State v. Whited

After a jury trial, Defendant was convicted of nine counts of especially aggravated sexual exploitation of a minor, thirteen counts of observation without consent, and other offenses arising from his hidden-camera videotaping of his twelve-year-old daughter and her teenage friend while they were in various states of undress. Defendant appealed his convictions for especially aggravated sexual exploitation and his sentence. The Court of Criminal Appeals affirmed, concluding that the hidden-camera videos constituted child pornography prohibited under the child sexual exploitation statutes. The Supreme Court reversed and dismissed Defendant’s convictions for especially aggravated sexual exploitation of a minor, holding (1) the use of the six specific factors set forth in United States v. Dost as a “test” or analytical framework in assessing whether material is prohibited under the three child sexual exploitation statutes is hereby rejected; (2) the material at issue must be evaluated based on what is depicted, without reference to the defendant’s subjective intent; and (3) under the correct framework, the videos taken by Defendant do not include a minor engaging in a lascivious exhibition, and therefore, the videos are insufficient to support Defendant’s convictions for especially aggravated child sexual exploitation. View "State v. Whited" on Justia Law