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State v. Whited

Supreme Court of Tennessee, Knoxville

November 7, 2016

STATE OF TENNESSEE
v.
THOMAS WHITED

          Session January 27, 2016

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

          Mark E. Stephens, District Public Defender, and Jonathan P. Harwell, Assistant Public Defender (on appeal); and Robert C. Edwards, Assistant District Public Defender (at trial), for the appellant, Thomas Whited.

          Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Andrew C. Coulam, Assistant Attorney General; Randall E. Nichols, District Attorney General; Joanie Stallard Stewart and Philip Morton, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Holly Kirby, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Sharon G. Lee, JJ., joined.

          OPINION

          HOLLY KIRBY, JUSTICE

         Factual and Procedural Background

         On a number of occasions in June, July, and August 2012, Thomas Whited ("defendant") hid his cell phone in the bedroom and bathroom used by his twelve-year-old daughter ("Daughter") so as to secretly video Daughter and her fourteen-year-old friend ("Friend") in various stages of undress. In the bathroom, the defendant positioned his cell phone to video Daughter while she was partly to fully nude as she prepared for her shower and performed after-shower bathroom activities. In Daughter's bedroom, the defendant hid his cell phone just before Daughter and Friend entered the bedroom in their bikini swimsuits so as to secretly video them as they changed into dry clothes.

         On August 15, 2012, the defendant's wife ("Wife") saw a cell phone on their bedroom dresser and mistakenly thought it was hers. She picked up the phone, opened the photo gallery, and discovered the videos the defendant had made of Daughter and Friend. That evening she confronted the defendant, and the next day she reported his conduct to the police. The defendant was soon arrested.

         In October 2012, a Knox County Grand Jury charged the defendant on thirty-eight counts: (a) nine counts of especially aggravated sexual exploitation of a minor in violation of Tennessee Code Annotated section 39-17-1005, a Class B felony;[1] (b) one count of attempted especially aggravated sexual exploitation of a minor in violation of the same section; (c) thirteen counts of unlawful photography without consent in violation of Tennessee Code Annotated section 39-13-605, [2] a Class A misdemeanor;[3] (d) one count of attempted unlawful photography in violation of the same section; and (e) fourteen counts of observation without consent in violation of Tennessee Code Annotated section 39-13-607, [4] a Class A misdemeanor.[5]

         In April 2013, the State voluntarily dismissed the fourteen charges of unlawful photography. The unlawful photography statute includes an exception for photography of a minor when a parent has consented; the parties indicated at oral argument that the unlawful photography charges in this case were dropped because the defendant is Daughter's parent.[6] See Tenn. Code Ann. § 39-13-605(a). This left for trial a total of twenty-four counts-nine counts of especially aggravated sexual exploitation, one count of attempted especially aggravated sexual exploitation, and fourteen counts of observation without consent.

         The two-day jury trial began on July 29, 2013. The jurors heard testimony from Daughter, Friend, and Wife.

         At the time of trial, Daughter was thirteen years old and lived with her mother and her twin brother. She attended a neighborhood middle school and was involved in orchestra, soccer, track, and cross country.

         Daughter understood that she was testifying in court because her father had videotaped her without her knowledge. Before the videotaping, Daughter said, she and the defendant had a good relationship. After the videos were discovered, Daughter had only occasional contact with the defendant, and he sent her one text message telling her that he was sorry for secretly videotaping her. By the time of trial, she had no relationship with him at all; Daughter commented that the defendant had "wasted" their relationship by taking the surreptitious videos.

         In her testimony, Daughter confirmed that she did not give the defendant permission to videotape her. She had not seen the videos, but she understood that they were taken while she was naked. Daughter testified that she never wanted to see the videos and that she did not want other people to see them. Daughter had not discussed the videos with the defendant.

