IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST SESSION, 1998 October 13, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9802-CC-00085
)
Appellee, )
) ROBERTSON COUNTY
V. )
)
) HON. JOHN H. GASAWAY, III, JUDGE
LARR Y DIXO N, )
) (ESPECIALLY AGGRAVATED SEXUAL
Appe llant. ) EXPLOITATION OF A MINOR)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
110 Sixth Avenue, West
Springfield, TN 37172 KAREN YACUZZO
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
JOHN WESLEY CARNEY, JR.
District Attorney General
DENT MORRISS
Assistant District Attorney General
500 South Main Street
Springfield, TN 37172
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defe ndan t, Larry D ixon, ap peals as of rig ht his co nviction of esp ecially
aggravated sexual exploitation of a minor. He was convicted following a bench trial
in the Robertson County Circuit Court. The trial court subsequently sentenced
Defendant to ten (10) years a s a Ra nge I S tanda rd Offe nder. In this ap peal,
Defen dant raise s the follow ing issue s:
(1) Wh ether the trial court erred in finding that the vide o in
question depicted sexual activity under Tennessee Code
Anno tated sec tion 39-1 7-1002 and -10 05;
(2) Whether the trial court erred in finding Defendant’s
conduct involved promotion or use of children under the
aforem entione d statute;
(3) Wh ether the statutory prohibition against “lascivious
exhibition of the female breast or genitals or pubic area of
any person” is unconstitutionally vague; and
(4) Wh ether the trial court erred in sentencing Defendant
to serve te n years in confinem ent.
We affirm the ju dgme nt of the trial co urt.
The facts presented at trial revealed that during the summer of 1996,
Defendant and Deborah Presson were living together in an apartment in Springfield,
Tennessee. A two-way mirror had been installed in the apartment which allowed
someone in Defendant’s bedroom closet to view a person in the bathroom without
the knowledge of that person.
Deborah Presson’s sister, Paula Harris, testified that during a visit to her
sister, she discovered the two-w ay mirror w ith a video camera set up behind it. Ms.
Harris subsequently returned to the apartment, searched it, and found a video of two
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young girls taking a bath together. The video includes closeups of one of the young
girl’s breasts and pubic area. Ms. Harris took the tape and called the police.
The police eventu ally discovered that the girls were the daug hters o f Dixon ’s
former neighbors and that the girls would occasionally visit Defendant and Ms.
Presson. Since the victims are minors, they will be referred to by the ir initials only.
A.H. was twelve yea rs old at the time of the offense a nd her s ister, C.H., w as ten
years old. Ms. Presson, who was indicted as well, testified against Defendant at trial
and said that it was Defendant who set up the came ra to video A .H. an d C.H . while
they were bathing. Ms. Presson furth er testified that Defend ant urged he r to have
A.H. pose as if she were taking her picture so that he could “see what he nee ded to
see.” Ms. Presso n said that De fendant watc hed the video of the minors b efore
having sex with her (Presson). A.H. testified that she was unawa re that she was
being videotaped while she was in the bathtub.
I.
Tennessee Code An notated section 39-17-1005 provides in part as follows:
(a) It is unlawful for a person to knowingly promote,
employ, use, assist, transport or permit a minor to
participate in the performance or in the production of
material which includes the minor engaging in: (1) Sexual
activity.
Tenn. Code Ann. § 39-17-1005(a)(1). The pertinent definition of “sexual activity” as
applied to the facts of this case is the “[l]ascivious exhibition of the female breast or
the genitals or pu bic area of any p erson.” Ten n. Code A nn. § 39-17-1 002(7)(G).
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Defendant argues that the video in question does not involve s exual ac tivity
since it only involves two minor g irls taking a b ath toge ther. How ever, we a gree with
the State’s positio n that th is goe s well beyond the innocent videotaping of two young
girls frolicking in the bath tub. This v ideo g oes b eyond the bo unds of dec ency a s it
involves the coaxing of young girls to pose for an imaginary camera as well as
footage in which Defendant focuses specifically on the breasts and pubic area of
A.H.
