Dost factors in Tennessee

2016See United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008) (describing Dost as “[t]he leading case” on lascivious exhibition); United States v. Williams, 444 F.3d 1286 , 1299 n.62 (11th Cir. 2006) (“Virtually all lower courts that have addressed the meaning of ‘lascivious exhibition’ have embraced the widely followed ‘Dost’ test.”), rev’d on other grounds, 553 U.S. 285 , 128 S.Ct 1830 , 170 L.Ed.2d 650 (2008); Villard, 885 F.2d at 125 .

2016See, e.g., Rivera, 546 F.3d at 250-53 (describing various disputes over application of the Dost factors); United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (noting that Dost has “fostered myriad disputes” and giving examples); see also Wallenfang, 568 F.3d at 658-59 (methodically applying the six Dost factors, though not statutorily mandated); People v. Sven, 365 Ill.App.3d 226 , 302 Ill.Dec. 228 , 848 N.E.2d 228, 233-40 (2006) (same).

2016Almost twenty years after the Dost test was enounced, a California district court disavowed use of the Dost factors because "[a] close look at the Dost factors persuades the court that the test is not particularly helpful.” United States v. Hill, 322 F.Supp.2d 1081, 1086 (C.D.

2016Almost twenty years after the Dost test was enounced, a California district court disavowed use of the Dost factors because "[a] close look at the Dost factors persuades the court that the test is not particularly helpful.” United States v. Hill, 322 F.Supp.2d 1081, 1086 (C.D.

2015App. June 6, 2011) (citing United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009) (stating that the Dost factors “are neither exclusive nor conclusive, but operate as merely ‘a starting point’ ”); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008) (“Although the Dost factors are not definitional, they are useful for assessing the sufficiency of evidence, and pose questions that are (at least) germane to the issue of lasciviousness.”); United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 2003) (noting that the list of Dost factors are “not exhaustive” but that they “provide a f

2015App. June 6, 2011) (citing United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009) (stating that the Dost factors “are neither exclusive nor conclusive, but operate as merely ‘a starting point’ ”); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008) (“Although the Dost factors are not definitional, they are useful for assessing the sufficiency of evidence, and pose questions that are (at least) germane to the issue of lasciviousness.”); United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 2003) (noting that the list of Dost factors are “not exhaustive” but that they “provide a f

2016In jurisdictions in which the state child sexual exploitation statute is similar to the federal statute, some state courts, including some Tennessee appellate courts, 21 have applied the Dost factors as well. 22 See, e.g., Cummings v. State, 353 Ark. 618 , 110 S.W.3d 272 , 278 n.1 (2003); State v. Roberts, 796 So.2d 779, 786-87 (La.

2016In jurisdictions in which the state child sexual exploitation statute is similar to the federal statute, some state courts, including some Tennessee appellate courts, 21 have applied the Dost factors as well. 22 See, e.g., Cummings v. State, 353 Ark. 618 , 110 S.W.3d 272 , 278 n.1 (2003); State v. Roberts, 796 So.2d 779, 786-87 (La.

2016Dost factors may not be relevant in a given case, while *434 some factors not enumerated are relevant. 23 See Scott Johnson, 639 F.3d at 439-40 ; Steen, 634 F.3d at 827 ; United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); Overton, 573 F.3d at 686 ; see also United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989); Villard, 885 F.2d at 125 .

2015App. June 6, 2011) (citing United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009) (stating that the Dost factors “are neither exclusive nor conclusive, but operate as merely ‘a starting point’ ”); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008) (“Although the Dost factors are not definitional, they are useful for assessing the sufficiency of evidence, and pose questions that are (at least) germane to the issue of lasciviousness.”); United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 2003) (noting that the list of Dost factors are “not exhaustive” but that they “provide a f

2016See, e.g., Rivera, 546 F.3d at 250-53 (describing various disputes over application of the Dost factors); United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (noting that Dost has “fostered myriad disputes” and giving examples); see also Wallenfang, 568 F.3d at 658-59 (methodically applying the six Dost factors, though not statutorily mandated); People v. Sven, 365 Ill.App.3d 226 , 302 Ill.Dec. 228 , 848 N.E.2d 228, 233-40 (2006) (same).

2016See, e.g., Rivera, 546 F.3d at 250-53 (describing various disputes over application of the Dost factors); United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (noting that Dost has “fostered myriad disputes” and giving examples); see also Wallenfang, 568 F.3d at 658-59 (methodically applying the six Dost factors, though not statutorily mandated); People v. Sven, 365 Ill.App.3d 226 , 302 Ill.Dec. 228 , 848 N.E.2d 228, 233-40 (2006) (same).

