IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 19, 2014 Session

STATE OF TENNESSEE v. THOMAS WILLIAM WHITED

Appeal from the Criminal Court for Knox County

No. 100430 Steven Wayne Sword, Judge

No. E2013-02523-CCA-R3-CD - Filed May 4, 2015

CAMILLE R. MCMULLEN, J., dissenting.

I must respectfully disagree with the conclusion reached by the majority. Let me

begin by recognizing that surreptitiously recording a minor in the privacy of her bedroom or

bathroom while she undresses is reprehensible, abhorrent, and criminal. See Tenn. Code

Ann. §39-13-605. However, whether this conduct rises to the level necessary to sustain the

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convictions for especially aggravated sexual exploitation of a minor is another question. For

this offense, the State was required to show that the minor in the videos was engaged in

sexual activity. As applicable here, the statutory definition of sexual activity required the

State to prove that the video contained the lascivious depiction of the victim’s breasts,

buttocks, and/or genitalia. After applying the guidelines outlined in Dost and given the

below reasoning and authority, I am unable to conclude that the images depicted in the video

were lascivious. Therefore, I would reverse the convictions of especially aggravated sexual

exploitation of a minor in this case. In reaching this conclusion, I would apply the sixth Dost

 Tennessee’s video voyeurism law provides, 1

It is an offense for a person to knowingly [videotape] . . . an individual, when the

individual has a reasonable expectation of privacy, without the prior effective consent

of the individual, or in the case of a minor, without the prior effective consent of the

minor’s parent[,] if the [videotape]: (1) [w]ould offend or embarrass an ordinary

person if such person appeared in the [videotape]; and (2) [w]as taken for the

purpose of sexual arousal or gratification of the defendant. 

T.C.A. § 39-13-605 (2014).

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factor, whether the visual depiction is intended or designed to elicit a sexual response in the

viewer, objectively rather than subjectively, as this court previously held in State v. John

Michael Whitlock, No. E2010-00602-CCA-R3-CD, 2011 WL 2184966, at *7 (Tenn. Crim.

App. June 6, 2011) (reviewing whether a videotape constituted “lascivious exhibition” of a

girl’s pubic area and concluding that the sixth Dost factor must be analyzed objectively rather

than subjectively). Finally, because there is sufficient evidence for a reasonable jury to

conclude that the Defendant attempted to capture lascivious images on the video, I would

reduce his convictions to attempted especially aggravated sexual exploitation of a minor and

remand this matter to the trial court for re-sentencing.

As an initial matter, I must take note that neither party addressed the appropriate

standard of review for this Court when determining whether an image is lascivious.

Tennessee has yet to squarely address the standard of review for determining whether an

image is lascivious in a case that challenges the sufficiency of the evidence. Some courts

review this issue de novo because it involves a pure question of law, see United States v.

Helton, 302 Fed. Appx. 842, 846 (10th Cir. 2008), while other courts review this issue for

“clear error” because it involves a mixed question of fact and law. See United States v.

Steen, 634 F.3d 822, 825-826 (5th Cir. 2011). In my view, the appropriate standard of

review for determining whether an image is lascivious is de novo because appellate review

primarily involves consideration of legal principles.

As pointed out by the majority, there is very little Tennessee authority defining the

term “lascivious” for purposes of the especially aggravated sexual exploitation of a minor

statute. My conclusion is therefore guided by United States v. Mr. A., 756 F. Supp. 326

(E.D. Mich. 1991) and United States v. Vanderwal, 533 Fed. Appx. 498 (6th Cir. 2013). In

United States v. Mr. A., the defendants (a husband and wife) took various photos of their two

children, an 11 year old girl and 9 year old boy; a 10 year old neighbor girl; a 5 year old

niece; and a baby nephew. The 15 photos depicted one or more of the children partially or

fully nude in various positions which were specifically described by the court. The court

considered the Dost factors and held that the evidence was insufficient to prove that the

genitalia of the children in several photographs were “lasciviously exhibited.”

Notwithstanding the nudity and the odd positioning of the children, the court found the

evidence insufficient to prove that the genitalia of the children was “lasciviously exhibited;

that is to say, . . . photographed in a manner intended . . . to arouse or satisfy the sexual

cravings of a voyeur. . . . [or] for the purposes of [the defendants’] own sexual gratification.”