Tennessee case law ha s not s pecific ally addressed the meaning of lascivious
exhibition as it relates to Tennessee Code Annotated section 39-17-1005. However,
the United States District Court for the Middle District of Tennessee acknowledged
that the determinative test for asse ssing whether a visual depiction of a minor
involves the lascivious exhibition of genita ls was developed in United States v. Dost,
636 F. Supp . 828 (S.D . Cal. 198 6), aff’d sub nom. United States v. Wiegand, 812
F.2d 1239 (9 th Cir. 198 7), cert. denied, 484 U.S. 85 6, 108 S . Ct. 164, 98 L. Ed. 2d
118 (1987). See Rhoden v. Morgan, 863 F. Supp. 612, 619 (M.D. T enn. 19 94), aff’d,
97 F.3d 1452 (6th Cir. 19 96), cert. denied, 117 S. Ct. 1448, 137 L. Ed. 2d 553
(1997). In Dost, the court listed at least six factors for a trial court to consider in
determining whether or not a vis ual depiction of a minor constitutes a “lascivious
exhibition of the genitals or pubic area.” 636 F. Supp. at 832. Such factors included
in Dost are:
(1) whether the focal point of the visual depiction is on the
child’s genitalia or pubic area;
(2) whether the setting of the visual depiction is sexuall y
suggestive, i.e., in a place or pose generally associated
with sexual activity;
(3) whether the child is depicted in an unnatural pose, or
in inappropriate attire, considering the age of the child;
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(4) whether the child is fully or partially clothed, or nude;
(5) whether the visual depiction suggests sexual coyness
or a willingness to en gage in sexu al activity;
(6) whether the visual depiction is intended or design ed to
elicit a sexual respon se in the viewer.
Id.
The Dost court further noted that a visual depiction “need not involve all of
these factors to be a ‘lascivious exhibition of the genitals or pubic area.’ The
determ ination will have to be m ade b ased on the overa ll conte nt of the visual
depiction, taking into a ccount the ag e of the mino r.” Id.
Defendant argues that the filming of the two girls bathing does not fall under
the Tennes see statutory de finition of sexual activity. However, we find at least four
of the six Dost factors to be present in this case . First, Defendant focuses the
camera on the br easts an d pubic a rea of A.H . during certain portions of the tape.
Second, Ms. Presson encouraged A.H. to pose for a pretend camera. These poses
were not natural for a youn g child to be d oing w hile tak ing a b ath. T hird, bo th girls
were nude. F inally, acco rding to M s. Press on’s testim ony, De fendant viewed the
videotape before enga ging in sexual relation s with her. This supports the argument
that the vide o was inte nded to elicit a sexua l respons e in the view er. Based on all
the foregoing, the video in question clearly falls within the “sexual activity” definition
found in T ennes see Co de Ann otated se ction 39-1 7-1002 (7)(G).
II.
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In its Verdict and Orde r, the trial court found the elements of the convicting
offense, espe cially aggravated sexual exploita tion of a mino r, unde r the fac ts of this
case to be as follows:
(1) that the defendant did promo te, use or permit a minor
to participate in the performance or in the production of
material which includes the minor engaging in sexual
activity, and
(2) that the defend ant acted kno wingly.
See Ten n. Co de An n. § 39 -17-1 005(a )(1) (em phas is added). Th e court went on to
list the relevant definitions in part as follows:
(1) “Prom ote” mean s to financ e, produce, direct,
manu facture, iss ue, pub lish, exhibit or advertise.
(2) “Material” means any picture, drawing, photograph,
motion picture film, videocassette tape or other pictorial
representation.
See Tenn. C ode Ann . § 39-17-100 2(5) and (2)(A ) (empha sis added).
