features of the subject materials” to identify “sexual activity” or lasciviousness. Id. at
437. “[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.

        In reversing Whited’s conviction for especially aggravated sexual exploitation of a
minor, this Court held that the videos of the teenage girls did not constitute a “lascivious
exhibition” of private body areas and, therefore, did not meet the statutory definition of
“sexual activity.” Id. at 447. In the Whited videos, the camera never focused on the
victims’ private areas, nothing indicated that the victims were “posed or coached,” and
“they [were] not in any unnatural or overtly sexual poses and appear[ed] unaware of the
camera.” Id. at 446. Thus, we concluded that, though the “question [was] close,” “the
minors in the videos are engaging in everyday activities that are appropriate for the
settings and are not sexual or lascivious within the ordinary meaning of those terms.” Id.
at 447. Still, we noted that “the depiction of the defendant setting up the hidden camera
portrays voyeurism and suggests a sexual connotation for the minor’s engagement in
everyday activities ordinarily done in the nude and in private,” which “move[s] the
perception somewhat further along the continuum in the direction of lasciviousness.” Id.
at 446.
       Despite the conclusion that the evidence was insufficient to support a conviction
for the completed crime, we determined that on remand, the State could retry the
defendant on attempted especially aggravated sexual exploitation of a minor, a lesser-
included offense, stating, “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.” Id. at 448 (citations omitted); see also 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) (citing Whited and modifying conviction for the completed
crime to attempted especially aggravated sexual exploitation of a minor where
defendant’s hidden camera captured him setting up the camera in victim’s bathroom and
the nude victim entering and exiting the shower).

        In the instant case, the Defendant did not successfully record a “lascivious
exhibition.” Consequently, he was not charged with the completed crime, but attempted
especially aggravated sexual exploitation of a minor.1 The pertinent question, therefore,
is whether the Defendant intended to capture a “lascivious” image and whether he
believed his placement of the camera in the victim’s bedroom would cause such an image
to be captured without further action by the Defendant. I reiterate that this is a question
of fact, see e.g., State v. Buggs, 995 S.W.2d 102, 107 (Tenn. 1999); State v. Brown, 311
S.W.3d 422, 432 (Tenn. 2010), for which “we give the State the strongest legitimate view
of the evidence,” Whited, 506 S.W.3d at 427. I also emphasize that the Defendant has
already been convicted, and because a conviction removes the presumption of innocence
that the Defendant enjoyed at trial and replaces it with one of guilt at the appellate level,
the burden of proof shifts from the State to the Defendant, who must demonstrate to this
Court 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)).


       1
           The attempt statute, as relevant to this case, defines criminal attempt as follows:

               (a) A person commits criminal attempt who, acting with the kind of culpability
       otherwise required for the offense:
               ....
               (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[.] .
       ..

Tenn. Code Ann. § 39-12-101 (2014).
                                                     -2-
        The Defendant adamantly argues that even if he had succeeded at his endeavor,
the resulting video would not constitute a “lascivious exhibition” and thus “sexual
activity.” However, the Defendant fails to recognize that while we cannot know what the
resulting video would have shown under different circumstances, the State is only
required to show the mental state for attempt. Because the Defendant was charged with
attempt, rather than the completed crime, we need only consider what the Defendant
“intend[ed]” or “believ[ed]” the video would show. Tenn. Code Ann. § 39-12-101(a)(2);
see also State v. Kimbrough, 924 S.W.2d 888, 890 (Tenn. 1996) (“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.” (citations and internal quotation marks omitted)).

        Viewing the evidence in the light most favorable to the State to determine whether
any rational trier of fact could have found that the Defendant intended or believed his
hidden camera would capture a lascivious exhibition and thus sexual activity, see Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 362
(1972), the proof showed that in the mornings before school, the victim routinely took a
shower, returned to her bedroom, and dressed for school in the open space between her
dresser and her bed. On the morning of May 18, 2010, the Defendant went into the
victim’s bedroom while she was showering and placed his digital camera on her dresser.
He turned the camera toward the area in which the victim would change clothes, made a
test video, and then meticulously adjusted the camera’s angle for several seconds before
using the victim’s clothes to conceal it. He then walked toward the victim’s bed twice,
“ruffled”2 through her clothes, and left the room. The resulting video focused in on the
victim’s chest as she approached her dresser, and the moment before she grabbed the

        2
            In criticizing the dissent’s recitation of the facts, the majority states that the description of the
Defendant “ruffling” through the clothes on the victim’s bed is not supported in the record. I respectfully
disagree. The video does not show the Defendant’s actions in this regard, but the record supports this
through the testimony of the victim. Seemingly discounting the victim’s testimony, the majority posits
that “our focus in evaluating lasciviousness must be on the images captured in the video.” Indeed, having
already concluded that the Defendant failed to complete the crime because the video did not, in and of
itself, rise to the level of lasciviousness necessary to support a conviction, our inquiry must necessarily
focus on the Defendant’s intent, of which his actions before beginning the video are relevant. A criminal
offense may, of course, be established exclusively by circumstantial evidence. State v. Sexton, 368
S.W.3d 371, 399 (Tenn. 2012) (citation omitted); see also State v. Echols, 382 S.W.3d 266, 283 (Tenn.
2012) (citing State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011) (“[T]his 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.”). “One’s actions are
circumstantial evidence of his intent.” State v. Brown, 311 S.W.3d 422, 432 (Tenn. 2010) (quoting State
v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)).
                                                     -3-
camera, her chest—though fully-clothed due to her quick discovery of the hidden
device—occupied the vast majority of the camera’s frame. Even before the victim
discovered the camera and approached the dresser, it was positioned so that only her
torso from her shoulders to her upper-thighs was visible and not her face.

