Karl Denhart v. State
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2008
KARL DENHART,
Appellant,
v.
Case No. 5D07-13
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed May 30, 2008
Appeal from the Circuit Court
for Marion County,
Hale R. Stancil, Judge.
James S. Purdy, Public Defender, and Anne
Moorman Reeves, Assistant Public Defender,
Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee,
and Wesley Heidt, Assistant Attorney
General, Daytona Beach, for Appellee.
PALMER, C.J.,
Karl Denhart (defendant) appeals his judgment and sentence which were entered
by the trial court after a jury found him guilty of committing the crime of promoting a
sexual performance by a child. Finding no harmful error, we affirm.
The defendant engaged in various types of sexual conduct with a seventeenyear-old female, and was involved in photographing those activities and then distributing
the photographs to others. Based on this conduct, he was convicted of committing the
crime of promoting a sexual performance by a child. The defendant raises four points on
appeal. First, he argues that the trial erred in denying his motion for entry of a judgment
of acquittal. We disagree.
The defendant was charged with violating section 827.071(3) of the Florida
Statutes which reads:
827.071. Sexual performance by a child; penalties
(1) As used in this section, the following definitions shall
apply:
***
(b) “Performance” means any play, motion picture,
photograph, or dance or any other visual representation
exhibited before an audience.
(c) “Promote” means to procure, manufacture, issue, sell,
give, provide, lend, mail, deliver, transfer, transmute, publish,
distribute, circulate, disseminate, present, exhibit, or
advertise or to offer or agree to do the same.
***
(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 a female, breast, with the intent to
arouse or gratify the sexual desire of either party; or any act
or conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed. A mother's
breastfeeding of her baby does not under any circumstance
constitute “sexual conduct.”
(h) “Sexual performance” means any performance or part
thereof which includes sexual conduct by a child of less than
18 years of age.
***
(3) A person is guilty of promoting a sexual performance by
a child when, knowing the character and content thereof, he
or she produces, directs, or promotes any performance
which includes sexual conduct by a child less than 18 years
of age.
§827.071, Fla. Stat. (2005).
The defendant maintains that the State failed to present a prima facie case
because the photographs at issue did not depict "sexual conduct" as proscribed by
paragraph (1)(g) of the statute. Specifically, the defendant maintains that the plain
2
meaning of the statute requires a showing that the child victim made contact with one of
the designated sexual areas of another person and that the State failed to present any
evidence to support a finding that the child victim in this case made contact with any of
the designated sexual areas of the defendant. Rather, the defendant contends the
evidence showed him making contact with the child’s breast.
The trial court properly concluded that the evidence presented by the State at
trial was sufficient to establish a prima facia case under section 827.071(3) of the
Florida Statutes. The statute, as written, defines sexual conduct broadly enough to
cover contact by one party with the designated sexual areas of another party regardless
of whether the child victim is making the contact or receiving the contact. 1
The defendant next argues that the trial court erred in agreeing to issue the
special jury instruction requested by the State regarding the fact that the defendant's
ignorance of the victim's age, the victim's misrepresentation of her age, or the
defendant's bona fide belief of the victim's age, is not a defense to the crime charged.
We find no abuse of discretion.
"The giving or withholding by a trial court of a requested jury instruction is
reviewed under an abuse of discretion standard of review." Worley v. State , 848 So.2d
491 (Fla. 5th DCA 2003). In Nicholson v. State, 748 So.2d 1092 (Fla. 4th DCA 2000),
1
The photographs also depict the child victim touching her own exposed breast
while posing for the camera. In light of our ruling, we need not reach the issue of
whether such conduct constitutes “sexual conduct” as defined in the statute. We do note
that in one case, Breeze v. State, 634 So.2d 689 (Fla. 1st DCA 1994), the court, in
dicta, appears to reject the conclusion that the term “sexual conduct” includes a child
victim’s actual physical contact with his or her own designated sexual areas, but Judge
Ervin, in dissent, sets forth compelling arguments, based upon the language of the
statute and the public policy in Florida to protect child victims from the dangers
associated with underage sexual conduct, that the statute does proscribe such sexual
contact by the child victim upon himself or herself.
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the defendant was convicted of promoting a sexual performance by a child in violation
of section 827.071(3). The defendant argued that the trial court erred in denying his
motion for judgment of acquittal because the State failed to prove that the defendant
knew that the victim was a minor. He further argued that the court erred in refusing to
instruct the jury that knowledge of the victim's age was an element of the offense. The
court rejected the arguments, stating:
We [. . .] follow the holding in Hicks v. State, 561 So. 2d
1284 (Fla. 2d DCA), rev. denied, 574 So. 2d 141 (Fla. 1990),
that the defe ndant's ignorance of the victim's age is not a
viable defense to the charge of use of a child in a sexual
performance. Where the state has a compelling interest in
protecting underage persons from being sexually abused or
exploited, an exception is recogni zed to the general rule that
every crime must include a specific intent, or a mens rea
and, so, ignorance of the age of the victim,
misrepresentation of age, or a defendant's bona fide belief
that such victim is over the specified age are not viable
defenses.
Id. at 1093. Accord State v. Snyder, 807 So. 2d 117 (Fla. 3d DCA 2002). We adopt this
holding as our own.
The defendant further argues that the trial court erred in permitting the State to
admit into evidence photographs taken of the inside and outside of the defendant's
house, arguing that the photos were irrelevant and overly prejudicial since they depicted
various articles of pornography hung on the walls of the defendant's home. We again
disagree. The defendant has failed to sustain his burden of proving that the trial court
abused its discretion in concluding that the photographs of the defendant's home were
relevant to corroborate the testimony presented by the State's witnesses concerning the
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fact that the crime took place inside the defendant's home and to refute a claim that the
photos of the child victim were altered by use of computer software.2
Lastly, the defendant argues that the trial court reversibly erred in adjudicating
him to be a sexual predator because Florida's sexual predator statute is unconstitutional
as applied to him. We again disagree.
Section 775.21 of the Florida Statutes (2007) sets forth the provisions of Florida's
Sexual Predator Act. As it relates to the defendant, the Act provides as follows:
775.21. The Florida Sexual Predators Act
***
(4) Sexual predator criteria.—
(a) For a current offense committed on or after October 1,
1993, upon conviction, an offender shall be designated as a
“sexual predator” under subsection (5), and subject to
registration under subsection (6) and community and public
notification under subsection (7) if:
1. The felony is:
***
b. Any felony violation, or any attempt thereof, of … s.
827.071 … .
§775.21(4), Fla. Stat. (2007). Thus, pursuant to the provisions of the Act, a person like
the defendant who is convicted of violating one of the statute's enumerated offenses
must be designated as being a sexual predator. Butler v. State, 923 So. 2d 566, 567
(Fla. 4th DCA 2006).
AFFIRMED.
SAWAYA and COHEN, JJ., concur.
2
We note that, even if the photographs had been improperly admitted, any such
error would have been harmless in light of the other evidence presented in his case.
5
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