JAY NELSON LOCKWOOD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lockwood was convicted of possessing a videotape depicting a minor in violation of Florida's child sexual abuse material statute. The appellate court reversed, holding that the videotape did not depict sexual conduct as defined by the statute—merely innocent activities of undressing, showering, and hygiene—and thus the trial court should have granted the motion for judgment of acquittal.
The conviction must be reversed and the case remanded for discharge because the videotape does not contain a presentation of sexual conduct as defined by the statute. The tape showed only innocent, normal everyday occurrences—undressing, showering, hygiene acts, and donning clothes—which do not meet any of the detailed sexual acts enumerated in the statute.
[1] A search warrant's direction may be sufficiently broad to cover the seizure of items as possible evidence of crime, even if not particularly described, if the items are d…
[2] Alleged errors in jury instructions are not preserved for appellate review unless an adequate objection is made in the trial court.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child.”
Statement of the applicable statutory prohibition under § 827.071(5), Florida Statutes (1989).
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Join FLexlaw to unlock all legal intelligencePolice executed a search warrant on appellant's business premises and discovered videotapes. Upon viewing, the tapes depicted a sixteen-year-old girl …
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PER CURIAM.
Appellant was convicted of violating section 827.071, Florida Statutes (1989), which prohibits the possession of a motion picture that includes a sexual performance by a child, based upon his possession of a videotape seized by police during the execution of a search warrant of his business. Appellant contends that the trial court erred in denying his motion to suppress, in improperly instructing the jury regarding the statute involved, and in failing to grant his motion for judgment of acquittal.
While searching appellant’s business premises, the police discovered some videotapes, which, upon viewing, they found to depict a sixteen-year-old girl (who was apparently unaware of the filming) undressing, showering, toweling herself dry, and performing other acts of feminine hygiene and donning clothing. Prior to trial, defendant moved to suppress said tapes since they were not particularly described in the search warrant. We hold the direction of the warrant was sufficiently broad to cover the seizure of the tapes as possible evidence of crime. The video surveillance equipment contained on the premises had the ability to record illegal activity in the pool hall and might well have captured drug transactions occurring thereon. Furthermore, upon viewing, they were subject to the “plain view doctrine.”
Appellant next objects to the trial court’s instruction on sexual conduct as required by the statute involved herein and to various other requested instructions. However, none of these alleged errors were preserved by adequate objection.
Finally, appellant contends the court should have granted his motion for a judgment of acquittal because the evidence adduced did not meet the statutory requirements. Section 827.071(5), Florida Statutes (1989) provides:
(5) It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child.
Subsection (l)(g) of said statute further provides:
(g) “Sexual conduct” means 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; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.
The issue presented for our determination is whether the tape contained a presentation that defendant knew included sexual conduct by a child. The record reflects that the tape does not show a presentation of sexual conduct as defined by the statute. The presentation shows, rather, the innocent, normal everyday occurrence of a female child undressing, showering, performing acts of female hygiene and donning her clothes, none of which meets any of the detailed sexual acts contained in the statute. It thus appears that the motion for judgment of acquittal should have been granted.
The conviction and sentence are accordingly reversed and the case is remanded with directions to discharge appellant.
DOWNEY, LETTS and WARNER, JJ., concur.
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State v. Brabson, 7 So. 3d 1119 (Fla. 2d DCA 2008)…tape shows that Brabson positioned the camera at waist-level and placed the bathing suits in relation to the camera in such a way that the victims’ genitalia became the focal point of the recording. The Fletcher opinion relied on Lockwood v. State, 588 So. 2d 57 (Fla. 4th DCA 1991). In Lockwood, the Fourth District Court of Appeal found that a video tape depicting a sixteen-year-old girl, apparently unaware that she was being filmed, “undressing, showering, towling herself dry, and performing other acts of…
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Fletcher v. State, 787 So. 2d 232 (Fla. 2d DCA 2001)…vailing. He contends the videotapes should have been suppressed because the warrant affidavit did not allege facts to establish probable cause to believe that child pornography would be discovered in his home. Fletcher relies upon Lockwood v. State, 588 So. 2d 57 (Fla. 4th DCA 1991), in arguing that the presence of a hidden camera in his daughters’ bedroom and bathroom did not establish probable cause because, at most, the hidden cameras would have only captured children undressing, showering and donning the…
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Andrews v. State, 130 So. 3d 788 (Fla. 1st DCA 2014)…ew that the lewdness requirement may be satisfied by the defendant’s intent”). Which acts or conduct is lewd or lascivious is a factual issue to be decided on a case-by-case basis. See Chesebrough, at 679. Appellant’s reliance on Lockwood v. State, 588 So. 2d 57 (Fla. 4th DCA 1991) is unavailing. That case involved section 827.071(5), Florida Statutes (1989), which prohibited possession of a motion picture depicting sexual conduct by a child, the term “sexual conduct” being specifically defined in section 8…