RICHARD N. FOBURG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed convictions for battery and contributing to delinquency of a minor, but reversed felony conviction for showing obscene material to a minor due to insufficient evidence of obscenity.
A conviction for showing obscene material to a minor must be reversed when the evidence is insufficient to establish that the material was obscene under the statutory definition.
[1] A conviction for showing obscene material to a minor requires sufficient evidence establishing the material's obscenity under the statutory definition, and conviction mus…
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Join FLexlaw to unlock all legal intelligenceFoburg was charged with battery, three counts of contributing to the delinquency of a minor, and showing obscene material to a child in violation of s…
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DAVIS, Judge.
Richard Foburg appeals his convictions and sentences for one count of battery, three counts of contributing to the delinquency of a minor, and one count of showing obscene material to a minor. We affirm the convictions and sentences on all the misdemeanor charges without comment but reverse the felony conviction regarding the obscene material.
Foburg was charged with showing obscene material to a child in violation of section 847.0133, Florida Statutes (1995). The only evidence the State presented that tended to show that the material was obscene, as that term has been defined by section 847.001, was contained in the testimony of the victim named in the information and that of another teenage girl. After reviewing that testimony, we agree with Foburg that the evidence was insufficient to make a prima facie showing that the material was obscene. Accordingly, we conclude that the trial court erred in failing to grant a judgment of acquittal as to count V. Therefore, the conviction and sentence for showing obscene material to a minor are reversed.
Affirmed in part, reversed in part, and remanded with directions that the trial court discharge Foburg as to count V.
NORTHCUTT, J., Concurs.
WHATLEY, J., Concurs in part, dissents in part, with opinion.
WHATLEY, Judge,
concurring in part, dissenting in part.
I concur as to the affirmance of Fo-burg’s misdemeanor conviction. I respectfully dissent as to the reversal of his felony conviction of showing obscene material to a minor. I believe the State presented a prima facie case which created an issue to be decided by the trier of fact.
Concurs in part, dissents in part.
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Williams v. State, 846 So. 2d 1244 (Fla. 1st DCA 2003)…make a prima facie showing that the evidence was obscene as defined by section 847.001, Florida Statutes. Accordingly, we conclude that the trial court erred in denying Appellant’s motion for judgment of acquittal on that count. See Foburg v. State, 807 So. 2d 774 (Fla. 2d DCA 2002). Therefore, we reverse Appellant’s conviction and sentence for distribution of pornographic material to a child, and leave Appellant’s other convictions and sentences undisturbed. AFFIRMED in part, REVERSED in part, and remanded…