Id. at 329. The court noted that “nude and lascivious are not synonyms, and that something

more than distasteful and more than bad taste must be present for a conviction.” Id. Thus,

the court reversed the defendants’ convictions for sexual exploitation of a minor. Id.; see

also Rhoden v. Morgan, 863 F. Supp. 612, 621 (M.D. Tenn. 1994) (“Even depictions of

nudity involving a minor constitute protected expression absent a showing that the depictions

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are ‘in some significant way, erotic.’”) (citation omitted).

In United States v. Vanderwal, 533 Fed. Appx. 498 (6th Cir. 2013), the defendant was

convicted of attempted sexual exploitation of a minor based on videos of two pre-pubescent

girls naked in the bathroom. Similar to the case sub judice, the defendant secretly filmed the

girls by placing a camera in the bathroom and aligned it to focus on the genital area of

someone standing at the sink. The shower curtain was clear plastic so one could see through

it to someone in the shower/bath. The defendant argued that the videos were not lascivious

because the Dost factors were not met, but the court rejected this argument because the

defendant was charged with attempted sexual exploitation of a minor. Thus, the court

reasoned, “[i]t is not necessary for the Government to prove that the videos [the defendant]

created were lascivious, only that he had the specific intent to create a lascivious video.” Id.

at 501. The court held that to prove the defendant’s intent to create the video, contextual

evidence is permissible and the limitations in the Dost test are not applicable. Therefore, the

court considered other evidence, including the defendant’s possession of other child

pornography, a sexual fantasy story that he wrote, and the way he aligned the camera in the

bathroom to capture the genital area of someone standing at the sink, to show that he

attempted to sexually exploit the girls. Id. at 502; see also, United States v. Sims, 708 F.3d

832, 835 (6th Cir. 2013) (holding that to convict the defendant of attempted production of

child pornography, the government need not prove the videos were actually lascivious, just

that he “specifically intended to obtain a lascivious image when he stood outside [the

victim]’s bedroom window with a video camera”).

In this case, the table below details the specific images depicted in each of the videos

forming the basis of the Defendant’s especially aggravated sexual exploitation of a minor

convictions.

 EXHIBIT/COUNTS/ 

DURATION OF

VIDEO

TYPE OF NUDITY DURATION OF NUDITY

Exhibit 16

Counts 1-2

22 minutes and 57 seconds

Victim in bathroom to take

a shower; bra intermittently

obstructs view of camera.

16 seconds fully exposed

breast; nude with back to

camera before entering

shower; full view of breast

for 10 seconds

intermittently while victim

puts on bra.

Exhibit 17 Victim in bedroom and 5 seconds of victim’s

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Counts 3-4

4 minutes 29 seconds

removes top and bottom. buttocks; partial breast then

full breast for 2 seconds.

Exhibit 18

Counts 5-6

15 minutes 5 seconds

Victim in bathroom and

undresses to take a shower.

10 seconds fully exposed

breasts; intermittent nudity

alternating front and back

views to the camera for 20

seconds until shower; after

shower 2 seconds full

nudity; intermittent 10

seconds partial breasts.

Exhibit 19

Counts 7 (attempt) Counts

8 & 9 (observation w/o

consent)

5 minute 35 seconds

Apparently showing the

victim’s bedroom; initially,

dark images are barely

visible; victims are dressed

in swimsuits; they change

into shorts but are either

covered while doing so or

out of the camera’s view.

No nudity shown in this

video.

Exhibit 20

Counts 10-12

10 minutes 23 seconds

Victim’s bedroom.

Showing both victims

apparently in swimsuits or

underwear; they change

clothes but out of view of

camera.

No nudity shown in this

video.

Exhibit 21

Counts 13-14

8 minutes 22 seconds

Victim is in the bathroom

and undresses to take a

shower.

33 seconds of fully

exposed breasts; 15

seconds nude with back to

camera and intermittent

nudity.

Exhibit 22

Counts 15-16

11 minutes 54 seconds

Victim in bathroom and

undresses to take a shower.

1 second nude with back to

camera; 2 seconds full

front breasts; intermittent

nudity for 20 seconds while

victim drapes/drys herself

with towel; 7 seconds

breast fully exposed.

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Exhibit 23

Count 17 (att. Observ. w/o

consent)

10 minutes 54 seconds

Nothing on video except

Defendant apparently in

victim’s bedroom

arranging camera.

