State v. Cohen

• Decision Date: 02 July 1997
• Docket Number: No. 96-2085,96-2085
• Citation: 696 So.2d 435
• Parties: 22 Fla. L. Weekly D1622 STATE of Florida, Appellant, v. Ira COHEN, Appellee.
• Court: Florida District Court of Appeals

Page 435

696 So.2d 435

22 Fla. L. Weekly D1622

STATE of Florida, Appellant, v. Ira COHEN, Appellee.

No. 96-2085.

District Court of Appeal of Florida Fourth District.

July 2, 1997.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellant.

Richard D. Kibbey of Kibbey & Barlow, Stuart, for appellee.

PARIENTE, Judge.

The issue in this case is one of first impression in Florida--whether possession of a pornographic computer image of an actual child is punishable under subsection 827.071(5), Florida Statutes (1995). We reverse the trial court's order of dismissal and hold that a pornographic computer image of an actual child constitutes a photograph, representation or other presentation, the possession of which is punishable as a third-degree felony under subsection 827.071(5). ¹

The pornographic images at issue in this case were discovered after defendant brought his computer to a computer store for service. According to the store's employee, defendant offered to copy the pornographic material onto a computer tape after the employee had commented on the pornographic images.

The sheriff's office obtained a search warrant based on the information received from the employee. Investigators examined defendant's multiple computer hard drives, which contained data in files organized in various sub-directories. There were a number of different types of files, including programs, text files and image files.

Defendant's image files contained numerous images of child pornography that "appeared similar to a photograph on a screen." The images could be accessed by invoking the appropriate program to load the files containing the pornographic images. At least one of the images had a crease mark and staple marks, indicating that it had been scanned from a magazine.

A detective testified that the images were of underage children. The detective further testified that when he had arrived at defendant's residence, a computer appeared to be transferring images by modem over telephone wires to a bulletin board system in Texas.

Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), and based on grounds of statutory construction, the trial court dismissed thirty-two counts of the information. The dismissed counts charged defendant with felony possession of child pornography in violation of subsection 827.071(5). ²

When considering a rule 3.190(c)(4) motion, "the court must draw all inferences in favor of the state and against the defendant. The trial court may neither weigh conflicting evidence nor pass on the credibility of witnesses nor determine disputed issues of fact." State v. Hart, 677 So.2d 385, 386 (Fla. 4th DCA 1996) (citation omitted).

For purposes of this appeal, defendant does not contest that his computer contained image files of child pornography. His argument is that the statutory language of subsection 827.071(5) does not prohibit possession of pornographic images on a computer hard drive because a computer image is not possessed unless and until several steps are taken to view the image. To view a computer image, the computer system must be turned on, the monitor turned on, the appropriate program loaded, and the program ordered to search a particular file. Therefore, defendant phrases the sole question on appeal as "whether raw, unconfigured, and undeciphered electrical impulses constitute a photograph, motion picture, show, representation or other presentation."

The rules of statutory construction require that courts give statutory language its plain and ordinary meaning, unless the words are defined by statute. See State v. Hagan, 387 So.2d 943, 945 (Fla.1980); Plante v. Department of Bus. & Prof'l Regulation, 685 So.2d 886, 887 (Fla. 4th DCA 1996); Newberger v. State, 641 So.2d 419, 420 (Fla. 2d DCA 1994). Neither "presentation" nor "representation" are defined in section 827.071. ³ In the absence of a statutory definition, the plain and ordinary meaning of words can be ascertained, if necessary, by reference to a dictionary. See Green v. State, 604 So.2d 471, 473 (Fla.1992); Plante; WFTV, Inc. v. Wilken, 675 So.2d 674 (Fla. 4th DCA 1996).

