State v. Whited
Annotate this CaseAfter a jury trial, Defendant was convicted of nine counts of especially aggravated sexual exploitation of a minor, thirteen counts of observation without consent, and other offenses arising from his hidden-camera videotaping of his twelve-year-old daughter and her teenage friend while they were in various states of undress. Defendant appealed his convictions for especially aggravated sexual exploitation and his sentence. The Court of Criminal Appeals affirmed, concluding that the hidden-camera videos constituted child pornography prohibited under the child sexual exploitation statutes. The Supreme Court reversed and dismissed Defendant’s convictions for especially aggravated sexual exploitation of a minor, holding (1) the use of the six specific factors set forth in United States v. Dost as a “test” or analytical framework in assessing whether material is prohibited under the three child sexual exploitation statutes is hereby rejected; (2) the material at issue must be evaluated based on what is depicted, without reference to the defendant’s subjective intent; and (3) under the correct framework, the videos taken by Defendant do not include a minor engaging in a lascivious exhibition, and therefore, the videos are insufficient to support Defendant’s convictions for especially aggravated child sexual exploitation.
Court Description:
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Steven Wayne Sword
A jury convicted the defendant on nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, thirteen counts of observation without consent, and one count of attempt to commit that offense. The convictions arose out of the defendant s hidden-camera videotaping of his twelve-year-old daughter and her teenage friend while they were in various stages of undress. The trial court sentenced the defendant to an effective sentence of twenty-two years. In a divided opinion, the Court of Criminal Appeals affirmed his convictions and sentence. In determining that the hidden-camera videos constituted prohibited child pornography under the child sexual exploitation statutes, the Court of Criminal Appeals relied in part on the six specific factors set forth in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), sometimes referred to as the Dost factors. The defendant now appeals his nine convictions for especially aggravated sexual exploitation of a minor, and he also challenges his sentence. We hold that, under the three child sexual exploitation statutes, Tennessee Code Annotated sections 39-17-1003, -1004, and -1005 (2014), the content of the prohibited material is judged by the same standard, regardless of whether the accused produced it, distributed it, or merely possessed it. In assessing whether material is prohibited under these statutes, we reject the use of the Dost factors as a test or an analytical framework. The material at issue must be evaluated based on what is depicted, without reference to the defendant s subjective intent, because the Tennessee statutes on the production of child pornography do not include the accused s subjective intent or purpose of experiencing sexual arousal or gratification as an element of the offense. Assessing the surreptitious videos taken by the defendant in the instant case, we conclude that the videos do not depict a minor engaged in sexual activity, defined by statute as the lascivious exhibition of a minor s private body areas. For this reason, the videos are insufficient to support the defendant s convictions for especially aggravated child sexual exploitation. Accordingly, we reverse and dismiss the defendant s convictions for especially aggravated sexual exploitation of a minor. In light of this holding, we remand to the trial court for resentencing based on the convictions that were not challenged on appeal. On remand, the State may, if it so chooses, retry the defendant on the lesser-included offense of attempt.
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