No nudity depicted.

Exhibit 25

Counts 18-19

14 minutes 52 seconds

Victim in bathroom to take

a shower; undresses with

underwear on and back to

camera for 36 seconds; gets

into and out of shower;

video wherein victim

stands on stool or bathtub

after shower; intermittently

elevated.

Prior to shower partial

breast is depicted for 12

seconds; after shower side

view of naked body and

back of victim for 14

seconds then covered by

towel; 2 second side views

of breasts; 20 seconds of

intermittent full nudity.

Exhibit 29

Counts 20-21

7 minutes 20 seconds

Victim in bedroom; has

back to camera; appears to

put on bra without showing

breast.

3 seconds of victim’s bare

buttocks; no other nudity in

remainder of video.

In this case, there is simply nothing lascivious or lewd about the conduct depicted in

the videos. See Rhoden, 863 F. Supp. at 618 (“[T]he term ‘lewd’ is no different than the

term ‘lascivious’ for the purposes of evaluating child pornography.”) (citations omitted).

Although the victims appear naked at various times as outlined above, they are not engaged

in any “sexual activity” as proscribed by the statute. The videos depicted the victims

undressing in a bedroom or naked before/after taking a shower. They were partially or fully

nude at various times during the process of changing their clothes. The victims were not in

a sexually suggestive location nor engaged in sexually suggestive behavior. Their nudity was

not inappropriate for the setting, and they were not posing in any particular way. In my view,

concluding that the images depicted in the video were lascivious renders the word

meaningless because the victims were engaged in everyday, ordinary behavior. Simply put,

I believe that the lascivious depiction of the victims’ breasts, genitalia, or buttocks requires

more than mere nudity, which is precisely the case here.

In concluding that the images depicted in the videos are lascivious, the majority relied

upon Dost factors 1, 4, & 6. There is no question that Dost factor 4 applies because full or

partial nudity is shown in every video, except in exhibits 19 & 20. However, as agreed by

all, nudity alone does not support a finding of lasciviousness. Dost factor 1, whether the

focal point of the visual depiction is on the child’s genitalia or pubic area, in my view, does

not apply. The video reveals brief moments of the victims’ naked bodies without any

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emphasis on their pubic region or genitalia. This weighs against a finding of lasciviousness.

The majority places significance on the fact that the Defendant changed the position of the

camera to capture the images of the victim’s breast and genitalia. It must be pointed out that

in the first video from the bathroom, the Defendant was unsuccessful in obtaining any view

of the victim’s breast or genitalia. While it is clear that the Defendant changed the position

of the camera in an attempt to capture more of the victim’s naked body, the video remained

without a focal point, and there was no emphasis on the victim’s pubic area/breasts in the

way this factor has traditionally been applied.

Dost factor 6, whether the visual depiction is intended or designed to elicit a sexual

response in the viewer, was applied subjectively by the majority. Under the subjective view,

it could be argued that in light of other evidence, the images depicted in the videos were

intended to elicit a sexual response in the viewer, the Defendant. However, such a broad

holding would make every photograph taken by a pedophile constitute the offense of

especially aggravated sexual exploitation of a minor, regardless of the innocuous character

of the photograph. As in Vanderwal, it seems clear that the Defendant was attempting to

create lascivious videos. However, the Defendant fell short of completing the offense of

especially aggravated sexual exploitation of a minor because the images in the video do not

depict the lascivious exhibition of the minor’s breasts, genitalia, or pubic area as required by

law. Because I would consider contextual evidence only to determine the Defendant’s intent

to create the video rather than whether the video image is itself lascivious, I would reduce

all of the Defendant’s convictions except Counts 7 and 10 to attempted especially aggravated

sexual exploitation of a minor based on his realignment of the camera to better capture the

victim’s genitalia as well as his statement that he had been molested as a child when he was

confronted by his wife with the videos. I would reverse and dismiss Counts 7 and 10 because

those videos did not depict any nudity.

Accordingly, I would reverse and dismiss Counts 7 and 10. I would reduce all

remaining counts from especially aggravated sexual exploitation of a minor to attempted

especially aggravated sexual exploitation of a minor and remand this matter to the trial court

for resentencing.

________________________________

CAMILLE R. MCMULLEN, JUDGE

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