         At the time Friend testified, she was fifteen years old and attended a neighborhood high school. She said that she and Daughter had been friends their entire lives and had always lived close to each other. Friend described them as "inseparable"; she and Daughter often spent the night at each other's homes and swam, cooked, and played soccer together. Prior to the videotaping incident, the defendant was sometimes present when Friend was at Daughter's home. Friend said that she occasionally went with Daughter and the defendant to the local flea market where the defendant sometimes worked. She said that Wife was like another mother to her and, before the videos were discovered, the defendant had been like another father to her.

         Friend knew that she was testifying at trial because the defendant had videotaped her without her permission. She understood that the defendant had hidden a cell phone in Daughter's bedroom on occasions when she and Daughter were in there changing clothes. She confirmed that she never gave the defendant permission to videotape her. Asked how learning of the videos had made her feel, Friend responded, "Like crap." Friend felt "betrayed" by the defendant. She emphasized, "I never want to see him again."

         Wife testified as well. As background, Wife testified that she and the defendant married in 1997. During the course of their marriage, the defendant had worked as a security officer for a hospital, had worked for KB Toys and other retail stores, and had sometimes worked as a certified nursing assistant. He also owned a business that sold vintage toys. The defendant was a member of the Army National Guard, trained as a combat medic; he was deployed to Iraq in 2010. Wife had worked for an orthopedic surgery center for some time, and she was still working there at the time of trial.

         For the most part, Wife said, they had a good marriage. After an episode in which Wife was unfaithful in 2009, they discussed divorce, but she felt that the marriage had recovered and that everything was fine until she found the hidden-camera videos.

         Wife testified about the night she found the videos on the defendant's cell phone. She said that, around 10:30 p.m. on the evening of August 15, 2012, she noticed a cell phone on the bedroom dresser. It was an old phone, one that looked like her own cell phone. Believing it to be hers, Wife picked it up to charge it for the night. When the phone did not show her screensaver, she opened the photo gallery and noticed some pictures that she could not see very well. Eventually she realized that they were not photos but videos, and they showed the defendant setting up his cell phone to take videos of Daughter.

         Once Wife realized what had been going on, she looked at the first video and the last video to try to determine how long the defendant had been videotaping Daughter. The children were home that evening, so Wife waited for the defendant to come back into their bedroom to talk to him about the videos she had discovered. When she asked the defendant about them, he gave her no explanation.

         Wife told the defendant to leave the home. The defendant responded, "I'm sorry." He told Wife that both of his parents had molested him as a child; Wife had never heard that before. Wife kept the cell phone with the videos, and the defendant left. He first went out to his car and sat there for a bit. Finally, Wife called the defendant's cell phone (a different one) and asked him to leave so that she could go to bed.

         The next day, Wife testified, the defendant came back to their house to take Daughter to school; her older child rode to school with them. That afternoon, Wife called the police from her work and reported the videos. In response, police officers came to Wife's workplace, where she gave them the cell phone that contained the videos. Later, the police came to their house and retrieved the home computer, a laptop computer, a video recorder, and some other cell phones.

         Wife testified that she could tell from watching the videos that they had been filmed in Daughter's bedroom and in their guest bathroom, which Daughter used. For the trial, Wife made a video of herself going through the house, and she used the video to demonstrate the location of everything depicted in the hidden-camera videos taken by the defendant. Wife's video showed the master bedroom and the basket where all their old phones were kept, which is where she found the phone containing the defendant's videos. She showed where she believed the defendant hid his cell phone video camera in the bedroom and bathroom. Wife said that, when she discovered the defendant's hidden-camera videos, she recalled that she had recently noticed that the towels in the bathroom basket were disheveled and that something in the basket had been moved. She noted that the shower/bathtub in the bathroom used by Daughter is directly in front of the vanity and that the shower curtain is opaque.

         Wife described Daughter as an outgoing child, sweet, intelligent, and well-behaved. She said that Friend came to their house often and spent the night; she and Daughter listened to music, took selfie pictures, and generally acted silly together.