        Afterwards, the Defendant gave multiple conflicting explanations for his recording
of the victim. By my count, the Defendant gave four separate explanations for his
conduct. First, on the morning of the incident, the Defendant claimed that he had not
been in the victim’s room at all that morning. Second, on the controlled telephone call
with the victim’s mother, the Defendant admitted that he had entered the victim’s
bedroom while waiting for the bathroom and that he must have forgotten his camera.
Third, in his 2014 letter to District Attorney General Victor Johnson, III, the Defendant
claimed that he entered the victim’s room to feed her fish when he noticed his
prescription sunglasses and, after looking around, his cellular telephone charger. He
contended that he became distracted and left his camera behind. Fourth, at trial, the
Defendant testified that he went into the victim’s room when he heard an alarm as he
passed by her open door. He noticed that the victim’s telephone was connected to his
charger and explained that he decided to feed the victim’s fish while he was there. He
testified that he then spotted his prescription sunglasses and forgot about the camera.

       This Court has previously explained that “while a defendant’s mental state is
rarely subject to proof by direct evidence, it is within the authority of the [factfinder] to
infer the defendant’s intent . . . from surrounding facts and circumstances.” State v.
Brown, 311 S.W.3d 422, 432 (Tenn. 2010) (citations and internal quotation marks
omitted). I maintain that giving the State the strongest legitimate view of the evidence,
including the Defendant’s lack of credibility, the proof outlined above supports a finding
that the Defendant intended to capture some sort of “lascivious exhibition” of the
victim’s private body areas. It was reasonable for the trial court to find that the
Defendant strategically placed and positioned his camera on the victim’s dresser and that
had the victim not discovered it, at a minimum, he believed he would have recorded a
video capturing the victim’s fully nude torso approaching her dresser.

       I also agree with the Court of Criminal Appeals that given the angle and strategic
placement of the camera on the victim’s dresser and the small size of her bedroom it is
likely “the focal point of the video would have been the victim’s private areas,” namely
her bare chest as she leaned over her dresser to reach for her clothing. State v. Hall, No.
M2015-02402-CCA-R3-CD, 2017 WL 1655616, at *8 (Tenn. Crim. App. May 2, 2017).
This is the type of material that some courts have found to be even further along the
                                           -4-
continuum towards lasciviousness and beyond mere voyeurism. See United States v.
Johnson, 639 F.3d 433, 440 (8th Cir. 2011) (considering, among other factors, that “[a]
reasonable jury could also have concluded that because the video clips show the females
generally from their shoulders to their calves, including their naked breasts in the frontal
views, that [the defendant] attempted to obtain images portraying them as sexual objects
and that their facial features were apparently of little or no importance”). As noted in
Whited, appellate courts from other jurisdictions have determined that hidden-camera
videos of nude minors constituted a “lascivious exhibition” because the camera focused
or “zoomed in” on the minor’s private body areas. Whited, 506 S.W.3d at 444, 446
(citing People v. Sven, 848 N.E.2d 228, 233 (Ill. App. Ct. 2006) (in which the focal point
of the tape made by the defendant was on the victim’s genitals); Asa v. Commonwealth,
441 S.E.2d 26, 29 (Va. Ct. App. 1994) (in which photos taken by the defendant contained
close-up views of the victim’s genitals)); see also, e.g., State v. Huffman, 847 N.E.2d 58,
70 (Ohio Ct. App. 2006) (upholding conviction under a similar statute due to “the
secretive nature of the videotaping and its blatant focus on the victim’s genitals”).

        In stressing the similarities between the facts of this case and the facts of Whited, I
believe that the majority does not give sufficient consideration to the most important
distinguishing factor: The defendant in Whited was charged with the completed crime of
especially aggravated sexual exploitation of a minor, while the Defendant in the case
before us was charged with the lesser-included offense of attempt. I again emphasize that
we cannot know for certain what the video in this case would have shown had the victim
failed to discover the hidden camera. Indeed, the Defendant may have intended
something far more sexualized. The problem I seek to illustrate is that the Defendant has
failed to carry his burden on appeal of showing that no rational trier of fact could have
found that the Defendant intended or believed his hidden camera would capture sexual
activity. I recognize that this case—not unlike Whited—presents a very close question.
However, under the particular facts presented here, the highly deferential standard of
review, and this “intensely fact-bound question,” I cannot agree with the majority’s
conclusion that the evidence was insufficient to support the Defendant’s conviction for
attempted especially aggravated sexual exploitation of a minor.

       For these reasons, I respectfully dissent from the majority’s decision.           I am
authorized to state that Chief Justice Bivins concurs in this dissent.


                                           _______________________________
                                           ROGER A. PAGE, JUSTICE
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