State v. Sholl

• Decision Date: 25 September 2009
• Docket Number: No. 1D08-4826.,1D08-4826.
• Citation: 18 So.3d 1158
• Parties: STATE of Florida, Appellant, v. John C. SHOLL, Appellee.
• Court: Florida District Court of Appeals

18 So.3d 1158

STATE of Florida, Appellant, v. John C. SHOLL, Appellee.

No. 1D08-4826.

District Court of Appeal of Florida, First District.

September 25, 2009.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellant.

Nancy Jones Gaglio, of Jones Gaglio, P.A., Panama City, for Appellee.

HAWKES, C.J.

John Sholl was charged in a two-count information with lewd or lascivious exhibition (Count I) and transmitting an image harmful to minors by electronic device (Count II). Both charges arose from the same underlying act. Sholl moved to dismiss the charges pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) (2008), claiming the exhibition charge lacked factual support and the transmission charge violated the constitutional prohibition against double jeopardy and infringed upon his right to free speech. The State filed a traverse and the matter proceeded to a hearing during which the parties reiterated the arguments raised in their pleadings. At the conclusion of the hearing, the trial court granted Sholl's motion but did not explain its reasoning. It then issued an order dismissing the charges without further explanation. The dismissal was erroneous as each argument raised in Sholl's motion was legally baseless. We therefore reverse the trial court's determination and remand for reinstatement of both charges.

Standard of Review

According to Florida Rule of Criminal Procedure 3.190(c)(4), an information can be dismissed when "[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant." To avoid dismissal under Rule 3.190(c)(4), the State must present sufficient facts that, when viewed in a light most favorable to the State, show a reasonable jury could find in its favor. See State v. Terma, 997 So.2d 1174, 1177-78 (Fla. 3d DCA 2008) (stating the State is entitled to the most favorable construction of the facts possible); State v. Ortiz, 766 So.2d 1137, 1141-42 (Fla. 3d DCA 2000) (stating that when considering a Rule 3.190(c)(4) motion, "the [S]tate is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant"). Whether the trial court properly granted a motion to dismiss pursuant to Rule 3.190(c)(4) is reviewed de novo. See Galston v. State, 943 So.2d 968, 970-71 (Fla. 5th DCA 2006); State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002). Each of the charges against Sholl will be examined using this standard. Lewd or Lascivious Exhibition (Count I)

Count I of the information charged Sholl with lewd and lascivious exhibition pursuant to section 800.04(7)(a), Florida Statutes (2008). Sholl moved to dismiss the charge as he argued the undisputed facts did not establish that he engaged in "lewd or lascivious" conduct. The trial court improperly granted the motion because whether Sholl's conduct was "lewd or lascivious" should have been submitted to the jury.

According to section 800.04(7)(a), a defendant can commit "lewd and lascivious exhibition" in a variety of ways, including intentionally exposing "the genitals in a lewd or lascivious manner." The terms "lewd" and "lascivious" are not defined in the statutory scheme. See Chesebrough v. State, 255 So.2d 675, 677 (Fla.1971); Method v. State, 920 So.2d 141, 143 (Fla. 4th DCA 2006); State v. Mitchell, 624 So.2d 859, 860 (Fla. 5th DCA 1993). Because the legislature has not defined "lewd" or "lascivious" behavior, "it is up to a jury to decide, based upon the totality of the circumstances, whether or not [the defendant's] behavior violated the statute." Mitchell, 624 So.2d at 860; see also Rosen v. State, 940 So.2d 1155, 1160 (Fla. 5th DCA 2006) (stating the question of whether conduct is "lewd or lascivious" is one of fact and must be decided by the jury "based upon the totality of the circumstances"); W.R.H. v. State, 763 So.2d 1111, 1112 (Fla. 4th DCA 1999) (stating whether an act is "lewd or lascivious" is "a question of fact and based on the circumstances of each individual case"). A narrow exception allowing the trial court to make the determination exists only "when it can `reasonably' be said that the acts are not lewd and lascivious as a matter of law." Mitchell, 624 So.2d at 860. However, the exception applies only when no inference of "lewd or lascivious" conduct can be drawn from the facts alleged. See M.L.C. v. State, 875 So.2d 810, 812 (Fla. 2d DCA 2004).

