Opinion
Case No. 1D02-3089.
Opinion filed June 9, 2003.
An appeal from the Circuit Court for Alachua County. Maurice V. Giunta, Judge.
Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General and Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.
In this direct appeal, Appellant challenges the denial of his motion for judgment of acquittal on count III, distribution of pornographic material to a child. The only evidence presented by the State to show that the material was obscene was the victim's testimony. After reviewing that testimony, we hold that the evidence was insufficient to 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 with directions that the trial court discharge Appellant as to count III.
KAHN and VAN NORTWICK, JJ., CONCUR.