2015App. June 6, 2011) (citing United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009) (stating that the Dost factors “are neither exclusive nor conclusive, but operate as merely ‘a starting point’ ”); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008) (“Although the Dost factors are not definitional, they are useful for assessing the sufficiency of evidence, and pose questions that are (at least) germane to the issue of lasciviousness.”); United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 2003) (noting that the list of Dost factors are “not exhaustive” but that they “provide a f

2015App. June 6, 2011) (citing United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009) (stating that the Dost factors “are neither exclusive nor conclusive, but operate as merely ‘a starting point’ ”); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008) (“Although the Dost factors are not definitional, they are useful for assessing the sufficiency of evidence, and pose questions that are (at least) germane to the issue of lasciviousness.”); United States v. Campbell, 81 F. App’x 532, 536 (6th Cir. 2003) (noting that the list of Dost factors are “not exhaustive” but that they “provide a f

2016The First Circuit Court of Appeals initially gave a qualified endorsement of the Dost factors as “guideposts,” see Amirault, 173 F.3d at 33 , but later added cautions that they are not comprehensive or applicable in every case.

2016The First Circuit Court of Appeals initially gave a qualified endorsement of the Dost factors as “guideposts,” see Amirault, 173 F.3d at 33 , but later added cautions that they are not comprehensive or applicable in every case.

2020Dost, 636 F. Supp. at 832 .

2016The defendant requested two additional jury instructions to further explain the meaning of “lascivious exhibition.” He first requested that the jury be instructed on the so-cálled Dost factors set forth in United States v. Dost, 636 F.Supp. 828, 832 (S.D.

2016See, e.g., Sullivan, 972 N.E.2d at 495 (Milkey, J., dissenting) (“[W]hile Dost was a well-meaning effort to lend some objectivity to the elusive question where the boundary between mere nudity and lewdness lies, its many shortcomings have been well documented.”); Steen, 634 F.3d at 829 (Higginbotham, J., concurring) (“The Dost factors are not definitionally equivalent to the statutory standard of ‘lascivious exhibition of the genitals,’ but many courts have treated them as such, even requiring that a certain number of factors be present for pornography convictions.

2016See, e.g., Sullivan, 972 N.E.2d at 495 (Milkey, J., dissenting) (“[W]hile Dost was a well-meaning effort to lend some objectivity to the elusive question where the boundary between mere nudity and lewdness lies, its many shortcomings have been well documented.”); Steen, 634 F.3d at 829 (Higginbotham, J., concurring) (“The Dost factors are not definitionally equivalent to the statutory standard of ‘lascivious exhibition of the genitals,’ but many courts have treated them as such, even requiring that a certain number of factors be present for pornography convictions.

2016Dost factors may not be relevant in a given case, while *434 some factors not enumerated are relevant. 23 See Scott Johnson, 639 F.3d at 439-40 ; Steen, 634 F.3d at 827 ; United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); Overton, 573 F.3d at 686 ; see also United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989); Villard, 885 F.2d at 125 .

2016See, e.g., Sullivan, 972 N.E.2d at 495 (Milkey, J., dissenting) (“[W]hile Dost was a well-meaning effort to lend some objectivity to the elusive question where the boundary between mere nudity and lewdness lies, its many shortcomings have been well documented.”); Steen, 634 F.3d at 829 (Higginbotham, J., concurring) (“The Dost factors are not definitionally equivalent to the statutory standard of ‘lascivious exhibition of the genitals,’ but many courts have treated them as such, even requiring that a certain number of factors be present for pornography convictions.

2016Of course, the general standard for appellate review of the sufficiency of the evidence “is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could *426 have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Bell, 480 S.W.3d 486, 516 (Tenn. 2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)).

2016Of course, the general standard for appellate review of the sufficiency of the evidence “is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could *426 have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Bell, 480 S.W.3d 486, 516 (Tenn. 2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)).

2016Ct. App. 2001); Commonwealth v. Sullivan, 82 Mass.App.Ct. 293 , 972 N.E.2d 476, 484 (2012); Hood v. State, 17 So.3d 548, 555 (Miss. 2009); State v. Smith, 292 Neb. 434 , 873 N.W.2d 169 , 193 (2016); State v. Lopez, 162 N.H. 153 , 27 A.3d 713, 716 (2011); State v. Dubois, 746 N.W.2d 197, 208 (S.D. 2008); Perkins v. State, 394 S.W.3d 203, 208 (Tex. Ct. App.-Hous. [1 Dist.] 2012); State v. Bagnes, 322 P.3d 719, 727-28 (Utah 2014).

