State of Tennessee v. Thomas William Whited

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

The defendant, Thomas William Whited, was convicted of nine counts of especially
aggravated sexual exploitation of a minor, a Class B felony; one count of attempted
especially aggravated sexual exploitation of a minor, a Class C felony; thirteen counts of
observation without consent, a Class A misdemeanor; and one count of attempted
observation without consent, a Class B misdemeanor. The defendant received an effective
sentence of twenty-two years. On appeal, the defendant argues that: (1) the evidence is
insufficient to support a finding that the defendant used a minor in the production of material
that included the minor engaging in “sexual activity”; (2) the trial court erred in refusing to
provide the jury with his proposed special instructions; (3) the trial court erred in refusing
to permit cross-examination of the victims at the sentencing hearing; and (4) the trial court
erred in imposing consecutive sentencing. After a thorough review of the record, the briefs
of the parties, and the applicable law, we affirm the judgment of the criminal court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D AVID A.
P ATTERSON, S P. J., joined. C AMILLE R. M CM ULLEN, J., filed a dissenting opinion.

Mark Stephens, District Public Defender, Knoxville, Tennessee, for the appellant, Thomas
William Whited.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Randy Nichols, District Attorney General; and Joanie Stewart and Philip Morton,
Assistant District Attorneys General, for the appellee, State of Tennessee.
 OPINION

Facts and Procedural History

This case arose after the defendant used his cell phone to secretly record his daughter,
victim one,1 in her bathroom and both victim one and her friend, victim two, in victim one’s
bedroom. The defendant recorded a series of eleven videos from June 21, 2012, to August
10, 2012.

On the evening of August 15, 2012, the defendant’s wife saw a phone on her bedroom
dresser that she believed belonged to her. She picked up the phone to charge it, and she
realized that it was not her phone when she saw the screen saver. The phone belonged to the
defendant, although he was not currently using the phone. She opened the photo gallery of
the phone and saw pictures that she did not recognize. After going through the photographs,
she realized that there was a video of the defendant setting up his phone to record a video of
their daughter in the bathroom. She discovered multiple videos on the phone and asked the
defendant for an explanation. When he offered none, his wife told him that he needed to
leave the residence. The defendant told his wife that he was sorry and that both of his
parents had molested him when he was a child. The defendant then left the residence and sat
in his vehicle for several moments until his wife called him and told him that he needed to
leave, and the defendant complied.

The next morning, the defendant was supposed to let victim one’s brother take her to
school. The defendant returned to the residence and would not allow victim one’s brother
to take her to school alone, so victim one’s brother and the defendant took her to school. The
defendant’s wife informed her boss what she had discovered on the defendant’s phone, and
she then got in touch with police. She had the phone containing the videos with her, and she
asked police to come to her work place. Police arrived, and the defendant’s wife gave her
consent for police to take the phone.

After watching the videos, the defendant’s wife recognized that they were filmed in
the guest bathroom and their daughter’s bedroom. The children were the primary users of
the guest bathroom, and victim one did not share her room with any of her siblings. The
defendant’s wife kept hand towels in a basket on the guest bathroom sink for the children to

1
In order to protect the privacy of the minor victims, we will refer to them as victim one and victim
two.

2
use, and the defendant hid the phone in this basket when recording victim one in the
bathroom. The defendant’s wife changed the towels about once a week and shortly before
discovering the videos, she noticed that the towels had recently become disheveled. She
thought that it was strange that the towels needed frequent straightening because the children
did not usually take the time to remove a towel when they used it. The towels had fallen over
to the point where it looked like items had been moved inside of the basket.

Cyber forensics investigator James Smithhart examined the defendant’s phone and
was initially unable to find any of the videos. However, he discovered that the videos were
stored in the images folder, rather than the video folder of the phone. The default setting of
the defendant’s phone model was to save videos in the video folder and saving videos in the
image folder required deliberate action by the user. He found eleven videos that matched the
allegations made by the defendant’s wife, nine of which provided the basis for the
defendant’s especially aggravated assault convictions.

The first video showed the defendant placing the camera in a basket on the bathroom
sink to record the front of the shower. The defendant spent several minutes hiding and
adjusting the camera, and at one point he stepped back toward the shower, appearing to
gauge how the camera would depict someone in front of the shower. He was captured on
film from his waist up. The victim entered the bathroom twenty seconds after the defendant
left. As she removed her clothes, she was facing the camera. The camera was positioned to
depict the victim from the top of her pubic area to the top of her head. Several times
throughout the video, the victim stood in front of the camera, and her breasts were in the
center of the recording. Her buttocks and breasts were also visible when she entered the
shower. After she exited the shower, she was inches away from the camera, and her right
breast was again in the center of the recording as she styled her hair.

In the second video, the defendant hid the camera in victim one’s bedroom, and the
camera was aimed at the center of the bedroom. The positioning of the camera made a
person standing in the center of the room the primary focus of the recording. The victim
entered the bedroom less than one minute after the defendant hid the camera. The buttocks
of one of the victims was visible as she changed out of a swimsuit, and her breasts were
visible as well. The defendant retrieved the camera one minute after the victim exits the
bedroom.

In the third video, the defendant placed the camera in the bathroom, and the victim
entered two minutes later. When the victim was standing in front of the mirror, the position
of the camera framed the victim from her pubic area to the top of her chin, capturing less of
her face than the first recording did. The victim’s breasts were visible as she stood in front
of the camera, and her breasts, buttocks, and pubic area were briefly visible as she stepped

3
in and out of the shower. The victim’s breasts were intermittently visible as she stepped in
and out of frame, and the top of her pubic area and her breasts were visible as she stood in
front of the sink for a period of time.

