Based upon the current language of the applicable statute, the Tennessee Supreme Court has reversed and dismissed the convictions of a Knoxville-area man for especially aggravated sexual exploitation of a minor in a case in which he secretly videotaped his 12-year-old daughter in various states of undress. The decision, however, lets stand other convictions related to these acts and remanded the case to the trial court for a new trial on different charges.
In a unanimous opinion, the Court ruled that the convictions could not stand because the videos showed only nudity, and current state law requires, in addition to nudity, that the videos also must show the victim engaged in sexual activity.
The Court concluded that the specific videos at issue in this case did not show the victim engaged in sexual activity.
Thomas Whited was convicted by a Knox County jury in 2013 of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. The charges stem from hidden-camera cell phone videos his wife found on Mr. Whited’s phone that showed their daughter entering and exiting the shower as well as the daughter and her 14-year old friend changing out of swimsuits – all taken in the Whiteds’ home.
Mr. Whited appealed to the Court of Criminal Appeals, which, in a divided opinion, affirmed the convictions and sentence, using factors from a federal case often relied upon by courts but not formally adopted in Tennessee.
The Supreme Court looked to Tennessee statutes and determined that the law required that any visual material in a case such as this contain more than mere nudity of a minor; it must also contain “sexual activity” by the minor. Under the language of the state law, the material must “be evaluated based on what is depicted, without reference to the defendant’s subjective intent.” The Court determined that, regardless of Mr. Whited’s intent in making the videos, the content depicted nudity alone, and not a minor engaged in sexual activity.
“[W]e must hold that the videos at issue do not rise to a level at which the trier of fact could reasonably find that they include ‘sexual activity,’ defined as the ‘lascivious exhibition’ of the minor’s private body areas,” Justice Holly Kirby wrote in the opinion.
The Court also noted that the “holding does not mean that the defendant’s conduct does not constitute a criminal offense.” In fact, the Court held that the State may elect to retry Mr. Whited on attempt of the offense of especially aggravated sexual exploitation, which is considered a lesser-included offense of the original crime of which he was convicted. The Court also pointed out that the evidence would have supported a conviction for photography without consent under Tennessee law, but for an exception in the law for photography of a minor with consent of the minor’s parent. In this case the defendant is the victim’s father.
Finally, the decision does not affect the defendant’s other convictions related to this conduct. As a result, the Supreme Court also returned the case to the trial court for resentencing, considering the other 15 convictions that remain.
Read the opinion in State of Tennessee v. Thomas Whited, authored by Justice Holly Kirby.