Parker v. State

• Decision Date: 28 September 2011
• Docket Number: No. 2D09–3230.,2D09–3230.
• Citation: 81 So.3d 451
• Parties: Danny PARKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

81 So.3d 451

Danny PARKER, Appellant,

v.STATE of Florida, Appellee.

No. 2D09–3230.

District Court of Appeal of Florida, Second District.

Sept. 28, 2011.

Recognized as Unconstitutional

18 U.S.C.A. § 2256(8)(B).

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.LaROSE, Judge.

Danny Parker appeals his convictions and sentences for possession of child pornography. See §§ 775.0847, 827.071(5), Fla. Stat. (2007). More specifically, he challenges the trial court's denial of his motion to dismiss the information. We have jurisdiction. See Fla. R. App. P. 9.140(b)(2)(A)(i). Mr. Parker's conduct, as we will describe, is loathsome. But it escapes the grasp of the statute on which the State proceeds. Consequently, we must reverse.

Mr. Parker taught Sunday school. Over the years, he photographed many children. They posed innocently enough, much as in the style one would expect of a school photo, a yearbook, or a family scene. The innocence turned perverse. Mr. Parker cut the children's heads from some of his photographs and pasted them to photographs of bodies of nude or partially nude adult women. Some depicted the bodies of adult women engaged in sexual activity. None of the images are computer generated. In his motion to dismiss, Mr. Parker argued that mere possession of these photographs was not unlawful. The trial court denied the motion.

Pursuant to a negotiated plea, the State nolle prossed counts eleven through ninety of the information. Mr. Parker pleaded no contest to counts one through ten, reserving his right to appeal the denial of the dispositive motion to dismiss. The trial court sentenced Mr. Parker to sixty months in prison to be followed by ten years of sex offender probation. On appeal, we confront ten photographs that the State characterizes as child pornography.¹ We review issues involving statutory interpretation de novo. L.A.P. v. State, 62 So.3d 693, 694 (Fla. 2d DCA 2011) (citing Mendenhall v. State, 48 So.3d 740, 747 (Fla.2010)).

Based on our decision in Stelmack v. State, 58 So.3d 874 (Fla. 2d DCA 2010), and pursuant to the parties' stipulation, we reverse as to seven photographs (counts 1, 2, 3, 5, 6, 7, and 10).² Those photographs depict lewd exhibition of an adult female's genitals with a child's head superimposed on an adult female body. Those photographs require no further discussion. After thoughtful consideration of the parties' briefs, listening to counsels' compelling presentations at oral argument, and conducting our own research, we can discern no basis on which to affirm the convictions and sentences based on three photographs that depict sexual activity (counts 4, 8, and 9). Stelmack compels reversal.

Stelmack involved photographs depicting heads of children attached to the bodies of nude adult women. None depicted sexual activity. To prove the crime of possession of child pornography, a person must “ ‘knowingly possess a photograph, ... representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.’ ” 58 So.3d at 875 (emphasis omitted) (quoting § 827.071(5)). As defined in section 827.071(1)(g), “sexual conduct” includes

“actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadoma[so]chistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.”

Stelmack, 58 So.3d at 876 (emphasis omitted) (quoting § 827.071(1)(g)); accord § 775.0847(1)(f).

We determined in Stelmack that the only applicable conduct depicted was lewd exhibition of the genitals. 58 So.3d at 876. But, we held that a conviction required exhibition by a child. Id. at 877. Because the Stelmack photographs contained only images of adult genitalia, there was no “sexual conduct by a child” and, consequently, no violation of section 827.071(5). Stelmack, 58 So.3d at 876.

To be sure, the three remaining photographs before us are markedly different from those in Stelmack. Each depicts a child's head superimposed on a body of an adult female engaged in sexual intercourse, deviate sexual intercourse, or masturbation. The conduct falls within the scope of section 827.071(1)(g). But, whether the conduct is “actual” or, as the dissent suggests, “simulated,” the conduct is that of an adult. The crudely constructed depictions, fortunately, leave no doubt that no child engaged in the sexual conduct. Accordingly, we cannot conclude that Mr. Parker possessed child pornography. The legislature's words constrain us.