The next relevant video was recorded in victim one’s bedroom. Both victims entered
the bedroom wearing swimsuits less than one minute after the defendant hid the camera. The
recording showed victim two’s breast as she stands in the center of the room changing her
clothes. The defendant returns for the camera less than thirty seconds after the victims left
the room.

In the next video, the defendant entered the bathroom while the victim was already
in the shower. He used an object to position and hide the camera. The defendant positioned
the camera toward the rear of the shower, instead of toward the front as he did in the previous
two videos recorded in the bathroom. The video captured the victim’s breasts and buttocks
as she exited the shower. Her breasts were also at the center of the frame as she stood in
front of the camera drying off. The defendant entered the bathroom and collected the camera
thirty seconds after the victim exited the bathroom.

In the sixth video, the defendant again aimed the camera toward the rear of the
shower. Twenty seconds later, the victim entered the bathroom, and the defendant told her
to get into the shower. The victim’s breasts, buttocks, and the top of her pubic area were
briefly visible when she stepped into the shower. The victim’s breasts were again seen as she
exited the shower and visible while she dried off in front of the camera. The defendant
retrieved the camera three minutes after the victim left the bathroom.

In the next video, the defendant repositioned the camera to record the middle of the
shower. The victim entered the bathroom three minutes later, and her breasts were briefly
visible. The recording showed the victim in her underwear as she maneuvered to turn on the
shower. Her breasts and buttocks were visible as she exited the shower, and the profile of
her breast, buttocks, and pubic area were intermittently visible as she dried off and moved
about the bathroom.

In the eighth video, the defendant hid the camera and pointed it toward the middle of
the shower. Forty seconds after the defendant finished adjusting the camera, the victim
entered the bathroom. The top of the victim’s buttocks was exposed as she remained
standing with her back to the camera. Her breast and pubic area were visible as she stepped
out of the shower and began to put on her clothes. Her breasts were visible after she put on
her underwear, and she briefly leaned directly over the camera to retrieve a towel. Her
breasts continued to remain visible as she put on her pants and stood inches away from the
camera.

4
 In the final video, the defendant hid the camera in victim one’s bedroom, and the
victims entered the bedroom six seconds after he positioned the camera. One of the victims
asks what he is doing in the room, and he replied that he was looking for markers. The
camera was pointed toward the center of victim one’s bed, and victim one’s right breast was
briefly visible as she changed out of her swimsuit. The camera then showed victim one’s
buttocks as she continued to change her clothes.

Both victim one and victim two were unaware that the defendant was secretly filming
them. Both victims were distraught at the thought of the defendant recording them because
he was victim one’s father, and victim two viewed him as a father figure.

At the conclusion of the State’s proof, defense counsel asked for a special jury
instruction that defined the word “lascivious.” The trial court denied the request, finding that
it could place an unfair burden on the State to prove factors that were not a part of the statute.
The trial court also denied the defense’s request to include the instruction that photography
of an undressed minor by itself was insufficient to sustain a conviction for especially
aggravated sexual exploitation for a minor. At the conclusion of the proof, the jury found
the defendant guilty of nine counts of especially aggravated sexual exploitation of a minor,
thirteen counts of observation without consent, one count of attempted especially aggravated
sexual exploitation of a minor, and one count of attempted observation without consent.

At the sentencing hearing, both victims and victim one’s mother read their victim
impact statements aloud to the court. In her statement, victim two mentioned that she had
been receiving outpatient therapy and that at one point she had attempted to physically harm
herself. In response to a question by the prosecutor at the conclusion of her statement, victim
two stated that she attempted to harm herself due to the depression that she experienced as
a result of the defendant’s crimes. The trial court did not permit defense counsel to cross-
examine any of the witnesses. The parties agreed that the defendant was a standard, Range
I offender, and the court found that several enhancement and mitigating factors were
applicable. The court gave great weight to enhancement factor fourteen, abuse of a position
of public or private trust, because the defendant used his position as a father to victim one
and a father figure to victim two to facilitate his crimes. The court found that the fact that
the defendant’s actions did not threaten or cause serious bodily harm slightly applied as a
mitigating factor. The court also found the defendant’s lack of a prior criminal history to be
a mitigating factor, along with his military history and steady work history. In considering
consecutive sentencing, the court found that the defendant did commit two or more statutory
offenses involving sexual abuse of a minor where the aggravating circumstances arose from
the relationship between the defendant and the victims.

The trial court sentenced the defendant to serve twelve years for the first especially

5
aggravated sexual exploitation of a minor conviction and to serve ten years for each of the
remaining especially aggravated sexual exploitation of a minor convictions. The trial court
also sentenced the defendant to serve six years for the attempted especially aggravated sexual
exploitation of a minor conviction, eleven months and twenty-nine days for each of the
observation without consent convictions, and six months for attempted observation without
consent, all to be served concurrently to the twelve-year sentence for especially aggravated
sexual exploitation of a minor. The court ordered the defendant to serve one of the ten-year
sentences for especially aggravated sexual exploitation of a minor consecutively to the
twelve-year sentence for especially aggravated sexual exploitation of a minor for an effective
sentence of twenty-two years.