2016Ct. App. 2001); Commonwealth v. Sullivan, 82 Mass.App.Ct. 293 , 972 N.E.2d 476, 484 (2012); Hood v. State, 17 So.3d 548, 555 (Miss. 2009); State v. Smith, 292 Neb. 434 , 873 N.W.2d 169 , 193 (2016); State v. Lopez, 162 N.H. 153 , 27 A.3d 713, 716 (2011); State v. Dubois, 746 N.W.2d 197, 208 (S.D. 2008); Perkins v. State, 394 S.W.3d 203, 208 (Tex. Ct. App.-Hous. [1 Dist.] 2012); State v. Bagnes, 322 P.3d 719, 727-28 (Utah 2014).

2016Ct. App. 2001); Commonwealth v. Sullivan, 82 Mass.App.Ct. 293 , 972 N.E.2d 476, 484 (2012); Hood v. State, 17 So.3d 548, 555 (Miss. 2009); State v. Smith, 292 Neb. 434 , 873 N.W.2d 169 , 193 (2016); State v. Lopez, 162 N.H. 153 , 27 A.3d 713, 716 (2011); State v. Dubois, 746 N.W.2d 197, 208 (S.D. 2008); Perkins v. State, 394 S.W.3d 203, 208 (Tex. Ct. App.-Hous. [1 Dist.] 2012); State v. Bagnes, 322 P.3d 719, 727-28 (Utah 2014).

2016Ct. App. 2001); Commonwealth v. Sullivan, 82 Mass.App.Ct. 293 , 972 N.E.2d 476, 484 (2012); Hood v. State, 17 So.3d 548, 555 (Miss. 2009); State v. Smith, 292 Neb. 434 , 873 N.W.2d 169 , 193 (2016); State v. Lopez, 162 N.H. 153 , 27 A.3d 713, 716 (2011); State v. Dubois, 746 N.W.2d 197, 208 (S.D. 2008); Perkins v. State, 394 S.W.3d 203, 208 (Tex. Ct. App.-Hous. [1 Dist.] 2012); State v. Bagnes, 322 P.3d 719, 727-28 (Utah 2014).

2016See United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008) (describing Dost as “[t]he leading case” on lascivious exhibition); United States v. Williams, 444 F.3d 1286 , 1299 n.62 (11th Cir. 2006) (“Virtually all lower courts that have addressed the meaning of ‘lascivious exhibition’ have embraced the widely followed ‘Dost’ test.”), rev’d on other grounds, 553 U.S. 285 , 128 S.Ct 1830 , 170 L.Ed.2d 650 (2008); Villard, 885 F.2d at 125 .

2016Dost factors may not be relevant in a given case, while *434 some factors not enumerated are relevant. 23 See Scott Johnson, 639 F.3d at 439-40 ; Steen, 634 F.3d at 827 ; United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); Overton, 573 F.3d at 686 ; see also United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989); Villard, 885 F.2d at 125 .

2016Dost factors may not be relevant in a given case, while *434 some factors not enumerated are relevant. 23 See Scott Johnson, 639 F.3d at 439-40 ; Steen, 634 F.3d at 827 ; United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); Overton, 573 F.3d at 686 ; see also United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989); Villard, 885 F.2d at 125 .

2016Dost factors may not be relevant in a given case, while *434 some factors not enumerated are relevant. 23 See Scott Johnson, 639 F.3d at 439-40 ; Steen, 634 F.3d at 827 ; United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); Overton, 573 F.3d at 686 ; see also United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989); Villard, 885 F.2d at 125 .

2016On appeal, the Ninth Circuit reaffirmed that it found the Dost factors still relevant as "a starting point” and added that they are "neither exclusive nor conclusive.” United States v. Hill, 459 F.3d 966, 972 (9th Cir. 2006) ("Dost itself acknowledged that it did not see to offer ‘a comprehensive definition of ... lasciviousness ....”). 26 .

2016On appeal, the Ninth Circuit reaffirmed that it found the Dost factors still relevant as "a starting point” and added that they are "neither exclusive nor conclusive.” United States v. Hill, 459 F.3d 966, 972 (9th Cir. 2006) ("Dost itself acknowledged that it did not see to offer ‘a comprehensive definition of ... lasciviousness ....”). 26 .

2016But even the courts that adopted the Dost factors reluctantly nevertheless employed them out of the need for “neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution.” Bolles v. State, No. 13-14-00649-CR, — S.W.3d -, -, 2016 WL 3548797, at *4 (Tex. Ct. App.-Corpus Christi June 23, 2016) (citations omitted) (quoting Rivera, 546 F.3d at 252 ).

