Issue: Was the evidence sufficient to prove the Defendant attempted to produce child pornography where the victim was expected only to change clothes?
Facts: The Victim testified that she found the Defendant’s video camera recording her in her bedroom. She had a routine of showering and then changing in the area of her bedroom in which the camera was found. The Defendant was convicted of Attempted Especially Aggravated Sexual Exploitation of a Minor (colloquially referred to as “creation of child pornography).
Appellate Decision: The intermediate court affirmed the conviction. To constitute child pornography in this situation, the victim must have been engaged in “lascivious exhibition” of her private areas. Tenn. Code Ann. § 39-17-1002(8)(G). In State v. Whited, 506 S.W.3d 416 (Tenn. 2016), the supreme court held that “lascivious exhibition” requires more than “mere nudity” but wrote that a person could nonetheless be convicted of attempt to create child pornography depending on “whether the defendant intended to capture” lascivious material.
The intermediate court held that the evidence could support a conviction for attempt because “the focal point of the video would have been the victim’s private area.”
Review Granted: August 16, 2017.
Prediction: Ben thinks the supreme court is likely to reverse. Since the evidence showed that the Victim’s routine was simply to change clothes after taking a shower, there does not appear to be any evidence that the Defendant would have expected her to do anything “lascivious” rather than displaying “mere nudity,” which would not be child pornography under the statute. Additionally, the intermediate court found other error which is found harmless, but given that this case is at best a close call, the supreme court could also grant a new trial on the basis that the error affected the outcome.