Opinion
Case No. 3D04-2149.
Opinion filed December 20, 2005.
An Appeal from the Circuit Court for Miami-Dade County, Henry Leyte-Vidal, Judge, Lower Tribunal Case No. F00-21911.
Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
Before COPE, C.J., and FLETCHER and CORTIÑAS, JJ.
Donald Kasischke seeks reversal of the trial court's order rescinding his probation. We reverse.
Kasischke was accused of, and pled guilty to, three counts of lewd and lascivious exhibition on a child under sixteen years of age and three counts of lewd and lascivious assault on a child under sixteen years of age. Specifically Kasischke pled guilty to performing fellatio on an underage boy while masturbating. He was sentenced to 364 days in jail, followed by two years of community control and eight years of probation.
§ 800.04, Fla. Stat. (1997).
On December 8, 2003, a violation of community control affidavit was filed claiming that Kasischke had violated the conditions of his community control by "possessing obscene, pornographic, or sexually stimulating visual or auditory material." Indeed Kasischke did possess a pornographic videotape and still photos which the state placed into evidence, contending that these were sexually stimulating. The precise condition claimed by the state to be violated by Kasischke's possession of these materials was the standard condition imposed by subparagraph 948.03(5)(a)7., Florida Statutes (1999):
Unlike Lason v. State, 12 So. 2d 305 (Fla. 1943), we do not believe that more graphic descriptions are necessary.
"Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern. [e.s.]
We have emphasized the underlined language of the condition as there the dispute is generated. Kasischke argues that his possession or viewing of the pornographic materials placed into evidence does not violate the condition as the pornographic materials do not involve persons under the age of sixteen, thus are not relevant to his prior deviant behavior. The state, which made no attempt to prove the age of the persons depicted in the photographs or on the videotape, argues that the trial court did not abuse its discretion in ruling that Kasischke violated his probation by possessing pornography and by viewing child pornography.
Our review of the evidence reveals that the tape is most definitely pornographic, whereas the still photos are a mix of pornography and non-pornography. As to the pornographic materials, it is not possible to determine the ages of the subjects. We would be guessing if we attempted such a determination. As the state did not prove that the subjects of the pornography were underage children, the state did not prove that the materials were relevant to Kasischke's deviant behavior pattern.
The Second District Court of Appeal addressed the matter inTaylor v. State, 821 So. 2d 404 (Fla. 2nd DCA 2002). The court determined there that the trial court's imposition of a required probation condition prohibiting the defendant from viewing, owning, or possessing obscene, pornographic, or sexually explicit material, was improper as the condition was not specific to the defendant's deviant behavior. The District Court concluded that the condition, in order to be proper, had to relate to Taylor's specific behavior. The First District Court of Appeal interprets the statute the same way. See Ertley v. State, 785 So. 2d 592 (Fla. 1st DCA 2001). We agree with both courts.
Taylor had pled guilty to unlawful sexual activity with a minor.
Additionally, were we to conclude that the condition does not require relevance to the defendant's deviant behavior pattern, we would be stripping Section 948.30(1)(g), Florida Statutes, of some of its language, effectively rewriting the statute. This, of course, we cannot do.
The state also argues that Kasischke admitted viewing child pornography, the admission having been made in a conversation with a probation supervisor. Our reading of the transcript reveals that the conversation, as related by the witness, was a thoroughly confused one. In any event the state did not present any evidence of the ages of the subjects of the pornographic stills and videotape, thus did not carry its burden of proof.
The order revoking Kasischke's probation is reversed and remanded with instructions to the trial court to reinstate Kasischke's community control.
Reversed and remanded.
I begin with the standard of review, which we must follow in this case. In order to reverse, we must find that the trial court abused its discretion in finding a violation of probation.Woodson v. State, 864 So. 2d 512, 514 (Fla. 5th DCA 2004). We "must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner." Id. Based on the record before us, I cannot make such a finding.
During the probation violation hearing, the probation officer testified that the defendant admitted to viewing pornography involving "young teenagers . . . 14-16." During this portion of the testimony, the probation officer was clarifying the difference between his own definition of child pornography (which included teenagers under 18) and that of the defendant (which apparently did not include young teenagers). During the hearing, the probation officer had also previously testified that the defendant admitted to viewing pornography and child pornography. The testimony concerning defendant's admissions to viewing pornography involving "young teenagers . . . 14-16," without more, is sufficient to find that the trial court did not abuse its discretion in finding that the defendant violated the conditions of his probation.
Nevertheless, in addition to testimony regarding the defendant's admission that he viewed pornography involving "young teenagers . . . 14-16," the State presented evidence seized from the defendant's residence, including pornographic photographs and a videotape. I agree with the majority that the photographs and the videotape do not conclusively establish that the subjects of the pornography were underage children. Yet, that alone is not determinative, especially when faced with defendant's admissions.
The photographs undeniably show pornographic and sexually suggestive photographs of young males and females. The videotape depicts a young male with other males engaging in oral and anal sex. This evidence clearly and unequivocally shows that defendant possessed pornography involving young males and females. Such evidence, when coupled with defendant's admission that he viewed pornography involving "young teenagers . . . 14-16," requires affirmance.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.