Here, the undisputed facts — as set forth in the motion to dismiss, the traverse, and the hearing — indicated Sholl engaged in a real-time chat over Yahoo's Instant Messenger feature using a web camera. The chat was between Sholl and a police investigator whom he believed to be a thirteen-year old girl. During the transmission, Sholl exposed his genitals.

Viewing these undisputed facts in a light most favorable to the State, it cannot be said that the State failed to establish a prima facie case of lewd or lascivious exhibition. A jury could reasonably infer from Sholl's decision to expose himself that he was intentionally acting in a lewd or lascivious manner. See Egal v. State, 469 So.2d 196, 199 (Fla. 2d DCA 1985) (stating "current standards have not changed to the point that total nudity is considered to be normally acceptable behavior. To intentionally expose one's private parts to a young child is hardly accepted conduct."). Consequently, the trial court erred in dismissing the charge on the basis that Sholl's actions were not lewd and lascivious as a matter of law. Given the circumstances of the case, this was a question of fact for the jury to decide, not the trial court.

Transmitting Material Harmful to a Minor Via Electronic Device (Count II)

In Count II, Sholl was charged with transmitting material harmful to a minor via electronic device, contrary to section 847.0138 (2008), Florida Statutes (2008). Sholl asserted two arguments concerning the transmission charge: (1) charging him with transmitting material harmful to a minor violated the prohibition against double jeopardy as it contained the same elements as the charge of lewd and lascivious exhibition; and (2) the transmission in question was speech protected by the First Amendment. Both arguments are unpersuasive.

First, the trial court should not have considered Sholl's double jeopardy claim until sentencing. When an information contains two or more charges which amount to the same offense, "[d]ouble jeopardy concerns require only that the trial judge filter out multiple punishments at the end of the trial, not at the beginning." Claps v. State, 971 So.2d 131, 134 (Fla. 2d DCA 2007). To this end, double jeopardy protections may not be extended to an earlier stage of the proceeding, such as the filing of the information or jury selection. Id. Otherwise, the trial court would be "usurp[ing] the State's discretion to make strategic decisions about charging alleged criminal activity." Id. at 134-35; see also Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (stating "the State is not prohibited by the Double Jeopardy Clause from charging respondent with greater and lesser included offenses and prosecuting those offenses in a single trial"). Consequently, Sholl's double jeopardy argument was premature and an improper basis for dismissal.¹

Sholl's double jeopardy argument was also baseless. The Fifth Amendment guarantee against double jeopardy protects a defendant from, among other things, multiple punishments for the same offense. See Capron v. State, 948 So.2d 954, 957 (Fla. 5th DCA 2007). Offenses are considered separate if they pass the two-pronged test of section 775.021(4)(a), Florida Statutes (2008). First, each offense must "require[] proof of an element that the other does not." § 775.021(4)(a). Second, even if the charges contain different elements, to be considered separate offenses none of the exceptions contained in section 775.021(4)(b) can apply.

Here, the exhibition charge and the transmission charge contain distinct elements. To commit the crime of lewd or lascivious exhibition, a defendant has to perform one of the following in the presence of a victim less than 16 years of age:

(1) Intentionally masturbate;

(2) Intentionally expose the genitals in a lewd or lascivious manner; or

(3) Intentionally commit any other sexual act that does not involve actual physical or sexual conduct with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity.

See § 800.04(7)(a), Fla. Stat. (2008).

In contrast, an individual transmits "material harmful to minors" by electronic device by sending any of the following material to a "minor" (i.e. "any person under the age of 18 years" (see § 847.001(8), Fla. Stat. (2008)):

[A]ny reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:

(a) Predominantly appeals to a prurient, shameful, or morbid interest;

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and (c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.

See §§ 847.001(6), 847.0138 Fla. Stat. (2008).

From the face of the statutes, it is obvious these offenses contain unique elements. For instance, the exhibition charge requires the victim to be under 16, while the transmission charge requires the victim to be under 18. Furthermore, the definition of material "harmful to a minor" is different, and considerably broader, than the enumerated activities needed for lewd or lascivious exhibition.

Since the offenses contain different statutory elements, it must next be determined if any of the exceptions listed in section 775.021(4)(b) apply. Section 775.021(...