         On cross-examination, Wife testified that, when the defendant returned from his deployment in Iraq, he sporadically took testosterone treatments. At the time, the defendant was having trouble performing in the marriage, so Wife encouraged the treatments. Wife had been unhappy with the defendant's income and wanted him to find a more regular job.

         The jury also heard testimony from James Smithhart, a cyber forensics investigator with the Knox County Sheriff's Office. Mr. Smithhart testified as a fact witness and also as an expert in digital forensics in the sexual exploitation of minors. He, along with another detective, met with Wife at her workplace the day after she discovered the videos on the defendant's cell phone. Wife gave consent for Mr. Smithhart to take the cell phone and extract the videos that the defendant had taken of the two victims.

         When Mr. Smithhart processed the defendant's cell phone, he discovered eleven videos that matched Wife's allegations. He said that the videos were created on various dates starting on June 21, 2012, and ending on August 10, 2012. Mr. Smithhart said that the videos had been deliberately moved out of the cell phone's default video folder and into an images folder; the user must take an extra step to do this. Mr. Smithhart put all of the videos on separate DVDs for trial; they were marked as Exhibits 16 through 26. For expediency, he "fast-forwarded" portions of the videos that showed no activity. Mr. Smithhart was able to determine the last date on which each video was accessed, but most of them had last been accessed on August 15 and 16, after Wife discovered them. Two of the videos not accessed by Wife had last been accessed on July 24, 2012. On cross-examination, Mr. Smithhart testified that law enforcement seized all of the defendant's other digital devices, including a laptop computer, a desktop computer, and other cell phones, and he found no inappropriate videos or images on those devices.

         All eleven videos were played for the jury. Nine of them were proffered to support the nine charges of especially aggravated sexual exploitation.

         After the State rested, the trial court denied the defendant's motion for a judgment of acquittal. The defendant elected not to testify. He presented no evidence at trial.

         In the jury instructions, the trial court read the jury the statutory language for the offenses charged. The court then explained to the jury that, to find the defendant guilty of especially aggravated sexual exploitation, the State had the burden to prove that (1) the defendant used a minor to participate in the production of material which includes a minor engaging in sexual activity and (2) that the defendant acted knowingly. See Tenn. Code Ann. § 39-17-1005. The trial judge read all of the statutory definitions of "sexual activity, " including the applicable definition, which is the "lascivious exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of any person." Tenn. Code Ann. § 39-17-1002(8)(G) (2014). Regarding the meaning of "lascivious exhibition, " the trial court instructed the jury: "'Lascivious' means tending to excite lust; lewd; indecent." See T.P.I.-Crim. 34.03.

         The defendant requested two additional jury instructions to further explain the meaning of "lascivious exhibition." He first requested that the jury be instructed on the so-called Dost factors set forth in United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986), affd sub nom. United States v. Weigand, 812 F.2d 1239 (9th Cir. 1987). The requested instruction listed the six factors to consider in determining whether the videos made by the defendant were lascivious, and also indicated that the sixth factor was applied as to the "average viewer" rather than the subjective response of the defendant.[7]The second jury instruction requested by the defendant stated: "Photography of an undressed minor by itself is not sufficient to sustain a conviction for this offense."

         The trial court declined to give either of the requested jury instructions. As to the first one, the trial court reasoned that Tennessee's legislature has not adopted the Dost factors in the child sexual exploitation statutes or otherwise, so instructing the jury on the Dost factors could be viewed as imposing additional non-statutory elements to the offense. The trial court rejected the second jury instruction based on its conclusion that the pattern jury instruction defined "lascivious" in a manner that was sufficient to inform the jury about the proof required to convict for the offense.

         The jury returned a verdict of guilty on all twenty-four counts-nine counts of especially aggravated sexual exploitation of a minor (section 39-17-1005), one count of attempt to commit that crime, thirteen counts of observation without consent (section 39-13-607), and one count of attempt to commit that crime.[8] The trial judge approved the verdict.

