The conviction of a Knoxville-area man who secretly filmed his 12-year-old daughter and her friend while they were nude, has been reversed and dismissed by the Tennessee Supreme Court.
In a unanimous opinion, justices said Monday the conviction for especially aggravated sexual exploitation of a minor could not stand because the videos only showed the girls naked. Current state law requires a conviction on the charge only if such videos show victims engaged in sexual activity. The court concluded that the videos did now show the victim engaged in sexual activity.
Thomas Whited was convicted in 2013 by a Knox County jury on 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.
So, Whited will still be held on the other 15 convictions against him that remain. The Supreme Court sent the case back to atrial court for re-sentencing.
Whited’s wife found hidden-camera cell phone videos on his phone that showed their daughter entering and exiting the shower. Other videos on his phone showed the Whiteds’ daughter and her 14-year-old friend changing out of swimsuits. All of the videos were taken at the Whiteds’ home.
State law says the material must “be evaluated based on what is depicted, without reference to the defendant’s subjective intent.” The court determined that, regardless of 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 Monday’s opinion.
The court said the state can retry Whited on the lesser charge of attempt of the offense of especially aggravated sexual exploitation. Also, justices said the evidence would have supported a conviction for photography without consent.
