Court of Criminal Appeals of Tennessee, Knoxville
Session August 19, 2014.
Appeal from the Criminal Court for Knox County No. 100430 Steven Wayne Sword, Judge.
Mark Stephens, District Public Defender, Knoxville, Tennessee, for the appellant, Thomas William Whited.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Randy Nichols, District Attorney General; and Joanie Stewart and Philip Morton, Assistant District Attorneys General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which David A. Patterson, Sp. J., joined. Camille R. McMullen, J., filed a dissenting opinion.
JOHN EVERETT WILLIAMS, JUDGE.
Facts and Procedural History
This case arose after the defendant used his cell phone to secretly record his daughter, victim one,  in her bathroom and both victim one and her friend, victim two, in victim one's bedroom. The defendant recorded a series of eleven videos from June 21, 2012, to August 10, 2012.
On the evening of August 15, 2012, the defendant's wife saw a phone on her bedroom dresser that she believed belonged to her. She picked up the phone to charge it, and she realized that it was not her phone when she saw the screen saver. The phone belonged to the defendant, although he was not currently using the phone. She opened the photo gallery of the phone and saw pictures that she did not recognize. After going through the photographs, she realized that there was a video of the defendant setting up his phone to record a video of their daughter in the bathroom. She discovered multiple videos on the phone and asked the defendant for an explanation. When he offered none, his wife told him that he needed to leave the residence. The defendant told his wife that he was sorry and that both of his parents had molested him when he was a child. The defendant then left the residence and sat in his vehicle for several moments until his wife called him and told him that he needed to leave, and the defendant complied.
The next morning, the defendant was supposed to let victim one's brother take her to school. The defendant returned to the residence and would not allow victim one's brother to take her to school alone, so victim one's brother and the defendant took her to school. The defendant's wife informed her boss what she had discovered on the defendant's phone, and she then got in touch with police. She had the phone containing the videos with her, and she asked police to come to her work place. Police arrived, and the defendant's wife gave her consent for police to take the phone.
After watching the videos, the defendant's wife recognized that they were filmed in the guest bathroom and their daughter's bedroom. The children were the primary users of the guest bathroom, and victim one did not share her room with any of her siblings. The defendant's wife kept hand towels in a basket on the guest bathroom sink for the children to use, and the defendant hid the phone in this basket when recording victim one in the bathroom. The defendant's wife changed the towels about once a week and shortly before discovering the videos, she noticed that the towels had recently become disheveled. She thought that it was strange that the towels needed frequent straightening because the children did not usually take the time to remove a towel when they used it. The towels had fallen over to the point where it looked like items had been moved inside of the basket.
Cyber forensics investigator James Smithhart examined the defendant's phone and was initially unable to find any of the videos. However, he discovered that the videos were stored in the images folder, rather than the video folder of the phone. The default setting of the defendant's phone model was to save videos in the video folder and saving videos in the image folder required deliberate action by the user. He found eleven videos that matched the allegations made by the defendant's wife, nine of which provided the basis for the defendant's especially aggravated assault convictions.
The first video showed the defendant placing the camera in a basket on the bathroom sink to record the front of the shower. The defendant spent several minutes hiding and adjusting the camera, and at one point he stepped back toward the shower, appearing to gauge how the camera would depict someone in front of the shower. He was captured on film from his waist up. The victim entered the bathroom twenty seconds after the defendant left. As she removed her clothes, she was facing the camera. The camera was positioned to depict the victim from the top of her pubic area to the top of her head. Several times throughout the video, the victim stood in front of the camera, and her breasts were in the center of the recording. Her buttocks and breasts were also visible when she entered the shower. After she exited the shower, she was inches away from the camera, and her right breast was again in the center of the recording as she styled her hair.
In the second video, the defendant hid the camera in victim one's bedroom, and the camera was aimed at the center of the bedroom. The positioning of the camera made a person standing in the center of the room the primary focus of the recording. The victim entered the bedroom less than one minute after the defendant hid the camera. The buttocks of one of the victims was visible as she changed out of a swimsuit, and her breasts were visible as well. The defendant retrieved the camera one minute after the victim exits the bedroom.
In the third video, the defendant placed the camera in the bathroom, and the victim entered two minutes later. When the victim was standing in front of the mirror, the position of the camera framed the victim from her pubic area to the top of her chin, capturing less of her face than the first recording did. The victim's breasts were visible as she stood in front of the camera, and her breasts, buttocks, and pubic area were briefly visible as she stepped in and out of the shower. The victim's breasts were intermittently visible as she stepped in and out of frame, and the top of her pubic area and her breasts were visible as she stood in front of the sink for a period of time.
