State v. Whited

• Decision Date: 07 November 2016
• Docket Number: No. E2013–02523–SC–R11–CD,E2013–02523–SC–R11–CD
• Citation: 506 S.W.3d 416
• Parties: STATE of Tennessee v. Thomas WHITED
• Court: Tennessee Supreme Court

506 S.W.3d 416

STATE of Tennessee

v.Thomas WHITED

No. E2013–02523–SC–R11–CD

Supreme Court of Tennessee, AT KNOXVILLE.

January 27, 2016 Session

Filed November 7, 2016

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

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.

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...