ANALYSIS

I. Sufficiency of the Evidence

The defendant argues that the evidence is insufficient to support his convictions for
especially aggravated exploitation of a minor and attempted especially aggravated
exploitation of a minor. Specifically, he contends that the videos did not depict the victims
engaging in “sexual activity” because nudity alone does not render an image “lascivious”
without the presence of the factors enumerated in United States v. Dost, 636 F. Supp. 828,
832 (S.D. Cal. 1986), and he claims that the nudity of the victims is the only Dost factor
applicable to his case.

When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is “whether, after reviewing the evidence in the light most favorable to the
State, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “‘the State
is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.’” State v. Elkins, 102 S.W.3d 578, 581 (2003)
(quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)) . Therefore, this court will not
re-weigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)
(superseded by rule). Instead, it is the trier of fact, not this court, who resolves any questions
concerning “the credibility of witnesses, the weight and value to be given the evidence, as
well as all factual issues raised by the evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is then
shifted to the defendant on appeal to demonstrate why the evidence is insufficient to support
the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court applies the
same standard of review regardless of whether the conviction was predicated on direct or
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

6
 A. Overview

Tennessee Code Annotated section 39-17-1005(a)(1) (2010) states that “[i]t is
unlawful for a person to knowingly promote, employ, use, assist, transport, or permit a minor
to participate in the performance of, or in the production of, acts or material that includes the
minor engaging in: (1) Sexual activity.” “Sexual activity” includes “[l]ascivious exhibition
of the female breast or the genitals, buttocks, anus or pubic or rectal area of any person.” Id.
§ 39-17-1002(8)(G).

The defendant’s challenge to the sufficiency of the evidence hinges on the definition
of “lascivious” as used in the statute. Although the statute does not define “lascivious,”
Black’s Law Dictionary defines the term as: “tending to excite lust; lewd; indecent;
obscene.” Black’s Law Dictionary 897 (8th ed. 2004). Further instructive in our analysis are
the six factors set out by the Dost court to determine whether an image of a minor constitutes
lascivious exhibition:

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 sexually
suggestive, i.e. in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or
inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit
a sexual response in the viewer.

Dost, 636 F. Supp at 832. These factors should be considered “among any others that may
be relevant in the particular case.” Id. The Dost court observed that a visual depiction of a
minor “need not involve all of these factors to be a ‘lascivious exhibition of the genitals or
pubic area.’ The determination will have to be made based on the overall content of the
visual depiction, taking into account the age of the minor.” Id. Courts have acknowledged
that the Dost factors should not be applied exclusively, but many courts have found the
factors useful in determining whether a visual depiction of a minor is “lascivious.” State v.

7
John Michael Whitlock, No. E2010-00602-CCA-R3-CD, 2011 WL 2184966, at *4 (Tenn.
Crim. App. June 6, 2011) (citing United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009)
(stating that the Dost factors “are neither exclusive nor conclusive, but operate as merely ‘a
starting point’ ”); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008) (“Although the
Dost factors are not definitional, they are useful for assessing the sufficiency of evidence, and
pose questions that are (at least) germane to the issue of lasciviousness.”); United States v.
Campbell, 81 F. App’x 532, 536 (6th Cir. 2003) (noting that the list of Dost factors are “not
exhaustive” but that they “provide a framework for analyzing the image in its entirety”);
State v. Roberts, 796 So.2d 779, 786-87 (“[W]e find the Dost factors helpful in our analysis
herein but do not find them all inclusive or necessarily applicable to every situation.”); State
v. Dubois, 746 N.W.2d 197, 208 (S.D. 2008) (“The Dost factors are neither exhaustive nor
mandatory; however, they provide a workable criterion to an otherwise case-specific
inquiry.”)). While courts agree that the factors are useful, there is disagreement as to how
the factors should be applied.

B. Application of the Sixth Factor

The application of the sixth Dost factor, in particular, has proved the most
problematic. See United States v. Amirault, 173 F.3d 28, 34 (1st Cir. 1999) (“Is this a
subjective or objective standard, and should we be evaluating the response of an average
viewer or the specific defendant in this case? Moreover, is the intent to elicit a sexual
response analyzed from the perspective of the photograph’s composition, or from extrinsic
evidence (such as where the photograph was obtained, who the photographer was, etc.)?”).
Some courts have elected to employ an objective standard that asks whether the image was
intended or designed to elicit a sexual response in the average viewer. See Amirault, 173
F.3d at 35 (“[T]he focus should be on the objective criteria of the photograph’s design.”);
United States v. Villiard, 885 F.2d 117, 125 (3rd Cir. 1989) (“If we were to conclude that the
photographs were lascivious merely because Villiard found them sexually arousing, we
would be engaging in conclusory bootstrapping rather than the task at hand—a legal analysis
of the sufficiency of the evidence of lasciviousness.”). Other courts utilize a subjective
approach and analyze the depiction in terms of whether it would elicit a sexual response in
the defendant or a like-minded pedophile. See Overton, 573 F.3d at 689 (“The homemade
images of [the victim] were intended and designed to elicit a sexual response in the
voyeur—namely in Overton himself or likeminded individuals.”); United States v. Rivera,
546 F.3d 245, 250 (2d Cir. 2008) (concluding that the sixth Dost factor applied when “[a]
reasonable jury could therefore find that Rivera composed the images in order to elicit a
sexual response in a viewer—himself.”). Courts applying the subjective analysis have
indicated that the application of the sixth Dost factor could turn on the defendant’s level of
involvement with the production of the image. See Rivera, 546 F.3d at 252-53 (noting that
some of the criticism of the sixth factor “is mitigated once one distinguishes between the