2016But even the courts that adopted the Dost factors reluctantly nevertheless employed them out of the need for “neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution.” Bolles v. State, No. 13-14-00649-CR, — S.W.3d -, -, 2016 WL 3548797, at *4 (Tex. Ct. App.-Corpus Christi June 23, 2016) (citations omitted) (quoting Rivera, 546 F.3d at 252 ).

2016See, e.g., Rivera, 546 F.3d at 250-53 (describing various disputes over application of the Dost factors); United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (noting that Dost has “fostered myriad disputes” and giving examples); see also Wallenfang, 568 F.3d at 658-59 (methodically applying the six Dost factors, though not statutorily mandated); People v. Sven, 365 Ill.App.3d 226 , 302 Ill.Dec. 228 , 848 N.E.2d 228, 233-40 (2006) (same).

2016See, e.g., Rivera, 546 F.3d at 250-53 (describing various disputes over application of the Dost factors); United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (noting that Dost has “fostered myriad disputes” and giving examples); see also Wallenfang, 568 F.3d at 658-59 (methodically applying the six Dost factors, though not statutorily mandated); People v. Sven, 365 Ill.App.3d 226 , 302 Ill.Dec. 228 , 848 N.E.2d 228, 233-40 (2006) (same).

2016It recently commented, that “lascivious is a ‘commonsensical’ term and that there is no exclusive list of factors— such as the so-called Dost factors—that must be met for an image (or a film) to be ‘lascivious.’” United States v. Silva, 794 F.3d,173, 181 (1st Cir. 2015) (citing Frabi-zio, 459 F.3d at 85 ); see also United States v. Batcfm, 724 F.3d 1, 9 (1st Cir. 2013) (“We have been clear that the Dost factors are problematic.").

2016It recently commented, that “lascivious is a ‘commonsensical’ term and that there is no exclusive list of factors— such as the so-called Dost factors—that must be met for an image (or a film) to be ‘lascivious.’” United States v. Silva, 794 F.3d,173, 181 (1st Cir. 2015) (citing Frabi-zio, 459 F.3d at 85 ); see also United States v. Batcfm, 724 F.3d 1, 9 (1st Cir. 2013) (“We have been clear that the Dost factors are problematic.").

2016The Eleventh Circuit has not rejected the Dost factors, but it recently said *436 pointedly that the determination of lasciviousness “does not require a multi-factor analysis.” United States v. Grzybowicz, 747 F.3d 1296 , 1306 & n.8 (11th Cir. 2014) (finding that the subject photos were “blatantly lascivious” and adding that “[djecid-ing whether the Dost factors should be part of the law of our circuit is unnecessary in this case”); see also State v. Anderson, No. 10-0787, 2011 WL 1376731 , at *3 (Iowa Ct. App. Apr. 13, 2011) (declining to apply the Dost factors to evaluate the alleged child p

2016The Eleventh Circuit has not rejected the Dost factors, but it recently said *436 pointedly that the determination of lasciviousness “does not require a multi-factor analysis.” United States v. Grzybowicz, 747 F.3d 1296 , 1306 & n.8 (11th Cir. 2014) (finding that the subject photos were “blatantly lascivious” and adding that “[djecid-ing whether the Dost factors should be part of the law of our circuit is unnecessary in this case”); see also State v. Anderson, No. 10-0787, 2011 WL 1376731 , at *3 (Iowa Ct. App. Apr. 13, 2011) (declining to apply the Dost factors to evaluate the alleged child p

2016See United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008) (describing Dost as “[t]he leading case” on lascivious exhibition); United States v. Williams, 444 F.3d 1286 , 1299 n.62 (11th Cir. 2006) (“Virtually all lower courts that have addressed the meaning of ‘lascivious exhibition’ have embraced the widely followed ‘Dost’ test.”), rev’d on other grounds, 553 U.S. 285 , 128 S.Ct 1830 , 170 L.Ed.2d 650 (2008); Villard, 885 F.2d at 125 .

2016See United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008) (describing Dost as “[t]he leading case” on lascivious exhibition); United States v. Williams, 444 F.3d 1286 , 1299 n.62 (11th Cir. 2006) (“Virtually all lower courts that have addressed the meaning of ‘lascivious exhibition’ have embraced the widely followed ‘Dost’ test.”), rev’d on other grounds, 553 U.S. 285 , 128 S.Ct 1830 , 170 L.Ed.2d 650 (2008); Villard, 885 F.2d at 125 .