State v. Brabson
| Decision Date | 24 December 2008 |
| Docket Number | No. 2D07-5619.,2D07-5619. |
| Citation | 7 So.3d 1119 |
| Parties | The STATE of Florida, Appellant, v. Kimberly BRABSON, III, Appellee. |
| Court | Florida District Court of Appeals |
Bill McCollum, Attorney General, and Elba Caridad Martin, Assistant Attorney General, Tampa, for appellant.
Kynes, Markman & Felman and James E. Felman and Katherine Earle Yanes, Tampa, for appellee.
Before GERSTEN, GREEN, and CORTIÑAS, Associate Judges.
We review the trial court's order granting the defendant's motion to dismiss nineteen counts of the information against Kimberly Brabson, III. Those counts charged the defendant, Brabson, with promotion of a sexual performance by a child, in violation of section 827.071(3), Florida Statutes (2007). We reverse because, under the facts of this case, the determination of whether a particular performance constitutes "actual lewd exhibition of the genitals" creates a factual inquiry for a jury and not a legal question for the court.
Defendant coached a girls' swim team at the school where he was employed. Over a period of several months, defendant approached numerous girls on the swim team with variations of the same story. The girls were asked to try on the swimsuits under the pretense of determining sizes for purposes of placing orders for the team swimsuits. Brabson convinced the girls to try on the swimsuits in his office. Unbeknownst to the girls, prior to their entering, Brabson had set up a video camera in his office and had positioned the swimsuits at specific locations that would place the girls within the camera's view as they changed clothing.
The video tape created by the defendant is essentially broken up into three distinct parts. In the first portion of the video, the bathing suits are placed at a certain distance away from the girls such that the camera's view ranges from below the shoulders of each of the victims to above their knees. The faces of the girls are visible depending on the individual victim's height and whether she bends down. Brabson is clearly seen setting up the camera and positioning the bathing suits in his office at various points throughout the video while the girls are out of his office.
The footage of the second segment of the video shows that Brabson modified the location of the camera within the office and also altered the proximity of the bathing suits to the camera. During the second segment of the video, the camera was placed much closer to the victims as they undressed, causing them to be videotaped at waist-level. This segment clearly focused on the genital region of the victims when they faced the camera. The third segment of the video essentially contains the same footage as the first segment, but retains the actual time lag in between girls entering and exiting Brabson's office.1
In response to the charges, Brabson filed a motion to dismiss the nineteen counts of promoting a sexual performance by a child. The court granted the motion and dismissed all nineteen counts. We review this matter de novo. See State v Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002).
In criminal cases, motions to dismiss should be granted as sparingly as motions for summary judgment in civil cases. State v. Ortiz, 766 So.2d 1137, 1141-42 (Fla. 3d DCA 2000). "Dismissals in criminal cases are to be cautiously granted." State v. Feagle, 600 So.2d 1236, 1240 (Fla. 1st DCA 1992) (citing State v. Hargrove, 552 So.2d 281, 283 (Fla. 4th DCA 1989)). In order to defeat a motion to dismiss, "[t]he State need only specifically dispute a material fact alleged by the defendant or add additional material facts that meet the minimal requirement of a prima facie case." State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000). "In meeting its burden of establishing a prima facie case, the State can use circumstantial evidence, and all the inferences made are resolved in its favor." Id. (citing Boler v. State, 678 So.2d 319, 323 (Fla.1996)). In opposing a motion to dismiss, the State does not need to demonstrate facts sufficient for sustaining a conviction, but instead must only show the barest prima facie case. Hargrove, 552 So.2d at 282. Moreover, it is not within the province of the trial court to make factual determinations on a motion to dismiss or to consider the weight of conflicting evidence or the credibility of witnesses. Ortiz, 766 So.2d at 1142.
Section 827.071(3), Florida Statutes (2007) provides, in pertinent part, as follows:
A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
"Sexual performance" is defined as:
Any performance or part thereof which includes sexual conduct by a child of less than 18 years of age.
Section 827.071(1)(h), Florida Statutes (2007).
"Sexual conduct" is defined within the statute as:
actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic 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. A mother's breastfeeding of her baby does not under any circumstance constitute "sexual conduct."
Section 827.071(1)(g), Florida Statutes (2007) (emphasis added).
The Florida Supreme Court interpreted an earlier version of section 827.071 in Schmitt v. State, 590 So.2d 404 (Fla.1991).2 Schmitt involved a father who was accused of taking nude photographs of his daughter while she was between the ages of eight and twelve years old. Among the issues reviewed in Schmitt was whether an affidavit was sufficient to support a finding of probable cause in the issuance of a search warrant. The probable cause affidavit recited the daughter's assertions of the various nude photographs taken of her by her father as well as the various photography and video equipment and tapes and recordings kept by the father in their home. The affidavit also alleged a violation of section 827.071(5), which prohibited any depiction known to include "sexual conduct" by a child. Id. at 408. As part of its analysis, the Florida Supreme Court noted that the terms "lewd" and "lascivious" are synonymous and "require an intentional act of sexual indulgence or public indecency, when such act causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others." Id. at 410 (citing Rhodes v. State, 283 So.2d 351, 356-57 (Fla.1973)) (footnote omitted). The Court further noted that "it is evident beyond all doubt that any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents and whether or not that conduct originates from a parent." Id. at 410-11. In distinguishing mere nudity from a lewd or lascivious display, the court considered the photographer's intent and actions. Id.
While it is conceivable that one might view the allegations in the present affidavit as depicting simple nudity, we believe the magistrate had a substantial basis for concluding otherwise. The affidavit's factual allegations indicated that Schmitt did not treat the nudity of himself, his daughter, and others in the offhand, natural manner that might be expected if the conduct were purely innocent-for example, if they were nudists. Rather, the affidavit shows he made nudity a central and almost obsessive object of his attention. Thus, the magistrate reasonably could have believed that Schmitt's conduct toward his daughter included the "lewdness" element required by the statute. While nudity alone would not have sufficed, this overall focus of Schmitt's conduct tended to show a lewd intent and thus created a substantial basis for believing that the search would fairly probably yield evidence of a violation of section 827.071. Thus, the magistrate must be upheld. [Illinois v.] Gates 103 S.Ct. [2317] at 2332 [76 L.Ed.2d 527 (1983)].
Schmitt, 590 So.2d at 411 (emphasis added).
Thus, the lewdness requirement under section 827.071(1)(g) may be satisfied by the intent of the person promoting the performance which included sexual conduct by the child. See id. In the case before us, the victims were completely unaware that they were being filmed and any right to privacy they may have expected while changing in the closed, windowless office was violated. Furthermore, the girls were not engaged in what could be considered typical day-to-day activities as they were most certainly manipulated into changing their clothes, which they would not otherwise have done in Brabson's office.
Although there are no Florida cases addressing the specific facts before us, other jurisdictions have addressed similar statutes in nearly identical factual scenarios. For example, one Ohio court applied a similar statute prohibiting the creation, production, direction or transfer of material or a performance that shows a minor in a state of nudity, in a case where the owner of a tanning salon was secretly recording his female patrons during tanning sessions, including at least one underage girl.3 State v. Huffman, 165 Ohio App.3d 518, 2006-Ohio-1106, 847 N.E.2d 58. In Huffman, the tanning salon's owner had placed hidden wireless cameras in different areas of his salon, with a direct feed into his DVD players. After being notified and receiving what appeared to be photographic evidence of one of the hidden cameras, police obtained a warrant and executed it, finding camera equipment and numerous DVDs containing videos of female...
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