8
production of child pornography and possession” as “[i]t matters whether production or
possession is the charge” and distinguishing cases such as Amirault and Villard, where the
factor was applied objectively, because the defendants were charged only with the possession
or transportation of child pornography); see also Overton, 573 F.3d at 688 (stating that the
sixth factor was particularly useful where “the criminal conduct at issue relates to a
defendant’s role in the production of the exploitative images under review, and not merely
the possession of illicit materials.”) (emphasis in original); Commonwealth v. Sullivan, 972
N.E.2d 476, 494 (Mass. App. Ct. 2012) (“The problematic role played by the sixth factor is
heightened in a possession case given that the possessor of a photograph is not necessarily
the one who ‘intended or designed’ the composition.”) (Milkey, J., dissenting).

In Tennessee, three panels of this court have applied the Dost factors to determine
whether a visual depiction of a minor constituted “sexual activity.” See State v. John
Michael Whitlock, 2011 WL 2184966, at *7 (concluding that evidence was insufficient to
support conviction for sexual exploitation of a minor where defendant filmed a minor child,
dressed in a bathing suit, at a swimming pool and twice briefly focused the video on the
victim’s pubic area because only the first Dost factor was “marginally met” and examining
the video “in the totality of the circumstances, and in light of the other Dost factors” led to
the conclusion that the video did “not constitute lascivious exhibition of the girl’s pubic
area.”); State v. Gary Stephen Mayes, No. E2004-02344-CCA-R3-CD, 2005 WL 2416620,
at *10 (Tenn. Crim. App. Oct. 3, 2005) (concluding that Dost factors one, three, and six were
present when the defendant filmed clothed victims, and “the videotape contain[ed] numerous
close-up images of the victim’s breasts and crotch,” which “were filmed as the victim
assumed unnatural and obviously uncomfortable positions,” including one in which “the
defendant zoom[ed] the camera lens down the front of her gaping shirt to her breasts, where
he focus[ed] at length.”), perm. app. denied (Tenn. Feb. 21, 2006); State v. Larry Dixon, No.
01C01-9802-CC-00085, 1998 WL 712344, at *2 (Tenn. Crim. App. Oct. 13, 1998)
(concluding that Dost factors one, two, four, and six were present when the defendant,
behind a hidden two-way mirror, filmed two minor girls taking a bath, his wife instructed the
victims to pose as for a photograph, and the defendant viewed the video before having sexual
intercourse with his wife), perm. app. denied (Tenn. Mar. 1, 1999).

In State v. John Michael Whitlock, our court provided some clarity to Tennessee’s
approach to the analysis of the sixth factor, stating that “we conclude that the sixth Dost
factor must be analyzed objectively rather than subjectively.” Id. at *6. The court indicated
that the sixth factor “should be applied when the visual depiction is intended or designed to
elicit a sexual response in the average viewer, rather than looking to the subjective response
by the defendant.” Id. (emphasis in original). The court reasoned that analyzing the sixth
Dost factor “by examining a defendant’s subjective reaction to a visual depiction of a minor,
no matter how innocent, [] would be tantamount to convicting a defendant because of his

9
‘impure’ thoughts.” Id. However, the court limited this analysis to the charge of sexual
exploitation of a minor, noting that “[w]hether the same analysis should be employed when
a defendant is convicted of especially aggravated sexual exploitation of a minor or
aggravated sexual exploitation of a minor is a question for another day.” Id. at *6 n.7. Citing
to the Whitlock court’s concern with the subjective application of the sixth factor “and the
fact that no other jurisdiction appears to differentiate between the objective and subjective
test depending on the severity of the offense charged,” the defendant contends that the sixth
factor should be applied objectively. However, as we will explain, we respectfully disagree
with the defendant’s contention.

Before holding that courts should apply the sixth factor objectively to convictions for
sexual exploitation of a minor, the John Michael Whitlock court observed that a panel of this
court previously appeared to apply the sixth factor subjectively. In Larry Dixon, the
defendant was convicted of especially aggravated sexual exploitation of a minor for secretly
recording the minor victims nude in a bathtub. Larry Dixon, 1998 WL 712344, at *2. The
Larry Dixon court concluded that testimony that the defendant viewed the videotape before
engaging in sexual intercourse “support[ed] the argument that the video was intended to elicit
a sexual response in the viewer.” Id. at *2. Because the defendant was responsible for
creating the videotape, his particular usage of the tape was relevant in ascertaining his
subjective intent in creating the tape. By leaving open the question of whether the sixth Dost
factor should be applied objectively or subjectively to the crime of aggravated or especially
aggravated sexual exploitation of a minor, the John Michael Whitlock court implied that the
standard could be contingent upon the defendant’s level of involvement with the production
of the image.2

In Tennessee, the definition of especially aggravated sexual exploitation of a minor
contains two essential elements: (1) that the defendant “promote, employ, use, assist,
transport, or permit a minor to participate in” (2) a depiction of sexual activity. T.C.A. § 39-
17-1005(a)(1). The terms “promote, employ, use, assist, transport, or permit” implicate the
defendant’s level of involvement in the production of the material. However, the definition
of sexual exploitation of a minor contains only one essential element: that the defendant
“possess” an image depicting a minor engaged in sexual activity. A defendant is convicted
of especially aggravated sexual exploitation of a minor due to the defendant’s role in the
creation of the image and the contents of the image, while a conviction for sexual
exploitation of a minor is based on the contents of the image itself. Effectively, sexual
exploitation of a minor is a crime of possession, while especially aggravated sexual

2
We note that although the defendant in John Michael Whitlock filmed the material at issue, the
court applied the sixth Dost factor objectively. However, the defendant was convicted only of sexual
exploitation of a minor and acquitted of the charge of especially aggravated sexual exploitation of a minor.

