Opinion
No. 92-2477.
March 9, 1994. Rehearing Denied April 22, 1994.
Appeal from the Circuit Court, Escambia County, T. Michael Jones, J.
Nancy A. Daniels, Public Defender, and John R. Dixon, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Joseph Garwood, Asst. Atty. Gen., Tallahassee, for appellee.
The appellant appeals from convictions and sentences for use of a child in a sexual performance and for promoting a sexual performance by a child. Concluding that the trial court should have granted a judgment of acquittal as to two of the charges, because "sexual conduct," a requisite component of a "sexual performance" under section 827.071, Florida Statutes (1989), was not proven, we reverse the appellant's convictions and sentences growing out of those charges.
Under trial court case number 91-4046-M, the appellant was charged with one count of use of J.M., a child, in a sexual performance, as proscribed by section 827.071(2), and one count of promoting a sexual performance by J.M., a child, as proscribed by section 827.071(3). Under trial court case number 91-4047-M, the appellant was charged under the same two statutory provisions for offenses relating to C.N., a second child. The evidence presented at trial was that the appellant directed the children to lower their pants and hold their genitals in their hands so that the appellant could photograph them. J.M. fully exposed his genitals and held his genitals in his hand while the appellant took a photograph. C.N. lowered his trousers but did not remove his underclothing. He was photographed holding his genitals, which were covered by his underclothing.
The appellant argues on appeal that the trial court should have granted his motion for judgment of acquittal as to the charges relating to C.N. because C.N.'s acts did not constitute a "sexual performance." We agree.
A "sexual performance" under section 827.071(2) or (3) must include "sexual conduct" by a child. § 827.071(1)(h). Section 827.071(1)(g) 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 female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.
The parties to this appeal base their arguments on the assumption that C.N.'s conduct was a sexual performance only if his acts amounted to "actual lewd exhibition of [his] genitals."
We agree with the parties' implicit recognition that no other conduct referenced in the section 827.071(1)(g) definition of "sexual conduct" is applicable under the facts of this case. Although the dissent is of the view that "actual physical contact with a person's clothed or unclothed genitals" may properly include physical contact by a child with his own genitals, we cannot agree. Indeed, actual physical contact by a person with his own genitals is more properly characterized as a constant anatomical fact than as "conduct." The language upon which the dissent relies was obviously intended to refer to actual physical contact by a child with the clothed or unclothed genitals of another person.
Although no case law addresses whether the "exhibition" must be unclothed, we conclude that the answer lies within the language of the statute itself. The next clause of section 827.071(1)(g) speaks to "actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast." Thus, the legislature specifically included "clothed" so that the clause would not be interpreted to apply only to contact with unclothed private body parts. The absence of the same qualifying language with regard to "actual lewd exhibition of the genitals" suggests a legislative intent that the exhibition must be unclothed.
This interpretation is also consistent with the construction given to section 800.03, Florida Statutes, which makes it "unlawful to expose or exhibit one's sexual organs . . . in a vulgar or indecent manner." See Hoffman v. Carson, 250 So.2d 891, 893-94 (Fla. 1971); see also G B of Jacksonville, Inc. v. State, 362 So.2d 951, 956 (Fla. 1st DCA 1978).
We therefore conclude that C.N.'s act of holding his clothed genitals in his hand did not constitute a "sexual performance." We accordingly reverse the judgments and sentences under trial court case number 91-4047-M. The appellant having advanced no argument on appeal regarding the judgments and sentences under trial court case number 91-4046-M, the judgments and sentences thereunder are affirmed.
AFFIRMED in part, and REVERSED in part.
SMITH, J., concurs.
ERVIN, J., dissents with written opinion.
In reversing appellant's two convictions for use of a child in a sexual performance and promotion of sexual performance by a child, the majority erroneously, in my judgment, focuses solely on the issue as argued by the parties, i.e., whether a sexual performance can occur simply by the child being directed to touch his clothed genitals, in the absence of any actual, lewd exhibition of the same. I would decline the parties' invitation to consider the arguments as framed and would answer the simple question of whether the evidence was legally sufficient to survive a motion for judgment of acquittal and, thus, go to the jury. From my examination of relevant provisions of Section 827.071, Florida Statutes (1989), I am firmly convinced that it was.
Although not raised by either party, I consider that a far more substantial inquiry is whether dual convictions can be imposed under Section 775.021(4)(a) and (b)(2), Florida Statutes (1989), for using a child in a sexual performance and promoting a sexual performance by a child, where the charges arise from a single criminal episode. Compare the convictions involved in the present case with those in Sirmons v. State, 634 So.2d 153 (Fla. 1994) (grand theft of an automobile and robbery with a weapon), and Johnson v. State, 597 So.2d 798 (Fla. 1992) (grand theft of cash and grand theft of a firearm). In both cases the supreme court held that only one of the two convictions could be lawfully imposed.
The first count of the information, charging the defendant with unlawfully inducing C.N., a child, to engage in a sexual performance, was based upon section 827.071(2), which provides, in pertinent part:
A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance. . . .
Count II, alleging that defendant unlawfully and knowingly produced, directed, or promoted a performance by C.N., a child, was grounded on section 827.071(3), which states in part:
A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. . . .
The essence of the offenses specified under subsections (2) and (3) is the commission of a sexual performance by a child, which is defined as "any performance or part thereof which includes sexual conduct by a child of less than 18 years of age." § 827.071(1)(h), Fla. Stat. (1989). The statutory definition of sexual conduct in section 827.071(1)(g) provides that such conduct can be carried out by various, alternative ways, including the "actual lewd exhibition of the genitals," or the "actual physical contact with a person's clothed or unclothed genitals." (Emphasis added.)
In the event the conduct involves the latter, the crime is accomplished by directing a child to make actual physical contact with his clothed genitals, as was done here. Under such circumstance, there is no statutory requirement that the act involve a lewd, open exhibition. Because the language the legislature employed is clear on its face, there is no need to resort to any aid of construction. See Clark v. Kreidt, 145 Fla. 1, 199 So. 333 (1940); Steinbrecher v. Better Constr. Co., 587 So.2d 492 (Fla. 1st DCA 1991).
I cannot agree with the majority's narrow reading of section 827.071(1)(g), so as to limit sexual conduct occasioned by "actual physical contact with a person's clothed or unclothed genitals" to a child having physical contact with another person. Contrary to the majority's interpretation, the legislature did not use the word "another" before the word "person's," rather it merely referred to "a person's" clothed or unclothed genitals, which could reasonably include the contact made only by the child-victim upon himself or herself, or contact by a child upon another person.
As I consider the majority's interpretation of the statutory provisions to be at odds with that clearly expressed therein, and because there was sufficient evidence to withstand appellant's motion for judgment of acquittal, I would affirm appellant's convictions as to both offenses.