Session January 27, 2016
by Permission from the Court of Criminal Appeals Appeal from
the Criminal Court for Knox County No. 100430 Steven Wayne
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.
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.
and Procedural Background
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.
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.
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; (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,  a Class A misdemeanor; (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,  a Class A misdemeanor.
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. 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
two-day jury trial began on July 29, 2013. The jurors heard
testimony from Daughter, Friend, and Wife.
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.
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.
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.
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
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
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.
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
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
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.
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.
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.
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.
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
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
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.
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.
eleven videos were played for the jury. Nine of them were
proffered to support the nine charges of especially
aggravated sexual exploitation.
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.
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
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.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
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
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. The trial judge approved the verdict.
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%.
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.
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. 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. Id.
at *8. Consequently, the majority affirmed the
defendant's nine convictions for especially aggravated
sexual exploitation of a minor. Id. at *13.
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. 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
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.
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. Id.
(citing United States v. Vanderwal, 533 Fed.Appx.
498 (6th Cir. 2013)).
granted the defendant's application for permission to
and Standard of Review
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
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
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.
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.
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.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
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
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
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.").
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").
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
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.
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
(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 ...