10
exploitation of a minor is a crime of production. As a result, the intent of the creator takes
on greater relevance than it would in a case where a defendant is convicted simply for
possessing material depicting a minor engaged in sexual activity. When a defendant is
convicted for his role in the production of such material, it follows that the intent in the
production should be analyzed from the perspective of the defendant or a group of like-
minded pedophiles. Therefore, we conclude that in cases of especially aggravated sexual
exploitation of a minor, the sixth Dost factor should be applied subjectively.

In the case sub judice, the defendant contends that the recordings of the victims
merely depict nudity and are insufficient to support a conviction for especially aggravated
sexual exploitation of a minor. However, an application of the Dost factors to the videos
mandates the opposite conclusion.

We acknowledge that using a camera to secretly capture images of minors presents
a factually close case. See United States v. Steen, 634 F.3d 822, 827 (5th Cir. 2011)
(concluding that the victim’s genital and pubic region was not the focal point of a fifteen-
second video secretly recorded in a tanning salon when pubic region was visible for 1.5
seconds); United States v. Johnson, No. 2:10-CR-71-FtM-36DNF, 2011 WL 2446567, at *5
(M.D.Fla. June 15, 2011) (concluding that stationary cell phone placed in a bathroom to
record the victim did not satisfy the first factor when the minor’s pubic region was visible
only for a brief time and “there was no close-up, zoom, or highlight of the minor’s pubic
area”); State v. Gates, 897 P.2d 1345, 1350-51 (Ariz. Ct. App. 1994) (concluding stationary
camera used to record minors changing clothes and showering did not satisfy the first Dost
factor when the recording did not focus on the genitals or pubic areas of the victims); but see
United States v. Clark, Crim. A. No. 09-33-GMS, 2010 WL 3488138, at *5 (D.Del. Aug. 30,
2010) (concluding that the first factor was applicable to a recording obtained via hidden cell
phone when the recording depicted areas of the victim’s body normally covered by clothing
from distances of a few feet to a few inches away and that a jury could reasonably infer that
the defendant framed the camera, which was waist-high and resulted in a focus on the genital
areas of the victim’s body, in order to capture images of the victim’s genital or pubic areas);
People v. Sven, 848 N.E.2d 228, 231-32 (Ill. App. Ct. 2006) (concluding that a hidden
stationary recording of a minor in a bathtub satisfied the first factor when some portions of
the recording depicted only the bathroom, but all that was visible during other parts of the
recording were the minor’s genitals and buttocks). Here, while the defendant did not
physically zoom in the camera to make the victims’ breasts and genital area the focal point
of the recording, he achieved this same effect through the placement and position of the
camera.

The bathroom videos were recorded by a camera that was hidden in a basket on the
bathroom sink, which was at waist level. The videos depicted the victim fully nude as she

11
entered and exited the shower and particularly captured her breasts as she stood in front of
the sink, only inches away from the camera. The defendant re-positioned the camera to
record different areas of the shower, leading to the reasonable inference that he adjusted the
camera to better capture longer and better quality videos of the victim’s breasts and genitalia.
Similarly, the camera in the bedroom videos was specifically placed so that the buttocks and
breasts of the victims were in the center of the screen when the victims stood in the center
of the room. Although there are times during the recordings where the victims are not in the
frame, this does not offset the portions of the recordings where the positioning and framing
of the camera resulted in a focus on the victims’ breasts and genitalia. See Sven, 848 N.E.2d
228 at 233 (concluding that an examination of individual parts of a secret bathroom
recording, rather than the entirety of the recording was proper in the application of the first
factor, as portions of the tape showing only the bathroom did “not serve to dilute other
portions where [the victim] appear[ed] naked”). We conclude that the first factor is met.

All of the videos depict the victims either fully or partially nude, satisfying the fourth
factor, and we conclude that the sixth factors also applies. The videos depict the victims’
breasts, buttocks, and pubic areas during private moments where they believed that they were
alone. The defendant was responsible for recording each video, often setting up the camera
seconds before the victims entered the bathroom or bedroom. There were a series of eleven
videos recorded, nine of which showed the victims either partially or fully nude. When his
wife confronted him about the videos, the defendant stated that he was sorry and that both
of his parents had molested him. The position of the camera indicates that the defendant
selected the locations to film to best capture the victims’ nudity. The defendant retrieved the
camera almost immediately after the victims left the bathroom and the bedroom. He covertly
stored the videos on his phone, saving them under the “pictures” folder. As a result, the jury
could reasonably infer that he created the recordings to elicit a sexual response in himself or
a like-minded pedophile. We conclude that the evidence was sufficient to support the
defendant’s convictions for especially aggravated sexual exploitation of a minor.

II. Jury Instructions

The defendant argues that the trial court erred by failing to include his two requested
special jury instructions for the charge of especially aggravated sexual exploitation of a
minor. The defendant’s first request stated:

To find that the content depicted in the video was ‘lascivious,’ some
appropriate factors to consider are:

(1) Whether the focal point of the visual depiction is on the child’s
genitals or pubic area;

12
 (2) Whether the setting of the visual depiction is sexually
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;
(4) Whether the child is fully or partially clothed, or nude;
(5) Whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity; and
(6) Whether the visual depiction is intended or designed to elicit a
sexual response in the viewer.

