‘Live’ Requirement Halts Florida Computer Sex Crime Conviction

It is important for anyone charged with a crime in Florida to understand that prosecutors at all times bear the burden of proving beyond a reasonable doubt that they committed the crime with which they are charged. That means establishing each and every legal element of the specific crime, as Florida’s Second District Court of Appeal recently explained.

A defendant was charged with two counts of using a computer to commit lewd or lascivious exhibition, which in Florida is a second-degree felony. Prosecutors alleged that the defendant sent several text messages to an unidentified 12-year-old girl. The victim asked him to stop contacting her, but prosecutors said he responded by sending the girl several sexually explicit messages. The content of those messages, according to the court, showed that he was aware of the girl’s age at the time, the court said. He was convicted following a jury trial.The defendant later appealed the decision, arguing that prosecutors failed to prove all of the legal elements of the specific crime with which he was charged. The Second District agreed. The appeals court explained that Florida law defines the crime of using a computer to commit lewd or lascivious exhibition to include the “intentional exposure of the genitals in a lewd or lascivious manner . . . live over a computer online service, Internet service, or local bulletin board service.” Prosecutors also have to prove that the person charged knew or had reason to believe that the exhibition would be viewed by a person under the age of 16.

In this case, the Court said the evidence showed that the defendant sent lewd photographs to the girl via text message. That activity didn’t qualify as a “live” transmission, however. It noted that state lawmakers changed the law in 2000 to make clear that the perpetrator and the victim need not be in the same place at the time of the lewd conduct for it to be considered a crime. But the legislative history made clear that they intended to keep the “live” requirement intact, according to the court.

“Although the transmission of the lewd pictures occurred as part of a live conversation between the victim and the defendant, the content of the still images was not live,” the court explained. While prosecutors may have had enough evidence to convict the defendant of “transmission of material harmful to a minor” under a different law, the court said they did not actually charge him with that crime. As a result, the court reversed the conviction.

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 internet sex crime 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 (727) 897-5413 or contact us online to speak with Mr. Hanlon about your case.

More blog posts:

Double Jeopardy in Florida Sex Crime Cases

Proving Intent in Florida Sex Crime Cases

Constructive Possession in Florida Child Pornography Cases

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