Tennessee Supreme Court: Not Especially Aggravated Child Sexual Exploitation

The Tennessee Supreme Court remanded a criminal case predicated on these facts

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.

 The decision

 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…

we hold that the offense of especially aggravated sexual exploitation, i.e., producing material that includes a minor engaging in ―sexual activity‖ defined as the ―[l]ascivious exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of any person,‖ does not include as an element the accused‘s subjective intent or purpose of sexual arousal or gratification. To determine the sufficiency of the evidence, the court must focus on the material at issue and ask whether it includes a depiction of the lascivious exhibition of a minor‘s private body areas. Assessing the videos in the instant case, we conclude that the videos do not include a minor engaging in a lascivious exhibition.

(Mike Frisch)