Factor (6) should be applied when the visual depiction is intended or
designed to elicit a sexual response in the average viewer, rather than looking
to the subjective response of the defendant.

The defendant’s second requested instruction read: “Photography of a undressed minor by
itself is not sufficient to sustain a conviction for this offense.” (case citations omitted).

During a jury-out hearing, the trial court expressed its concern with including the Dost
factors in the jury charge. The court observed that this court stated in John Michael Whitlock
that the Dost factors should not be applied exclusively but were a beneficial starting point
in determining whether an image was lascivious. Noting that juries “put a lot of stock in
what the [j]udges have to say,” the trial court opined that charging the jury with the Dost
factors could unduly influence the jury. The court reasoned that an instruction to the jury to
consider the Dost factors in addition to the circumstances surrounding the creation of the
video could be prejudicial to the defendant, as the jury could be inclined to convict the
defendant simply because he used a hidden camera to record the victims. The court also
expressed concern with instructing the jury to consider only the Dost factors in determining
lasciviousness. The court reasoned that because the Legislature had not adopted the factors,
such an instruction could place an undue burden on the State to prove the existence of factors
not included in the statute. The trial court denied the request to instruct the jury regarding
the Dost factors but stated that both the State and defense counsel could make arguments to
the jury regarding the meaning of “lascivious.” The trial court also declined to adopt the
defendant’s instruction that the analysis of the sixth factor was an objective one, finding that
because it was not charging the jury with the Dost factors, inclusion of the objective standard
would serve only to confuse the jury. However, the trial court did permit trial counsel to
argue in closing arguments that the application of whether the image was lascivious should
be measured based upon the response of the average viewer.

The trial court also denied the defendant’s second instruction request, finding that the

13
definitions of “sexual activity” and “lascivious” made it sufficiently clear to the jury that
mere nudity of a minor was not sufficient to sustain a conviction for especially aggravated
sexual exploitation of a child. The trial court then gave the jury the pattern jury instruction
for especially aggravated sexual exploitation of a minor, which contained the definitions of
“sexual activity” and “lascivious.” The defendant now contends that the instruction was
error because the jury “misunderstood the law to be applied” and improperly considered the
defendant’s subjective reaction to the videos.

Under the United States and Tennessee Constitutions, a defendant has a right to trial
by jury. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). A defendant also has a right
to a correct and complete charge of the law, so that each issue of fact raised by the evidence
will be submitted to the jury on proper instructions. Id. In evaluating claims of error in jury
instructions, courts must remember that “‘jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning.’” State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)
(quoting Boyde v. California, 494 U.S. 370, 380-381 (1990)). When the trial court’s
instructions to the jury correctly, fully, and fairly state the applicable law, it is not error to
refuse to give a special requested instruction. State v. Inlow, 52 S.W.3d 101, 107 (Tenn.
Crim. App. 2000); State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). This
court must review the entire jury charge; we can find error only if, when read as a whole, the
charge fails to fairly submit the legal issues or misleads the jury as to the applicable law.
State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).

We conclude that the trial court did not err in refusing to provide the jury with the
defendant’s special instructions. We agree with the Whitlock court that while the Dost
factors should at least be considered in determining whether an image is lascivious, “we are
mindful that the Dost ‘factors are neither comprehensive nor necessarily applicable in every
situation.’” State v. John Michael Whitlock, 2011 WL 2184966, at *6 (quoting Amirault, 173
F.3d at 32). As a result, the Dost factors should be applied cautiously. See United States v.
Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (observing that “the Dost factors have fostered
myriad disputes that have led courts far afield from the statutory language. . . . [and]
‘produced a profoundly incoherent body of case law.’”) (citation omitted)); United States v.
Hill, 322 F. Supp.2d 1081, 1085 (C.D.Cal. 2004) (“While the Dost factors attempt to bring
order and predictability to the lasciviousness inquiry, they are highly malleable and subjective
in their application.”); see also Rivera, 546 F.3d at 253 (concluding that it was not error for
the trial court to instruct the jury regarding the Dost factors but noting that “the jury should
not be made to rely on the Dost factors with precision to reach a mathematical result, or to
weigh or count them, or to rely on them exclusively”). The factors are beneficial in
evaluating the sufficiency of the evidence, but they are not definitional. Rivera, 546 F.3d at
250. Because the factors have proved so difficult to apply and function as a “starting point”
for determining whether an image is lascivious, the factors are not a mandatory facet of jury

14
instructions for the crime of especially aggravated sexual exploitation of a minor. Here, the
jury instructions tracked the Tennessee Pattern Jury Instructions in defining the terms “sexual
activity” and “lasciviousness” and did not mislead the jury. Therefore, we conclude that the
trial court acted within its discretion and did not err in declining to instruct the jury regarding
the Dost factors.

The trial court also committed no error in failing to instruct the jury that a visual
depiction must be intended or designed to elicit a sexual response in the average viewer
rather than the defendant. As we stated above, the objective standard advocated by the
defendant is not the appropriate standard to apply. Further, as the trial court observed, a jury
instruction involving the standard to apply in determining whether the image was intended
to elicit a sexual response in the viewer in the absence of an instruction including the Dost
factors could confuse the jury. The trial court’s instructions to the jury, which were taken
verbatim from the Tennessee Pattern Jury Instructions for especially aggravated sexual
exploitation of a minor, correctly, fully, and fairly stated the applicable law.

