by Douglas Ankney

On January 7, 2019, the Supreme Court of Tennessee ruled that evidence of placing a camera in a teen’s bedroom with the intent of recording her in the nude while changing clothes is insufficient to support a conviction for attempted especially aggravated sexual exploitation of a minor, a/k/a attempted production of child pornography.

In May 2010, David Scott Hall shared a home with the 13-year-old victim, her mother, and her sister. Hall hid a camera in the victim’s bedroom, focusing on the area of the room where the girl ordinarily changed clothes. But the victim discovered the camera while fully clothed. She showed the recording to her mother, who handed it over to the Metropolitan Nashville Police Department. 

Hall was indicted for attempted especially aggravated sexual exploitation of a minor. He was found guilty at a bench trial in February 2014. He appealed to the Court of Criminal Appeals, arguing, among other things, that the evidence was insufficient to support his conviction. The appellate court affirmed his conviction, but he was granted further review by the Supreme Court of Tennessee.

The Court first defined the standard of review for a challenge to the sufficiency of the evidence as, “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (quoting Jackson v. Virginia, 443 U.S. 307 (1979)). The elements of the statute Hall was accused of violating made it “unlawful for a person to knowingly ... use ... a minor to participate in ... the production of ... material that includes engaging in ... [s]exual activity.” Tenn. Code §39-17-1005(a)(1). The Court went on to say, “In this context, ‘[s]exual activity’ means ‘[l]ascivious exhibition of the female breast or the genitals, buttocks, anus, or pubic or rectal area of any person.’” (quoting Tenn. Code Section 39-17-1002(8)(G)). And the pertinent part of the attempt statute provides: “A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense[,] ... [a]cts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part.” Tenn. Code § 39-12-101(a)(2).

The Court next compared Hall’s case with State v. Whited, 506 S.W.3d 416 (Tenn. 2016), wherein the defendant had secretly videotaped his 12-year-old daughter and her 14-year-old friend in the nude. Whited’s convictions for especially aggravated sexual exploitation of a minor were reversed because mere nudity, without more, is not a “lascivious exhibition” under the statute, the Court ruled. “Lascivious,” according to the Whited Court, means “tending to incite lust; lewd; indecent; obscene.”  

Whited addressed the issue of a completed especially aggravated sexual exploitation of a minor. It left open the question whether mere nudity is sufficient for a conviction for attempted exploitation, which is the issue in the present case. The Court emphasized that the video must be “objectively lascivious” and not dependent on the subjective effect upon a particular defendant. The Court then determined that Hall positioned his camera where he intended to capture images of the victim in the nude while changing clothes, but where it was unlikely he would record her in lascivious or sexual activity. Thus, there was no evidence of “attempt” to obtain videotape that would meet the statutory elements of especially aggravated sexual exploitation of a minor. Accordingly, the Court concluded the evidence is insufficient, reversed Hall’s conviction, and ordered the charges be dismissed. See: State v. Hall, 2019 Tenn. LEXIS 5 (2019).  

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