The dictionary definition of the term "representation" includes "an artistic likeness or image." Webster's New Collegiate Dictionary 993 (10th ed. 1993). The ordinary meaning of the term "presentation" includes "a symbol or image that represents something." Id. at 922. A computer image would thus be encompassed by the plain and ordinary meaning of the phrase "representation, or other presentation," as defined in the dictionary and as commonly understood. ⁴

Alternatively, the pornographic images in this case may qualify under subsection 827.071(5) as copies of photographs. A photograph is defined as "a picture or likeness obtained by photography." Webster's New Collegiate Dictionary at 875. The state contends that it will be able to establish that at least some of the computer images were scanned into the computer from magazine photographs. ⁵

We find no ambiguity in the language of subsection 827.071(5). When the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation to alter the plain meaning. See T.R. v. State, 677 So.2d 270, 271 (Fla.1996); Overstreet v. State, 629 So.2d 125, 126 (Fla.1993); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984).

Nevertheless, the maxim of statutory construction known as ejusdem generis further supports our conclusion that defendant's conduct was prohibited by subsection 827.071(5). Ejusdem generis provides that where an enumeration of specific things is followed by some more general word, the general word will usually be construed to refer to things of the same kind or species as those specifically enumerated. See Green, 604 So.2d at 472. The term "representation, or other presentation" should thus be interpreted to refer to items similar in nature to a photograph or motion picture. See id.

The images appearing on a computer screen can be virtually indistinguishable from photographs appearing in a magazine or other medium. In fact, the testimony here was that defendant's image files "appeared similar to a photograph on a screen." Thus, under the doctrine of ejusdem generis, the term "presentation or other presentation" would include computer images. That pornographic images of children are scanned into a computer rather than pressed onto the pages of a magazine, or that the images are stored on a hard drive rather than in a shoebox, does not change the fact that a defendant possesses pornographic representations of actual children.

In deciding that computer images are not encompassed by subsection 827.071(5), the trial court found that "the legislature intended to treat as felonies categories of obscene materials that were in permanent form and suitable for immediate distribution." However, legislative intent is determined primarily from the language of a statute. See Overstreet, 629 So.2d at 126. When faced with an unambiguous statute, the courts of this state are

without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.

Holly, 450 So.2d at 219 (emphasis in original) (citation omitted). This principle is "not a rule of grammar; it reflects the constitutional obligation of the judiciary to respect the separate powers of the legislature." State v. Brigham, 694 So.2d 793, 797 (Fla.2d DCA 1997).

Nowhere within the statutory language of section 827.071 do the terms "permanent form" or "suitable for immediate distribution" appear, nor does any indication of such an intent appear in the statute's legislative history. ⁶ To read these qualifying terms into the statute, as the trial court did, would be to rewrite the statute and to limit its terms in a manner contrary to its plain language.

Assuming arguendo a legislative intent to limit the scope of section 827.071(5) to forms "suitable for immediate distribution," a computer image stored on a hard drive would certainly qualify as a form suitable for immediate distribution. A computer file containing a photographic image is probably more "suitable for immediate distribution" than, for example, a motion picture, which is explicitly encompassed by the statute, because computer images can be transmitted worldwide virtually instantaneously over the Internet or any other international computer network. ⁷

In addition, a computer image can be quickly and inexpensively copied onto a floppy disk for immediate distribution. The fact that a computer must be turned on to display the photographic image does not affect the suitability of the computer image for immediate distribution.

Defendant analogizes the raw, unconfigured computer data in this case to videotape, which he also contends would be excluded from the prohibition of subsection 827.071(5) because it requires the use of a videotape player to view the image. Defendant contrasts videotape with motion picture film, which is expressly included within the statute, and can be viewed without a projector. ⁸ However, there is no indication that subsection 827.071(5) excludes videotapes because a videotape player must be utilized to view the images.

Indeed, in State v. Beckman, 547 So.2d 210 (Fla. 5th DCA 1989), the defendant was charged, under subsection 827.071(5), with knowing possession of a videotape depicting sexual conduct. The fifth district upheld the constitutionality of subsection 827.071(5) against the argument that mere private possession of obscene material should not be criminalized. It was neither argued nor implied in Beckman that possession of a videotape might be excluded from the prohibitions of subsection 827.071(5). In fact, just the opposite conclusion can be inferred. See also ...