STATE OF TENNESSEE v. THOMAS WHITED (2016)

JUDGMENT

This case was heard upon the entire record on appeal from the Court of Criminal Appeals, application for permission to appeal having heretofore been granted, and the briefs and argument of counsel.

We hold that, under the three child sexual exploitation statutes, Tennessee Code Annotated sections 39-17-1003, -1004, and -1005 (2014), the content of the prohibited material is judged by the same standard, regardless of whether the accused produced it, distributed it, or merely possessed it. In the instant case, we conclude that the surreptitious videos taken by the defendant do not depict a minor or minors engaging in “sexual activity,” defined by statute as the lascivious exhibition of a minor's private body areas. Tenn. Code Ann. §§ 39-17-1005 (especially aggravated sexual exploitation) and 39-17-1002(8)(G) (definition of “sexual activity”) (2014). For this reason, the videos are insufficient to support the defendant's nine convictions for especially aggravated child sexual exploitation. Accordingly, we reverse and dismiss the defendant's nine convictions for especially aggravated sexual exploitation of a minor. In light of this holding, we remand to the trial court for resentencing based on the convictions that were not challenged on appeal. On remand, the State may, if it so chooses, retry the defendant on the lesser-included offense of attempt.

In accordance with the opinion filed herein, it is therefore ORDERED and ADJUDGED that the judgments of the Court of Criminal Appeals and the criminal court are reversed with respect to the convictions for especially aggravated sexual exploitation and the charges thereon are dismissed.

Costs on appeal are assessed against the Appellee State of Tennessee.