The next relevant video was recorded in victim one's bedroom. Both victims entered the bedroom wearing swimsuits less than one minute after the defendant hid the camera. The recording showed victim two's breast as she stands in the center of the room changing her clothes. The defendant returns for the camera less than thirty seconds after the victims left the room.
In the next video, the defendant entered the bathroom while the victim was already in the shower. He used an object to position and hide the camera. The defendant positioned the camera toward the rear of the shower, instead of toward the front as he did in the previous two videos recorded in the bathroom. The video captured the victim's breasts and buttocks as she exited the shower. Her breasts were also at the center of the frame as she stood in front of the camera drying off. The defendant entered the bathroom and collected the camera thirty seconds after the victim exited the bathroom.
In the sixth video, the defendant again aimed the camera toward the rear of the shower. Twenty seconds later, the victim entered the bathroom, and the defendant told her to get into the shower. The victim's breasts, buttocks, and the top of her pubic area were briefly visible when she stepped into the shower. The victim's breasts were again seen as she exited the shower and visible while she dried off in front of the camera. The defendant retrieved the camera three minutes after the victim left the bathroom.
In the next video, the defendant repositioned the camera to record the middle of the shower. The victim entered the bathroom three minutes later, and her breasts were briefly visible. The recording showed the victim in her underwear as she maneuvered to turn on the shower. Her breasts and buttocks were visible as she exited the shower, and the profile of her breast, buttocks, and pubic area were intermittently visible as she dried off and moved about the bathroom.
In the eighth video, the defendant hid the camera and pointed it toward the middle of the shower. Forty seconds after the defendant finished adjusting the camera, the victim entered the bathroom. 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.
In the final video, the defendant hid the camera in victim one's bedroom, and the victims entered the bedroom six seconds after he positioned the camera. One of the victims asks what he is doing in the room, and he replied that he was looking for markers. The camera was pointed toward the center of victim one's bed, and victim one's right breast was briefly visible as she changed out of her swimsuit. The camera then showed victim one's buttocks as she continued to change her clothes.
Both victim one and victim two were unaware that the defendant was secretly filming them. Both victims were distraught at the thought of the defendant recording them because he was victim one's father, and victim two viewed him as a father figure.
At the conclusion of the State's proof, defense counsel asked for a special jury instruction that defined the word "lascivious." The trial court denied the request, finding that it could place an unfair burden on the State to prove factors that were not a part of the statute. The trial court also denied the defense's request to include the instruction that photography of an undressed minor by itself was insufficient to sustain a conviction for especially aggravated sexual exploitation for a minor. At the conclusion of the proof, the jury found the defendant guilty of nine counts of especially aggravated sexual exploitation of a minor, thirteen counts of observation without consent, one count of attempted especially aggravated sexual exploitation of a minor, and one count of attempted observation without consent.
At the sentencing hearing, both victims and victim one's mother read their victim impact statements aloud to the court. In her statement, victim two mentioned that she had been receiving outpatient therapy and that at one point she had attempted to physically harm herself. In response to a question by the prosecutor at the conclusion of her statement, victim two stated that she attempted to harm herself due to the depression that she experienced as a result of the defendant's crimes. The trial court did not permit defense counsel to cross-examine any of the witnesses. The parties agreed that the defendant was a standard, Range I offender, and the court found that several enhancement and mitigating factors were applicable. The court gave great weight to enhancement factor fourteen, abuse of a position of public or private trust, because the defendant used his position as a father to victim one and a father figure to victim two to facilitate his crimes. The court found that the fact that the defendant's actions did not threaten or cause serious bodily harm slightly applied as a mitigating factor. The court also found the defendant's lack of a prior criminal history to be a mitigating factor, along with his military history and steady work history. In considering consecutive sentencing, the court found that the defendant did commit two or more statutory offenses involving sexual abuse of a minor where the aggravating circumstances arose from the relationship between the defendant and the victims.
The trial court sentenced the defendant to serve twelve years for the first especially aggravated sexual exploitation of a minor conviction and to serve ten years for each of the remaining especially aggravated sexual exploitation of a minor convictions. The trial court also sentenced the defendant to serve six years for the attempted especially aggravated sexual exploitation of a minor conviction, eleven months and twenty-nine days for each of the observation without consent convictions, and six months for attempted observation without consent, all to be served concurrently to the twelve-year sentence for especially aggravated sexual exploitation of a minor. The court ordered the defendant to serve one of the ten-year sentences for especially aggravated sexual exploitation of a minor consecutively to the twelve-year sentence for especially aggravated sexual exploitation of a minor for an effective sentence of twenty-two years.
I. Sufficiency of the Evidence