         At the sentencing hearing, the two victims and Wife read impact statements. Defense counsel noted for the record that the trial court did not permit cross-examination of these witnesses. After that, the trial court sentenced the defendant to twelve years of incarceration for the conviction on Count 1 (especially aggravated sexual exploitation) and ten years on Count 10 (especially aggravated sexual exploitation), to run consecutively, for a total of twenty-two years. The trial court sentenced the defendant to ten years for each of the seven remaining sexual exploitation convictions and six years on one count of attempt to commit that crime, all to run concurrent to the sentence in Count 1. In addition, the trial court sentenced the defendant to eleven months and twenty-nine days for each of the observation without consent convictions and six months on the single count of attempt to commit that crime, all to run concurrently to the sentence for Count 1. Thus, the trial court sentenced the defendant to a total effective sentence of twenty-two years as a Range I, Standard Offender, to be served at 100%.

         The defendant filed a timely motion for a new trial and an amended motion for a new trial. After a hearing, the trial court denied the defendant's motion. The defendant appealed his nine convictions for especially aggravated sexual exploitation, and he also appealed his sentence.

         A majority of the Court of Criminal Appeals affirmed the trial court in all respects. State v. Whited, No. E2013-02523-CCA-R3-CD, 2015 WL 2097843, at *13 (Tenn. Crim. App. May 4, 2015). To evaluate the sufficiency of the evidence, the court referred to the six Dost factors. Specifically, it applied the sixth Dost factor subjectively, asking whether the depiction in the videos was intended to elicit a sexual response in the defendant or a like-minded pedophile.[9] Id. at *7. The majority answered this inquiry in the affirmative. It evaluated the other Dost factors as well and held that the evidence was sufficient for the jury to find that the videos depicted a minor engaged in the lascivious exhibition of her private body areas.[10] Id. at *8. Consequently, the majority affirmed the defendant's nine convictions for especially aggravated sexual exploitation of a minor. Id. at *13.

         The appellate court found no error in the trial court's rejection of the defendant's two jury instruction requests. Id. at *9-10. It found that the Dost factors were relevant but warned that they "should be applied cautiously" because they are not definitional, not comprehensive, and not applicable in every situation.[11] Id. at *9 (citing State v. Whitlock, No. E2010-00602-CCA-R3-CD, 2011 WL 2184966, at *6 (Tenn. Crim. App. June 6, 2011)). The court upheld the trial court's refusal to instruct the jury that "[p]hotography of a[n] undressed minor by itself is not sufficient to sustain a conviction" because it agreed with the trial court that the definitions of "sexual activity" and "lascivious" given to the jurors were sufficient to instruct them on the law. Id. at *10.

         As to sentencing, the appellate court held that the defendant waived his argument that he was deprived of the opportunity to cross-examine the witnesses who testified at sentencing and that, in any event, any error on this issue would have been harmless. Id. at *11. It also upheld the trial court's imposition of two consecutive sentences. Id. at *12. Thus, a majority of the Court of Criminal Appeals affirmed the judgment of the trial court in its entirety. Id. at *13.

         Judge Camille McMullen filed a dissent in which she opined that the evidence was insufficient to support the convictions for especially aggravated sexual exploitation. Using a chart form, the dissent dissected the videos and concluded that "there is simply nothing lascivious or lewd about the conduct depicted in the videos." Id. at *15 (McMullen, J., dissenting). The dissent opposed a subjective application of the sixth Dost factor. Under the subjective standard utilized by the majority, the dissent posited, any "photograph taken by a pedophile" would be deemed sufficient to support a conviction for "the offense of especially aggravated sexual exploitation of a minor, regardless of the innocuous character of the photograph." Id. at *16. The dissent concluded that the evidence showed that the defendant was attempting to create a lascivious video, even though he failed to do so. Consequently, the dissent would have reduced the convictions for especially aggravated sexual exploitation of a minor to attempts to commit that crime.[12] Id. (citing United States v. Vanderwal, 533 Fed.Appx. 498 (6th Cir. 2013)).

