Tennessee Supreme Court Holds Evidence Not Enough to Convict For Attempted Especially Aggravated Sexual Exploitation of a Minor

January 7, 2019

In a divided opinion, the Tennessee Supreme Court has reversed and dismissed the conviction of a Davidson County man for attempted especially aggravated sexual exploitation of a minor—“attempted child sexual exploitation”—in a case in which he secretly videotaped a 13-year-old female relative while she was in her bedroom.  Based on the language of Tennessee’s child sexual exploitation statutes, which were adopted to address the production of child pornography, the majority of the Court found that there was not enough evidence at trial to affirm the conviction.

In May 2010, defendant David Scott Hall lived with a relative and her two minor daughters, ages 11 and 13, in Nashville.  While the 13-year-old took a shower before school, Mr. Hall hid a camera in her bedroom aimed at the area near her bed where she would normally dress for school.  When the daughter came into her bedroom dressed in a tee-shirt and shorts, she immediately noticed the red “recording” light and discovered the hidden camera.  Mr. Hall was charged with attempted child sexual exploitation.

After a trial, Mr. Hall was convicted as charged and sentenced to four years’ imprisonment, suspended after one year of confinement. He appealed to the Court of Criminal Appeals, which affirmed the conviction and sentence.  The Tennessee Supreme Court then granted Mr. Hall permission to appeal.

At the outset, the Supreme Court noted that criminalizing “mere nudity” in a photograph or video may be unconstitutional under the United States Constitution.   The Tennessee Supreme Court’s previous decision in State v. Whited unanimously held that, to constitute child sexual exploitation under Tennessee law, any video produced by a defendant has to contain something more than a nude minor engaged in everyday activities ordinarily performed in the nude.  Tennessee’s child sexual exploitation statutes require the video to also contain “sexual activity” by the minor such as “lascivious exhibition” of the minor’s private body areas.

The majority of the Court ruled that the conviction for attempted child sexual exploitation could not stand.  The evidence at trial showed at most that Mr. Hall intended to record video of the minor victim changing clothes, an everyday activity ordinarily performed in the nude.  The evidence did not show Mr. Hall intended to capture video of the victim engaged in “sexual activity” or that he believed his hidden camera would record “lascivious exhibition” of the victim’s private body areas.  For that reason, there was not enough evidence to support a conviction under Tennessee’s child sexual exploitation statutes.

The State argued that the camera was aimed in the direction of the victim’s bed, so it was fair for the trial court to infer that Hall believed he would record video of the victim engaged in “sexual activity.”  Justice Holly Kirby, writing for the majority, said that the State’s argument “invites the Court to engage in sheer speculation about the Defendant’s hopes and fantasies,” and declined to do so, adding that any finding about Hall’s intent or belief “must be grounded in evidence, not in speculation.”

The majority of the Court noted that the evidence might have been enough to support a conviction for the criminal offense of photography without consent, but it was not enough to find Mr. Hall guilty of attempted child sexual exploitation.  Consequently, Mr. Hall’s conviction was reversed.  

Justice Roger A. Page dissented, joined by Chief Justice Jeff Bivins.  The dissent emphasized that the defendant was convicted of attempted especially aggravated sexual exploitation of a minor, as opposed to the actual completed offense at issue in the Whited case relied upon by the majority.  Therefore, the evidence was sufficient to support the conviction for the attempted offense.  The dissent also reiterated that, because Mr. Hall had been convicted, he was required to show on appeal that no rational judge could have found that he intended or believed his hidden camera would record sexual activity. The dissent noted that Mr. Hall purposefully aimed the camera to record video of the victim nude while changing clothes and to capture a closer view of her private areas as she approached her bedroom dresser to get undergarments.  Considering this evidence, along with Mr. Hall’s lack of credibility, the dissent would have affirmed the conviction for attempted child sexual exploitation.

To read the majority opinion in State of Tennessee v. David Scott Hall, authored by Justice Holly Kirby, and the dissent authored by Justice Roger A. Page, go to the opinions section of TNCourts.gov.