Defendant argue s that h is conduct, as to th e video at issue , does not fall
under the statutory definition of promote. First, under the facts of this case,
Defe ndan t’s operation of the video camera to film the gir ls in the bathtub involved
production of a tape. D efenda nt, in dispu ting the application of “promote,” groups
“produce and d irect” tog ether to sugg est tha t the ch ild must be a knowing participant
in the activity. See Tenn. Code Ann. § 39-17-1002(5). However, as emphasized
above, the definition of “promote” uses the term “or” to separate the kinds of actions
which fall within its statu tory definition . In the ins tant ca se, De fenda nt clea rly
produc ed a tap e which comp lies with the s tatutory de finition of “prom ote.”
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Further, Defendant implies that “exhibit” applies to material being shown to
others. Howe ver, this ass umption is m isplaced as this Court in State v. Falin
recognized that the statute is intended to apply to both commercial and non-
commercial uses. C.C.A. No. 03C01-9210-CR-00340, Sevier County (Tenn. Crim.
App., Knoxville, Ju ne 22, 1 993), perm. to appeal denied (Tenn . 1993). Ms. Presson
testifie d that Defendant produced and viewed the video in order to satisfy his own
sexual d esires. T his issue is without m erit.
III.
Defendant argues that the word “lascivious” is unconstitutionally vague under
the statute and as applied by the trial court. Again , the sta tute do es no t spec ifically
define the word “lascivious ” but the trial co urt defined “lascivious ” as “tend ing to
excite lust; lewd; inde cent.” W e are req uired to construe criminal statutes according
to the “fair import of their terms.” Tenn. Code Ann. § 39-11-104. That construction
requires reference to “judicial decisions and common law interpretations, to prom ote
justice, and effect the objectives of the criminal code.” Tenn. Code Ann. § 39-11-
104. Among the most prominent of the tenets of statutory construction is the
requirement that courts must construe s tatutes so as to g ive effect to legislative
intent. See, e.g., Wilson v. Johnson County, 879 S.W .2d 807, 709 (Tenn. 199 4).
That intent is to be determined by the natural and ordinary meaning of the language.
Congress substituted the term “lascivious” in place of “lewd” in the federal
statute dealing with the protection of children. 18 U.S.C.A. § 2256(2)(E). In doing
so, Cong ress ack nowled ged tha t “‘[l]ewd’ has in the past b een eq uated w ith
‘obsc ene’; this change is thus intended to make it clear that an exhibition of a ch ild’s
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genitals does n ot have to meet the obscenity standard to be unlawful.” 130 Cong.
Rec. S3510, S 3511 (daily ed. M ar. 30, 1984) (state ment of Se n. Specter).
“‘Lascivious’ is no different in its meaning than ‘le wd,’ a commonsensical term whose
constitution ality was specifically upheld in Miller v. Califo rnia [citations omitted] and
New York v. Ferber [citation s om itted].” Weigand, 812 F.2d 12 39 (9th Cir. 1987 ),
cert. denied, 484 U.S . 856, 108 S. Ct. 164 , 98 L. Ed . 2d 118 (1987). F urther, our
supreme court has also noted that definitions in this State’s obscenity statutes,
including the “lewd exhibition of the genitals,” were written to comply with the
language approved in Miller v. California (citation omitted) . See Taylor v. S tate, 529
S.W .2d 692 , 696-97 (Tenn . 1975).
Defendant also argues that Tennessee Code Annotated section 39-17-1002
does not give fair warning to people of common intelligence as to the meaning of
“lascivious .” However, this Court has previously stated that the use of the words
“lewd, lascivious, and obscene” are sufficient descriptions to put ordinary persons
of common intelligence on notice as to wha t condu ct is prohib ited. State v. Carter
687 S.W.2d 292 (Tenn. Crim. A pp. 198 4), perm. to appeal denied (Tenn. 198 5).
Further, in State v. Falin, this Court upheld the constitution ality of Tennessee Code
Annotated section 39-17-1005, specifically stating that “[a]ll the terms in the statute
can be und erstood by their com mon u sage, e xcept perhaps fo r ‘prom ote’ wh ich is
defined in § 37-17 -102(5) [s ic].” C.C.A. No. 03C01-9210-CR-00340, slip op. at 4.