         We granted the defendant's application for permission to appeal.

         Issues and Standard of Review

         In this appeal, the defendant raises the same issues he raised in the Court of Criminal Appeals, challenging his nine convictions for especially aggravated sexual exploitation. The defendant argues: (1) the trial court erred in refusing to instruct the jury as he requested; (2) the evidence was insufficient to convict him of especially aggravated sexual exploitation when no sexual activity was depicted in the videos; (3) the Dost factors, applied objectively, weigh against a finding of "lasciviousness" in the videos; (4) the trial court erred in refusing to permit him to cross-examine the witnesses who testified at the sentencing hearing; and (5) the trial court erred in imposing consecutive sentences.[13]

         In our view, the pivotal issues involve (1) the appropriate standard for determining whether a given depiction is a "[l]ascivious exhibition" of the minor's private body areas within the meaning of Tennessee Code Annotated section 39-17-1002(8)(G) and Tennessee's child sexual exploitation statutes and (2) the application of that standard to the evidence in this case to determine whether the evidence was sufficient for the jury to find that the videos produced by the defendant were prohibited under the statutes.

         Of course, the general standard for appellate review of the sufficiency of the evidence "is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Bell, 480 S.W.3d 486, 516 (Tenn. 2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Beyond that, however, the standard for appellate review is informed by whether the court is reviewing a finding of fact or a conclusion of law.

         This Court has not addressed whether the determination regarding a "lascivious exhibition" of a child's private body areas is a finding of fact or a conclusion of law. Looking to persuasive authority from other jurisdictions, we find that courts disagree about whether a lasciviousness determination is a factual finding or a legal conclusion.

         Federal decisions on the question of lasciviousness are useful for comparison because federal law is similar to Tennessee law in the area of child sexual exploitation. The definition of "sexual activity" in Tennessee Code Annotated section 39-17-1002(8)(G) and the definition of "sexually explicit conduct" in 18 U.S.C. § 2256(2)(A)(v) both include the "lascivious exhibition" of the genitals or pubic area.[14]Therefore, we look particularly to federal caselaw for guidance in "lascivious exhibition" cases. See Robinson v. Fulliton, 140 S.W.3d 312, 318 (Tenn. Ct. App. 2003) (holding that "it is appropriate to consider the reasoning of federal courts that have interpreted a comparable federal statute").

         Even federal decisions, however, lack uniformity on whether appellate review of a lasciviousness determination is the review of a factual finding, a legal conclusion, or a mixed question of fact and law. United States v. Steen, 634 F.3d 822, 825 (5th Cir. 2011). In Steen, the Fifth Circuit Court of Appeals described the split among federal courts on the standard of review for lascivious exhibition:

The standard of review for lasciviousness determinations requires additional explanation, as our sister courts of appeal are split on the issue. The Third, Eighth, and Tenth Circuits have held that the decision of whether an image is lascivious requires de novo review because it involves a legal standard. The Ninth Circuit calls for clear error review, noting that a district court's findings of lasciviousness should be upheld unless the appellate court has a "definite and firm conviction that a mistake has been committed."

Id. (footnotes omitted). While acknowledging that some appellate courts consider their task as the review of a question of law, the Steen court followed other Fifth Circuit precedent in applying a "clear error" standard of review to assess the sufficiency of the evidence, at least insofar as the child sexual exploitation conviction "indicates a factual finding that the image was a lascivious exhibition of the genitals." Id. at 826 & n.11 (citing United States v. Boudreau, 250 F.3d 279, 282 (5th Cir. 2001); United States v. Carroll, 190 F.3d 290, 293 (5th Cir. 1999), vacated in part, reinstated in relevant part by 227 F.3d 486, 488 (5th Cir. 2000) (per curiam)); accord United States v. Schuster, 706 F.3d 800, 806 (7th Cir. 2013); United States v. Overton, 573 F.3d 679, 688 (9th Cir. 2009). But see United States v. Amirault, 173 F.3d 28, 33 (1st Cir. 1999) (reviewing the issue as a matter of law de novo "to ensure that the First Amendment has not been improperly infringed"); United States v. Knox, 32 F.3d 733, 744 (3d Cir. 1994) ("Because the meaning of the statutory phrase 'lascivious exhibition' . . . poses a pure question of law, our review is plenary.").

