Constructive Possession in Florida Child Pornography Cases

Florida child pornogrphy laws can be a complicated maze, especially for someone who has never been charged with a crime before. One thing that anyone facing criminal charges in Florida – and elsewhere – should know is that the burden is at all times on prosecutors to prove that you committed the crime with which you are charged. In child pornography possession cases, for example, the authorities have to prove that the person charged actually possessed the illicit material. A recent U.S. Court of Appeals for the Eleventh Circuit decision involving a Central Florida man is an example of how “possession” works in the internet age. The short answer is that if you have access to electronic files, you are likely to be considered in constructive possession of them.The defendant was living in Texas when the court said he received an email containing some 20 photos of child pornography. He moved to Tampa in 2012 to work on a shrimp boat and, soon thereafter, forwarded an email containing child pornography to another acquaintance. He was later arrested and charged with possessing and transporting child pornography. He was convicted on both counts after a trial in a federal court in Florida. He was sentenced to 20 years in prison.

The defendant later appealed the conviction, arguing that he should have been tried and charged in Texas, rather than Florida. He claimed the possession charge, for example, was based entirely on the email that he received while living in the Lone Star State. The Eleventh Circuit disagreed. Regardless of where he was living when he received the original email, the court said the jury could have found that he possessed other child pornography after that time, while living in Florida. He was living in Tampa when he sent at least one illicit photo, meaning that he was in possession of it in Florida at the time.

More importantly, the court said there was also sufficient evidence to show that the defendant constructively possessed the material from the Texas email while he was in Florida. “Constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object,” the court explained. In this case, evidence showed that the photos were stored on an external server, and the defendant admitted that he could retrieve them at any time. Since the defendant sent emails offering to exchange illicit images, the court said there was evidence showing that he intended to access the photos.

“Because while in Tampa [the defendant] had ‘the power and intent’ to access the attached images, the jury reasonably could find that he constructively possessed them there even though he had received them in Texas and never actually accessed them while in Tampa,” the court concluded.

If you or a loved one has been charged with a sex crime in Florida, it is essential that you seek the advice and counsel of an experienced lawyer. Clearwater child pornography attorney Will Hanlon is a seasoned lawyer who fights aggressively on behalf of clients charged with a wide range of offenses. Call our offices at (813) 228-7095 or contact us online to speak with Mr. Hanlon about your case.

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