W e find that the word “lascivious” in the statute is not unconstitutionally vague, and
thus, De fendan t’s issue is w ithout me rit.
IV.
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Defendant argues that the trial court did not give appropriate weight to the
mitigating factor of no prior criminal history, and that he is entitled to an alternative
sentence.
When an accused challenges the length, range, or the manner of service of
a sentence, this court has a duty to conduct a de novo review of the senten ce with
a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative
showing in the re cord th at the tria l court considered the sentencing principles and
all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).
In conducting a de novo review of a senten ce, this Court m ust consider the
evidence adduc ed at trial an d the sen tencing h earing, the presen tence re port, the
principles of sen tencin g, the a rgum ents o f coun sel relative to sentencing
alternatives, the nature of the offense, and the defendant’s potential for
rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955-
56 (Tenn . Crim App . 1996).
If our review reflects tha t the trial court fo llowed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and that
the trial court's findings of fact are adequately supported by the record, then we may
not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,
we find that the trial court considered the proper s entenc ing princip les and s tated its
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reasons and fin dings on the record . Ther efore, r eview by this court is de novo with
a presumption of correctness.
The trial court foun d the follow ing enh ancem ent factors to be app licable to
Defendant’s sentence:
(1) Defendant was a leader in the commission of an
offense involving two (2) or more criminal actors;
(2) The offense involved more than one victim; and
(3) Defe ndant a bused a position of private trus t.
Tenn. Code Ann. § 40-35-114(2), (3) and (15). As a mitigating factor, the co urt
found Defenda nt’s lack of a criminal record to apply. Tenn. Code Ann. § 40-35-
113(13).
Defendant was convicted of a Class B felony as a Range I Standard O ffender.
The sentencing ra nge for a Range I Standard Offender convicted of a Class B felony
is not less than eight (8) years nor more than twelve (12) years. Tenn. Code Ann.
§ 40-35-112 (a)(2). The presumptive sentence for a Class B felony shall be the
minimum sentence in the range if there are no enhancement or mitigating factors.
Tenn. Code Ann. § 40-35-210(c). Should there be enhancement and mitigating
factors, the court must start at the minimum sentence in the range, enhance the
sentence within the range as appropriate for the enhancement factors, and then
reduce the sentence within the range as appropriate for the mitigating factors. Tenn.
Code Ann. § 40-35-210(c). If the trial judge complies with the purposes and
principles of sentencing and his findings are adequately supported by the record,
then the weigh t assigne d to the ex isting enh ancing and m itigating fac tors is g enera lly
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left to his or her discretion. See State v. Mars hall, 870 S.W.2d 532, 541 (Tenn.
Crim. App.), perm. to appeal denied (Tenn. 1993). The trial court in the case sub
judice, imposed a ten (10) year sentence for the Class B felony conviction. The trial
court did co nside r the m itigating factor in this cas e, but in light of a ll the evidence
presented at trial, that mitigating factor did not weigh heavily against the
enhancement factors. Ev en if som e eviden ce of m itigation exists , where the
mitigation factors are strongly ou tweighe d by the e nhanc emen t factors, the
maximum sentence may be warrante d. See State v. Ruane, 912 S.W.2d 766, 785
(Tenn. Crim. App. 1 995). T he gre at weig ht attribu able to the ap plicab le
enhancement factors more than justifies the less than maximum ten (10) year
sentence imposed in this case.
Defendant also sug gests tha t he is entitled to be plac ed on p robation.
Howeve r, because the trial court justifiably imposed a sentence in excess of eight
years, as previously discussed, Defendant is not eligible for probation. Tenn. Code
Ann. § 40-35-303(a). Furthermore, Defendant offered no persuasive argument a t
the sente ncing hearing as to why pro bation, or any othe r type of alternative
sentence, would be appropriate in this case. We find that the trial court was correct
in ordering a senten ce of total co nfinem ent. This issue is with out me rit.
Based on all the foregoing, the judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
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___________________________________
JOHN H. PEAY, Judge
___________________________________
L. T. LAFFERTY, Special Judge
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