State of Tennessee v. Thomas Whited, 506 S.W.3d 416

Background

Defendant Thomas Whited secretly videotaped his 12-year-old daughter and her teenage friend undressing and showering using a hidden cell phone; wife discovered videos and reported them to police.
Prosecuted on 24 counts after dismissal of some unlawful-photography counts: nine counts of especially aggravated sexual exploitation (production of child pornography), one count of attempted especially aggravated sexual exploitation, and several counts of observation without consent and attempt.
At trial the jury convicted on all counts; defendant received an effective 22-year sentence; Court of Criminal Appeals affirmed in a divided opinion that applied the Dost factors (including a subjective sixth factor) to find lasciviousness.
Tennessee Supreme Court granted review to decide the proper standard for judging whether material depicts a "lascivious exhibition" and whether Dost should be used as a test; also considered whether the defendant's subjective intent to arouse is an element of the production offense.
The Supreme Court rejected using the Dost factors as a formal test, held the child-exploitation statutes use the same content standard for possession, distribution, and production, and concluded the statutory offense does not include the defendant’s subjective intent to obtain sexual arousal.
Applying the statutory standard to the videos, the Court found the recordings depicted mere nudity and everyday activity (albeit secretly recorded) and were insufficient to prove "lascivious exhibition," reversed and dismissed the nine production convictions, and remanded for resentencing; State may retry on lesser-included attempt counts.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Whited)	Held
Proper standard to determine "lascivious exhibition" under Tenn. child-exploitation statutes	Use Dost factors (including intent-to-arouse), and consider subjective intent of producer; factors guided court below	Dost factors (applied objectively) and instruction that nudity alone insufficient	Rejected Dost as a mandatory test; lasciviousness is a commonsense, fact-specific inquiry based on the depiction itself, not a multi-factor test
Whether defendant's subjective intent to sexually arouse is an element of production offense	Subjective intent may inform lasciviousness determination (as applied by some courts)	Intent not required; focus on content	Held intent-to-arouse is not an element; Tennessee statutes do not include producer's subjective sexual purpose, so content is judged irrespective of defendant's mental state
Sufficiency of evidence that videos depicted a minor engaged in "sexual activity" (lascivious exhibition)	Videos showed nudity, hidden-camera placement and producer's actions sufficient to show lasciviousness	Videos show ordinary, nonsexual activities; nudity alone insufficient	Held evidence insufficient: recordings showed everyday nude activity without focus, posing, or other features making them lascivious; convictions for production reversed and dismissed
Whether reversal should be reduced to attempt or retrial disallowed by double jeopardy	(Dissent below) reverse to attempt where evidence showed intent to create lascivious material	Attempt may be proper lesser-included; State may retry on attempt	Held double jeopardy does not bar retrial on lesser-included attempt; record does not preclude attempt, so State may retry on attempt if it chooses

Key Cases Cited

Miller v. California, 413 U.S. 15 (established obscenity test under First Amendment)
New York v. Ferber, 458 U.S. 747 (child pornography is unprotected speech; States have broader power to proscribe)
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (district court enumerated six factors often used to assess lasciviousness)
State v. Sprunger, 458 S.W.3d 482 (Tenn. 2015) (characterizing offenses under Tennessee child-exploitation statutes)
United States v. Weigand, 812 F.2d 1239 (9th Cir. 1987) (discussed Dost and photographer’s role in creating lascivious exhibition)
United States v. Steen, 634 F.3d 822 (5th Cir. 2011) (surveyed circuit split on standard of review and criticized overreliance on Dost)
United States v. Frabizio, 459 F.3d 80 (1st Cir. 2006) (criticized treating Dost factors as definitive test)
United States v. Horn, 187 F.3d 781 (8th Cir. 1999) (addressed freeze-frames and producer/editor role in creating lascivious exhibition)