Similarly, it was not error for the trial court to refuse to instruct the jury that
photography of an undressed minor alone was insufficient to convict the defendant of
especially aggravated sexual exploitation of a minor. The definitions of “sexual activity” and
“lascivious” were sufficient to instruct the jury that more than mere nudity was required to
convict the defendant of the charged offense. Therefore, we conclude that the trial court’s
instructions correctly, fully, and fairly stated the applicable law, and the defendant is not
entitled to relief as to this issue. See Inlow, 52 S.W.3d at 107.

III. Cross-examination of Victims at the Sentencing Hearing

The defendant argues that the trial court violated his Sixth Amendment right to
confront witnesses against him and his right to due process when it denied him the
opportunity to cross-examine the witnesses making victim impact statements or “otherwise
rebut the statements.” Specifically, he contends that he should have been permitted to cross-
examine victim two about her receipt of inpatient psychological treatment and her attempt
to commit suicide and to seek records from the hospital where victim two received treatment.

The Sixth Amendment to the United States Constitution affords a defendant the right
to confront adverse witnesses. A violation of the defendant’s right of confrontation is subject
to a harmless error analysis. Momon v. State, 18 S.W.3d 152, 167 (Tenn. 2000). As the
defendant acknowledges in his brief, the consensus in Tennessee is that the Confrontation
Clause is not applicable at a sentencing hearing. See State v. Stephenson, 195 S.W.3d 574,
590 (Tenn. 2006), (abrogated on other grounds by State v. Watkins, 362 S.W.3d 530 (Tenn.
2012)) (citing Williams v. New York, 337 U.S. 241); State v. Moss, 13 S.W.3d 374, 385

15
(Tenn. Crim. App. 1999); State v. William Edwin Harris, No. M2008-01685-CCA-R3-CD,
2009 WL 1871919, at *6 (Tenn. Crim. App. June 30, 2009), perm. app. denied (Tenn. Nov.
30, 2009).

Tennessee Code Annotated section 40-35-209(b) states that reliable hearsay may be
admitted as evidence if the defendant “is accorded a fair opportunity to rebut any hearsay
evidence so admitted[.]” Relying on this provision and State v. Donald Blevins, No. E2007-
01588-CCA-R3-CD, 2008 WL 3906081, at *3-6 (Tenn. Crim. App. Aug. 26, 2008), the
defendant contends that “due process has been built into the concept of victim impact
statements.”

In Donald Blevins, the trial court denied probation based solely on the victim impact
statement of the victim’s mother, in which she asserted that the defendant had “aggravated”
the victim “for weeks” to sell drugs. Id. at *2. This court reversed the denial of probation,
concluding that the victim impact statement contained unreliable hearsay. Id. at 5. After
excluding the unreliable hearsay in the victim impact statement from consideration of its de
novo review of the trial court’s sentence, this court concluded that none of the factors in
Tennessee Code Annotated section 40-35-103 applied to the defendant and reversed the
denial of probation.3 Contrary to the defendant’s assertion, this case does not establish a due
process right to respond to victim impact statements. Instead, it stands for the proposition
that consideration of unreliable hearsay may not constitute the sole ground for denying an
alternative sentence. See William Edwin Harris, 2009 WL 1871919, at *7.

Here, unlike the victim’s mother in Donald Blevins, the victims testified live at the
sentencing hearing. To the extent that the defendant may be arguing that he did not receive
the opportunity to rebut the written victim impact statements, such an argument is waived.
The defendant informed the trial court that he received the victim impact statements fewer
than ten days before the sentencing hearing. However, he did not request a continuance or
object when the victim impact statements were entered into evidence. See Tenn. R. App. P.
36(a); Moss, 13 S.W.3d at 387 (concluding that when the defendant did not receive the
victim impact statements until the day of the sentencing hearing and trial counsel did not
object or request a continuance, “any issue predicated upon the timeliness of the report [was]

3
The offense in Donald Blevins was committed before the 2005 amendment to Tennessee Code
Annotated section 40-35-102(6) took effect, and the defendant was sentenced under the 2003 version of the
sentencing act, which provided that “an especially mitigated or standard offender convicted of a Class C, D,
or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of
evidence to the contrary.” Id. at *4 (citing T.C.A. § 40-35-102(6)). Tennessee Code Annotated section 40-
35-103 provides the factors to consider in determining what constitutes “evidence to the contrary.” Id. (citing
T.C.A. § 40-35-103)).

16
waived.”).

Further, we conclude that even if the trial court erred in prohibiting cross-examination
of the victims, such error was harmless because it did not affect the outcome of the case. The
victims’ testimony consisted primarily of a recitation of their victim impact statements, which
we previously stated were properly admitted into evidence. Additionally, the testimony did
not serve as the sole basis for the imposition of the defendant’s sentence. The trial court
noted that consideration of victim two’s victim impact statement did not increase the length
of the defendant’s sentence. The court observed that the victims testified to information that
the court “had already gleaned from the trial” and that the testimony functioned primarily to
“further cement[]” the victims’ testimony at trial. Finally, as we will explain below, the trial
court did not abuse its discretion in imposing a within-range sentence for the defendant. He
is not entitled to any relief as to this claim.