         Other federal courts have treated review of a finding of lascivious exhibition as appellate review of a mixed question of fact and law. See United States v. Helton, 302 Fed.Appx. 842, 846 (10th Cir. 2008). The Eighth Circuit Court of Appeals explained: "[T]he question whether materials depict 'lascivious exhibition of the genitals, ' an element of the crime, is for the finder of fact, " but "the meaning of 'lascivious exhibition of the genitals' is an issue of law." United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001) (citing United States v. O'Malley, 854 F.2d 1085, 1087 (8th Cir. 1988); United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999)); see also Weigand, 812 F.2d at 1244 (noting that "[t]he question of whether the pictures fall within the statutory definition is a question of fact as to which we must uphold the district court's findings unless clearly erroneous, " but that "[t]he definition of 'lascivious' is a matter of law which we review de novo").

         We agree with the Eighth Circuit that appellate review of a lasciviousness determination in child sexual exploitation cases is review of a mixed question of fact and law. The appellate court must review the finding by the trier of fact that the depiction is a lascivious exhibition, including underlying factual issues such as the extent to which the minor appears nude or whether the minor appears to be portrayed in a sexually suggestive manner. See Rayl, 270 F.3d at 714. In addition, looking at the evidence in a light most favorable to the verdict, the appellate court must determine whether the depiction is legally sufficient to constitute a "lascivious exhibition" within the meaning of the statute. The latter determination is a question of law subject to plenary review. Id

         In the instant case, the crux of the defendant's argument is that the depictions in the videos are legally insufficient to support a finding that the minors were engaged in a "lascivious exhibition" within the meaning of the Tennessee statute. Accordingly, we review it as primarily an issue of law, subject to de novo review. To the extent, however, that this issue involves disputed facts, we give the State the strongest legitimate view of the evidence. Our standard of review for other issues on appeal will be mentioned in the discussion of those issues.

         Analysis

         The issues presented in this appeal require interpretation of Tennessee statutes on the sexual exploitation of children, specifically the Tennessee Protection of Children Against Sexual Exploitation Act of 1990, Tennessee Code Annotated sections 39-17-1001 to -1008 ("the Act"). The Act criminalizes, among other things, the possession, distribution, and production of child pornography. Tenn. Code Ann. §§ 39-17-1003 to -1005; see also State v. Sprunger, 458 S.W.3d 482, 485 n.4 (Tenn. 2015). Basic possession is charged as "sexual exploitation, " a Class D felony:

(a) It is unlawful for any person to knowingly possess material that includes a minor engaged in:
(1) Sexual activity; or
(2) Simulated sexual activity that is patently offensive.

Tenn. Code Ann. § 39-17-1003(a). Distribution (or possession with intent to distribute) is charged as "aggravated sexual exploitation, " a Class C felony:

(a)(1) It is unlawful for a person to knowingly promote, sell, distribute, transport, purchase or exchange material, or possess with the intent to promote, sell, distribute, transport, purchase or exchange material, that includes a minor engaged in:
(A) Sexual activity; or
(B) Simulated sexual activity that is patently offensive.

Id. § 39-17-1004(a)(1). The offense at issue in this case is the production of child pornography, charged as "especially aggravated sexual exploitation." This is the most culpable of the three, a Class B felony:

(a) It is unlawful for a person to knowingly promote, employ, use, assist, transport or permit a minor to participate in the performance of, or in the production of, acts or ...

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