JOSEPH FRANCIS SCHNEIDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Schneider appealed his conviction for nine counts of possessing child sexual abuse material, challenging whether undeveloped film in his camera constituted a 'photograph' under Florida Statutes § 827.071(5). The court affirmed, holding that undeveloped film qualifies as a photograph under the statute's plain language.
The court held that undeveloped film constitutes a photograph under the statute. The statutory language is unambiguous and applies to exposed film, as a photograph is defined as the exposure of film at the time the picture is taken, with developed film constituting negatives and hard copies being prints.
[1] Possession of undeveloped film depicting sexual conduct by a child is unlawful under statutes prohibiting the knowing possession of photographs including such conduct.
[2] The term 'photograph' in statutes prohibiting child sexual abuse material includes undeveloped film.
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Join FLexlaw to unlock all legal intelligence“It is unlawful for any person to knowingly possess a 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.”
The statutory provision at issue prohibiting possession of child sexual abuse material
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Join FLexlaw to unlock all legal intelligenceAppellant induced two boys, ages 12 and 13, to pose nude and engage in sexual acts with each other during a photographic session. Police searched Appe…
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STONE, Chief Judge.
We affirm Appellant’s conviction and sentence on multiple counts, including nine counts of possessing material that includes sexual performance by a child. We find no error in the trial court’s construction of section 827.071(5), Florida Statutes (1995), as covering exposed but undeveloped film in Appellant’s camera. That section provides:
It is unlawful' for any person to knowingly possess a 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. The possession of each such photograph ... is a separate offense.
§ 827.071(5)(emphasis added).
The evidence reflects that Appellant induced two boys, ages 12 and 13, to pose for a photographic session in the nude and engage in sexual acts with each other. Police later searched Appellant’s apartment and confiscated a camera with undeveloped film in it. The subsequently developed film in Appellant’s camera depicted nine pictures of the boys in sexual positions.
The statute is not ambiguous. We construe it, applying plain and ordinary meaning to its wording. Plante v. Department of Bus. & Prof'l Regulation, 685 So. 2d 886, 888 (Fla. 4th DCA 1996). The statutory language is both clear and applicable. The die- tionary definition lends farther credence to our construction. Webster’s defines the term photograph as “a picture or likeness obtained by photography” with the root word photography defined as “the art or process of producing images on a sensitized surface (as a film) by the action of radiant energy and esp. light.” Merriam Webster’s Collegiate Dictionary 857 (10th ed.1993)(emphasis added). Hence, by definition, a photograph is the exposure of the film at the time the picture is snapped. A hard copy of the photograph is a print and the developed film would be a negative. Although the American Heritage Dictionary, cited by Appellant, does define a photograph as “an image, especially a positive print, recorded by a camera and reproduced on a photosensitive surface,” even this definition recognizes that the term photograph encompasses more than a positive print.
This court has recently recognized that possessing a computer image of child pornography is punishable under this statute. State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997). Much of the reasoning in that opinion is applicable here. See also U.S. v. Smith, 795 F. 2d 841, 847 (9th Cir.1986) (undeveloped film constitutes a “visual depiction” as that term is used in 18 U.S.C. § 2252(a), the Federal Sexual Exploitation Statute). Compare State v. Valdez, 182 Ariz. 165, 894 P. 2d 708 (1994) (undeveloped film constituted “visual or print medium” in violation of Arizona’s statue prohibiting sexual exploitation of a minor; however, role of film constituted only a single medium for which defendant could be prosecuted just once).
Therefore, the judgment and sentence are affirmed.
GUNTHER and FARMER, JJ., concur.
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State v. Farnham, 752 So. 2d 12 (Fla. 5th DCA 2000)…438 n. 6. In closing, the court ruled that the trial court had erred in dismissing the counts of the information “arising from violations of that subsection.” Id. at 441. Soon thereafter, the fourth district issued an opinion in Schneider v. State, 700 So. 2d 1239 (Fla. 4th DCA 1997). In that case, the defendant was charged in multiple counts with violating section 827.071(5). The evidence reflected that the defendant induced two boys, ages 12 and 13, to pose for a photographic session in the nude and engage…
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Shedrick Reshord Jenrette-Smith v. State, 114 So. 3d 427 (Fla. 2d DCA 2013)…those offenses. The majority’s other assertion on this issue is that Jenrette-Smith possessed the “images” at the moment he took them. It cites no authority for that proposition. But when making this argument the State relied on Schneider v. State, 700 So. 2d 1239 (Fla. 4th DCA 1997), in which the Fourth District held that exposed but undeveloped film inside a camera is a “photograph” for purposes of section 827.071(5)’s prohibition of knowingly possessing a photograph that includes sexual conduct by a child.…
Authorities Cited
- United States v. Smith, 795 F.2d 841 (9th Cir. 1986)
- State v. Ira Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997)
- Plante v. Dep't of Bus. & Prof'l Reg., 685 So. 2d 886 (Fla. 4th DCA 1996)