IV. Sentencing

The defendant argues that the trial court erred in imposing consecutive sentences.4
Specifically, he contends that consecutive sentences were improper because multiple
convictions of a sexual offense against a minor do not alone mandate consecutive sentencing,
and he did not satisfy the aggravating criteria in Tennessee Code Annotated section 40-35-
115(b)(5).

A trial court has the ability to impose consecutive sentences if it finds by a
preponderance of the evidence that the defendant falls into one of seven categories, including
that “the defendant is convicted of two (2) or more statutory offenses involving sexual abuse
of a minor with consideration of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of defendant’s undetected sexual
activity, the nature and scope of the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims.” T.C.A. § 40-35-115(b)(5). A trial court’s decision
to impose consecutive sentencing is also reviewed under an abuse of discretion standard with
a presumption of reasonableness. State v. Pollard, S.W.3d 851, 859 (Tenn. 2013). So long
as the “trial court properly articulates reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable, and absent an abuse of discretion, upheld on appeal.” Id. at 862.

4
In his brief, the defendant contends that the trial court placed too much emphasis on enhancement
factor 14, but he concedes that the misapplication of an enhancement factor does not validate an otherwise
in-range sentence. The appropriate range for a Range I, standard offender convicted of a Class B felony is
eight to twelve years. The defendant’s sentences of twelve and ten years fall within that range. Therefore,
we focus our analysis only on whether the trial court properly imposed consecutive sentences.

17
 The court considered the aggravating factors surrounding the defendant’s convictions
for a crime involving the sexual abuse of a minor. The court first addressed the relationship
between the victims and the defendant, finding that victim one was the defendant’s biological
daughter and that victim two was “the emotional daughter” of the defendant. The court noted
that the victims “suffered as much from the break of the relationship [with the defendant] as
from the actual acts that were--were committed against them.” The court found that the
defendant’s undetected sexual activity occurred for a period of one and a half months, a
period the court noted was “not terribly long.” The court noted that the victims’ suffering
began only when the defendant was discovered videotaping them, and although noting that
the degree of the victims’ suffering was not lessened, found that the length of the undetected
activity did not carry much weight as an aggravating factor. The court found that the nature
and scope of the acts were not very aggravating because the defendant limited his conduct
to videotaping, rather than physically touching, the victims. The court found that the residual
physical and mental damage to the victims was extensive based upon both the testimony at
trial and the victims’ impact statements. The court found that consecutive sentencing was
appropriate based upon the defendant’s relationship to the victims and the extent of the
residual damage that the defendant’s actions caused to the victims.

The defendant cites to several cases, including State v. Everett Russ, No. W2012-
00461-CCA-R3-CD, 2013 WL 6500152 (Tenn. Crim. App. Dec. 9, 2013), app. granted
(Tenn. May 15, 2014), for the proposition that the existence of only one aggravating factor
is insufficient to justify the imposition of consecutive sentences. In Everett Russ, this court
examined whether consecutive sentences for the defendant’s convictions for aggravated
sexual battery were appropriate. Id. at *1. The trial court imposed consecutive sentencing,
finding that the nature of the relationship between the defendant and the victim and the
residual physical and mental damage of the victim were aggravating factors making
consecutive sentencing appropriate. Id. at *5. The trial court relied on the expert testimony
and report of a clinical social worker to find that residual physical and mental damage
existed. Id. This court found that the testimony of the clinical social worker “was less than
certain” and that “[t]he record [did] not support the trial court’s finding of residual harm
based on [the clinical social worker’s] testimony.” Id. at *6. The court concluded that the
only applicable aggravating factor was the relationship between the defendant and the victim,
and therefore that the trial court abused its discretion in imposing consecutive sentencing.
Id. However, on May 15, 2014, our supreme court remanded the case for consideration in
light of State v. Pollard, and on July 14, 2014, six days after oral arguments were heard in
this case, this court filed an opinion affirming the defendant’s consecutive sentences. State
v. Everett Russ, No. W2012-00461-CCA-R3-CD, 2014 WL 3511051, at *4 (Tenn. Crim.
App. July 14, 2014). The court stated that “[a]lthough the testimony of the clinical social
worker was less than certain, we will not second-guess a trial court’s weighing of the

18
evidence.” Id. The court concluded that “[t]he trial court provided adequate reasons on the
record for imposing consecutive sentences, and the determination [was] supported by the
record.” Id.

We conclude that the trial court did not abuse its discretion in imposing consecutive
sentences. Not all aggravating factors must be present in order for the trial court to impose
consecutive sentences. State v. Doane, 393 S.W.3d 721, 738 (Tenn. Crim. App. 2011). Even
if not all of the aggravating circumstances apply, consecutive sentencing may be appropriate
if other aggravating factors have been established and carry sufficient weight. See id.; State
v. Everett Russ, 2014 WL 3511051, at *4. Although the span of undetected activity was “not
terribly long” and the nature and scope of the acts were not great, the trial court found that
consecutive sentences were appropriate based upon the defendant’s relationship to the
victims and the residual physical and mental damage to the victims. The defendant created
eleven videos over a length of time, altering the camera angles to maximize the number of
nude images he captured of the unsuspecting victims. He perpetrated these acts against his
own child and a child who regarded him as a father-figure, and both victims testified to
mental anguish caused by the crimes. The trial court properly articulated the reasons for
ordering consecutive sentencing, and these reasons are supported by the record.
Accordingly, the defendant is not entitled to any relief as to this issue.

CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.

_________________________________
JOHN EVERETT WILLIAMS, JUDGE

19