It bears repeating that a person is guilty of possessing child pornography if he “knowingly possess[es] a photograph, ... representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.” § 827.071(5) (emphasis added). No matter how one parses the words, section 827.071 requires that the depicted sexual conduct be that of a child. The three photographs fail that test. The content of the three photographs offers us no meaningful basis on which to distinguish Stelmack. Without the sexual conduct of a child, the three photographs elude the statute's reach.

We are not persuaded by the dissent's effort to distinguish Stelmack: section 827.071(1)(g) extends to “actual” or “simulated” “sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadoma[so]chistic abuse,” which include the conduct involved here, but excludes the word “simulated” for “lewd exhibition of the genitals,” an element of the offense of which Mr. Stelmack was convicted. We noted that distinction in Stelmack, but, in light of the record then before us, saw no need to discuss the constitutionality of a provision outlawing “simulated” sexual conduct. Id. at 876 n. 2, 877. The dissent concludes that “ ‘simulated’ sexual conduct by a child” includes composites made by attaching children's heads to adult female bodies engaged in sexual activity. Respectfully, we must disagree.

“Simulated” is “the explicit depiction of conduct ... which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.” § 827.071(1)(i). The construction of “simulated” sexual conduct is explained in United States v. Williams, 553 U.S. 285, 297, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008), where the Supreme Court construed the word “simulated” as applied to a “visual depiction” of a minor engaging in “sexually explicit conduct” under 18 U.S.C. § 2252A(a)(3)(B)(ii).³ According to the Court, “a reasonable viewer [must] believe that the actors actually engaged in that conduct on camera” and “although the sexual intercourse may be simulated, it must involve actual children.” Williams, 553 U.S. at 297, 128 S.Ct. 1830. Williams' analysis leads us to the same conclusion regarding Mr. Parker's depictions; no child engaged in simulated conduct and no reasonable viewer could believe so.

To the extent that legislative history is a guide, we note that in enacting section 827.071, the legislature apparently was concerned with the exploitation of children. The 1983 legislative staff summary explains that this legislation “is directed at two types of people—those who use children in sexual performances and those who, being the parent or guardian of the child, ‘consent’ to the child's participation in such activities.” Stelmack, 58 So.3d at 876–77 (quoting Fla. H.R. Comm. on Crim. Just., HB 148 (1983) Staff Analysis 2 (Apr. 14, 1983) (on file with comm.)).⁴ The titles given to the statute are also instructive. Chapter 827 is titled “Abuse of Children” and section 827.071 is titled, “Sexual performance by a child; penalties.” We observed in Stelmack that the legislative history “reveals that it was aimed at preventing the exploitation of children in sexual performances.” Stelmack, 58 So.3d at 876.

This legislative history is not inconsistent with our polestar, the statutory language. No child performed a sexual act, actual or simulated. And, despite the dissent's conclusion that the packaging of the photographs appears to indicate an intention to display them, we must emphasize that the State did not charge Mr. Parker with distribution of or intent to distribute obscene photographs. See § 847.011(1)(a), Fla. Stat. (2007).⁵ Neither was he charged with violating section 827.071(4), which prohibits “possess[ion] with the intent to promote any photograph ... which, in whole or in part, includes any sexual conduct by a child.” ⁶ Even if the State had charged Mr. Parker under section 827.071(4), conviction still would have required sexual conduct by a child. Possession of the photographs is the only crime charged. Although not binding on us, we recognize that the New Hampshire Supreme Court in State v. Zidel, 156 N.H. 684, 940 A.2d 255 (2008), reached a similar result under a statute remarkably similar to section 827.071.

The dissent discusses federal cases involving First Amendment challenges to a broader federal child pornography statute, 18 U.S.C. § 2256(8)(C). The constitutionality of federal statutes is of little aid in interpreting the scope of section 827.071(5). Nevertheless, a brief overview of some of the federal authority demonstrates how the federal government has addressed the reach of child pornography statutes. The federal statute defines “child pornography” as “any visual depiction ... of sexually explicit conduct, where ... [the] depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually...