State v. Brabson, III.
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Second District Court of Appeal
State of Florida, July Term, A.D. 2008
Opinion filed December 24, 2008.
Not final until disposition of timely filed motion for rehearing.
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No. 2D07-5619
Lower Tribunal No. 07-3960
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The State of Florida,
Appellant,
vs.
Kimberly Brabson, III,
Appellee.
An Appeal from the Thirteenth Judicial Circuit of Florida in and for
Hillsborough County, J. Rogers Padgett, Judge.
Bill McCollum, Attorney General, and Elba Caridad Martin, Assistant
Attorney General, (Tampa) for appellant.
Kynes, Markman & Felman and James E. Felman and Katherine Earle
Yanes, (Tampa) for appellee.
Before GERSTEN, GREEN, and CORTIÑAS, Associate Judges.
CORTIÑAS, J.
We review the trial court’s order granting the defendant’s motion to dismiss
nineteen counts of the information against Kimberly Brabson, III. Those counts
charged the defendant, Brabson, with promotion of a sexual performance by a
child, in violation of section 827.071(3), Florida Statutes (2007). We reverse
because, under the facts of this case, the determination of whether a particular
performance constitutes “actual lewd exhibition of the genitals” creates a factual
inquiry for a jury and not a legal question for the court.
Defendant coached a girls’ swim team at the school where he was employed.
Over a period of several months, defendant approached numerous girls on the
swim team with variations of the same story. The girls were asked to try on the
swimsuits under the pretense of determining sizes for purposes of placing orders
for the team swimsuits. Brabson convinced the girls to try on the swimsuits in his
office.
Unbeknownst to the girls, prior to their entering, Brabson had set up a
video camera in his office and had positioned the swimsuits at specific locations
that would place the girls within the camera’s view as they changed clothing.
The video tape created by the defendant is essentially broken up into three
distinct parts. In the first portion of the video, the bathing suits are placed at a
certain distance away from the girls such that the camera’s view ranges from below
the shoulders of each of the victims to above their knees. The faces of the girls are
visible depending on the individual victim’s height and whether she bends down.
2
Brabson is clearly seen setting up the camera and positioning the bathing suits in
his office at various points throughout the video while the girls are out of his
office.
The footage of the second segment of the video shows that Brabson
modified the location of the camera within the office and also altered the proximity
of the bathing suits to the camera. During the second segment of the video, the
camera was placed much closer to the victims as they undressed, causing them to
be videotaped at waist-level. This segment clearly focused on the genital region of
the victims when they faced the camera. The third segment of the video essentially
contains the same footage as the first segment, but retains the actual time lag in
between girls entering and exiting Brabson’s office. 1
In response to the charges, Brabson filed a motion to dismiss the nineteen
counts of promoting a sexual performance by a child. The court granted the
motion and dismissed all nineteen counts. We review this matter de novo. See
State v. Pasko, 815 So. 2d 680, 681 (Fla. 2d DCA 2002).
In criminal cases, motions to dismiss should be granted as sparingly as
motions for summary judgment in civil cases. State v. Ortiz, 766 So. 2d 1137,
1141-42 (Fla. 3d DCA 2000). “Dismissals in criminal cases are to be cautiously
1
The first segment appears to edit together the same separate instances visible in
the third segment, but without the natural progression of time in between different
girls present in the third segment.
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granted.” State v. Feagle, 600 So. 2d 1236, 1240 (Fla. 1st DCA 1992) (citing State
v. Hargrove, 552 So. 2d 281, 283 (Fla. 4th DCA 1989)). In order to defeat a
motion to dismiss, “[t]he State need only specifically dispute a material fact
alleged by the defendant or add additional material facts that meet the minimal
requirement of a prima facie case.” State v. Kalogeropolous, 758 So. 2d 110, 112
(Fla. 2000). “In meeting its burden of establishing a prima facie case, the State can
use circumstantial evidence, and all the inferences made are resolved in its favor.”
Id. (citing Boler v. State, 678 So. 2d 319, 323 (Fla. 1996)). In opposing a motion
to dismiss, the State does not need to demonstrate facts sufficient for sustaining a
conviction, but instead must only show the barest prima facie case. Hargrove, 552
So. 2d at 282. Moreover, it is not within the province of the trial court to make
factual determinations on a motion to dismiss or to consider the weight of
conflicting evidence or the credibility of witnesses. Ortiz, 766 So. 2d at 1142.
Section 827.071(3), Florida Statutes (2007) provides, in pertinent part, as
follows:
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. Whoever violates this subsection is guilty of
a felony of the second degree, punishable as provided in
s. 775.082, s. 775.083, or s. 775.084.
“Sexual performance” is defined as:
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Any performance or part thereof which includes sexual
conduct by a child of less than 18 years of age.
Section 827.071(1)(h), Florida Statutes (2007).
“Sexual conduct” is defined within the statute as:
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.”
Section 827.071(1)(g), Florida Statutes (2007) (emphasis added).
The Florida Supreme Court interpreted an earlier version of section 827.071
in Schmitt v. State, 590 So. 2d 404 (Fla. 1991). 2
Schmitt involved a father who
was accused of taking nude photographs of his daughter while she was between the
ages of eight and twelve years old. Among the issues reviewed in Schmitt was
whether an affidavit was sufficient to support a finding of probable cause in the
issuance of a search warrant. The probable cause affidavit recited the daughter’s
assertions of the various nude photographs taken of her by her father as well as the
various photography and video equipment and tapes and recordings kept by the
2
The relevant language in section 827.071, for purposes of this opinion, is
unchanged.
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father in their home. The affidavit also alleged a violation of section 827.071(5),
which prohibited any depiction known to include “sexual conduct” by a child. Id.
at 408. As part of its analysis, the Florida Supreme Court noted that the terms
“lewd” and “lascivious” are synonymous and “require an intentional act of sexual
indulgence or public indecency, when such act causes offense to one or more
persons viewing it or otherwise intrudes upon the rights of others.” Id. at 410
(citing Rhodes v. State, 283 So. 2d 351, 356-57 (Fla. 1973)) (footnote omitted).
The Court further noted that “it is evident beyond all doubt that any type of sexual
conduct involving a child constitutes an intrusion upon the rights of that child,
whether or not the child consents and whether or not that conduct originates from a
parent.” Id. at 410-11. In distinguishing mere nudity from a lewd or lascivious
display, the court considered the photographer’s intent and actions. Id.
While it is conceivable that one might view the
allegations in the present affidavit as depicting simple
nudity, we believe the magistrate had a substantial basis
for concluding otherwise. The affidavit’s factual
allegations indicated that Schmitt did not treat the nudity
of himself, his daughter, and others in the offhand,
natural manner that might be expected if the conduct
were purely innocent-for example, if they were nudists.
Rather, the affidavit shows he made nudity a central
and almost obsessive object of his attention. Thus, the
magistrate reasonably could have believed that Schmitt’s
conduct toward his daughter included the “lewdness”
element required by the statute. While nudity alone
would not have sufficed, this overall focus of
Schmitt’s conduct tended to show a lewd intent and
thus created a substantial basis for believing that the
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search would fairly probably yield evidence of a
violation of section 827.071. Thus, the magistrate must
be upheld. Gates, 103 S.Ct. at 2332.
Schmitt, 590 So. 2d at 411 (emphasis added).
Thus, the lewdness requirement under section 827.071(1)(g) may be
satisfied by the intent of the person promoting the performance which included
sexual conduct by the child. See id. In the case before us, the victims were
completely unaware that they were being filmed and any right to privacy they may
have expected while changing in the closed, windowless office was violated.
Furthermore, the girls were not engaged in what could be considered typical dayto-day activities as they were most certainly manipulated into changing their
clothes, which they would not otherwise have done in Brabson’s office.
Although there are no Florida cases addressing the specific facts before us,
other jurisdictions have addressed similar statutes in nearly identical factual
scenarios. For example, one Ohio court applied a similar statute prohibiting the
creation, production, direction or transfer of material or a performance that shows a
minor in a state of nudity, in a case where the owner of a tanning salon was
secretly recording his female patrons during tanning sessions, including at least
one underage girl. 3 State v. Huffman, 165 Ohio App. 3d 518, 2006-Ohio-1106,
847 N.E.2d 58. In Huffman, the tanning salon’s owner had placed hidden wireless
3
The statute applied was Ohio Rev. Code Ann. § 2907.323(A)(1).
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cameras in different areas of his salon, with a direct feed into his DVD players.
After being notified, and receiving what appeared to be photographic evidence of
one of the hidden cameras, police obtained a warrant and executed it, finding
camera equipment and numerous DVDs containing videos of female patrons using
the tanning rooms. Id. at 522-23. Several DVDs containing pornographic images
of children were also discovered. Id. at 523. In challenging his convictions for the
illegal use of a minor in nudity-oriented performance, Huffman argued that the
state failed to prove that graphic displays or lewd exhibitions were involved. Id. at
533. The appellate court disagreed, noting that:
In this case, the state presented evidence of two
digital videos of a 16-year-old girl as she used Huffman’s
tanning facilities on two different dates. The images were
captured by a camera hidden behind a fan near the
tanning bed. The camera was positioned to focus on
the girl’s genitals. During the recording of one of the
videos, the camera was manually adjusted to capture
a clearer image of the girl’s genitals.
Given the secretive nature of the videotaping
and its blatant focus on the victim’s genitals, we hold
that the state presented sufficient evidence of
lewdness to sustain Huffman’s convictions for illegal
use of a minor in nudity-oriented material or
performance.
Id. at 534 (emphasis added.).
As explained by the Ohio appellate court, the
secretive nature of the recording coupled with the blatant focus on the genitalia of
the victims sufficiently demonstrated lewdness.
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While no Florida cases have
addressed this specific issue, we are persuaded by the Ohio court’s
acknowledgement that the very nature of the filming with a focus on the genitalia
demonstrates lewdness. In Fletcher v. State, 787 So. 2d 232 (Fla. 2d DCA 2001),
this court found that a warrant application which alleged, in part, the presence of
hidden cameras in the bathroom of Fletcher’s home and in his daughter’s bedroom
did not provide sufficient probable cause to issue a warrant.
The warrant
application also alleged that, based upon the information received from Fletcher’s
daughter, the police believed that the purpose of the hidden cameras was to
produce child pornography. Child pornography, in turn, requires that suspect
videos show children engaged in “sexual conduct” as defined in section
827.071(1)(g), Fla. Stat. (1997). Fletcher, 787 So. 2d at 235. The Fletcher court,
while finding that the warrant application was not sufficient to justify the issuance
of a warrant, distinguished Schmitt by noting that beyond alleging mere nudity, the
warrant also “showed that Schmitt ‘made nudity a central and almost obsessive
object of his attention’ and that an ‘overall focus of Schmitt’s conduct tended to
show a lewd intent. . . .’” Fletcher, 787 So. 2d at 235-36 (quoting Schmitt, 509 So.
2d at 411). The very issues Fletcher used to distinguish Schmitt are the same
points that render Fletcher distinguishable from the case before us. In the instant
case, as demonstrated by the defendant’s videotapes, nudity and female genitalia
were the focus of Brabson’s filming. The second portion of the videotape shows
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that Brabson positioned the camera at waist-level and placed the bathing suits in
relation to the camera in such a way that the victims’ genitalia became the focal
point of the recording.
The Fletcher opinion relied on Lockwood v. State, 588 So. 2d 57 (Fla. 4th
DCA 1991). In Lockwood, the Fourth District Court of Appeal found that a video
tape depicting a sixteen-year-old girl, apparently unaware that she was being
filmed, “undressing, showering, towling herself dry, and performing other acts of
feminine hygiene and donning clothing” did not meet the definition of “sexual
conduct” set forth in section 827.071(1)(g), Florida Statutes (1989) as applicable to
section 827.071(5), Florida Statutes (1989). Lockwood, 588 So. 2d at 57. The
Lockwood court specifically held:
The issue presented for our determination is whether the
tape contained a presentation that defendant knew
included sexual conduct by a child. The record reflects
that the tape does not show a presentation of sexual
conduct as defined by the statute. The presentation
shows, rather, the innocent, normal everyday occurrence
of a female child undressing, showering, performing acts
of female hygiene and donning her clothes, none of
which meets any of the detailed sexual acts contained in
the statute. It thus appears that the motion for judgment
of acquittal should have been granted.
Id. at 58.
The case before us, however, does not involve mere nudity as did Fletcher
and Lockwood, nor does it involve “normal everyday occurrence[s] of a female
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child undressing.” See Lockwood, 588 So. 2d at 58. The video also does not
involve seemingly voluntary and willing participation in “naturism.” See State v.
Kerrigan, 168 Ohio App. 3d 455, 458, 2006-Ohio-4279, 860 N.E.2d 816 (Ohio Ct.
App. 2006) (finding that videotapes depicting nude minors, along with nude adults
in certain instances, engaging in activities such as swimming, boxing, or playing
ball, did not violate a similar statute because they did not include “a lewd
exhibition or a graphic focus on the genitals”). In Lockwood and Fletcher, the
cameras were apparently placed in static locations and videotaped the nude victims
in everyday activities, such as showering or dressing, occurring in bedrooms or
bathrooms where such activities normally occur. In the instant case, Brabson
placed the camera in his school office. Brabson then lured the girls to his office,
where they otherwise would not have been undressing and changing into bathing
suits, but for Brabson’s cajoling. Furthermore, the victims seem to have been
enticed to change in the office with the intent that their nude bodies be visible to
the camera and recorded. What we have before us is a clearly orchestrated plan by
Brabson to videotape unsuspecting underage girls in a place where, but for
Brabson’s machinations, they would never have undressed.
In deciding cases involving the photography of nude minors, other
jurisdictions have found that “the issue . . . becomes whether lewdness is
determined only by what is depicted, by the photographer’s intent, or both.”
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Purcell v. Commonwealth of Kentucky, 149 S.W. 3d 382, (Ky. 2004). In Purcell,
the defendant had taken a nude photograph of a minor male child under the
pretense that the defendant had met with two women who were interested in
having sex with him and the minor, but only after they exchanged nude
photographs. Id. at 385. Although the defendant claimed to have destroyed the
picture, the artist’s rendition, consistent with the boy’s testimony, depicted a fullfrontal nude image of the child with his arms at his sides. Id. Identifying that “[a]
few jurisdictions have held that a nude depiction of a child absent any explicit
sexual conduct on the child’s part is per se not lewd,” the Supreme Court of
Kentucky “[found] more persuasive the holdings of other jurisdictions that
consider other factors, including the photographer’s intent and the intended
reaction of the expected viewer, in determining whether a particular performance
was a ‘lewd exhibition.’” Id. at 391 (citing United States v. Knox, 32 F.3d 733,
747 (3rd Cir. 1994)). Our Supreme Court’s holding in Schmitt appears to be
entirely consistent with the Kentucky Supreme Court’s view that the lewdness
requirement may be satisfied by the defendant’s intent. See Schmitt, 590 So. 2d at
411. The Purcell court relied on the test set forth in United States v. Dost, 636 F.
Supp. 828 (S.D. Cal. 1986), where:
[T]he [Dost] court enumerated six factors that may be
considered in determining whether a particular exhibition
is lewd, viz:
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1) whether the focal point of the visual depiction is the
child’s genitalia or pubic area;
2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated
with sexual activity;
3) whether the child is depicted in an unnatural pose, or
in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness
or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed to
elicit a sexual response in the viewer.
Purcell, 149 S.W. 3d at 392 (citing Dost, 636 F. Supp. at. 832).
Dost did not require that all six factors be present before a depiction could be
found to be lewd, but rather that the overall circumstances surrounding the visual
depiction be examined, taking into account the age of the child. Dost, 636 F. Supp.
at 832; see also Purcell, 149 S.W. 3d at 392.
The vast majority of jurisdictions
that have addressed the issue have adopted the Dost factors for determining what
constitutes a lewd or lascivious exhibition. See United States v. Arvin, 900 F.2d
1385, 1391 n.4 (9th Cir. 1990) (approving jury instruction based on Dost factors);
United States v. Wolf, 890 F.2d 241, 244-45 (10th Cir. 1989); United States v.
Villard, 885 F.2d 117, 122 (3d Cir. 1989); United States v. Rubio, 834 F.2d 442,
448 (5th Cir. 1987); United States v. Mr. A., 756 F. Supp. 326, 328 (E.D. Mich.
13
1991); Cummings v. State, 110 S.W.3d 272, 279 n.1 (Ark. 2003); People v.
Gagnon, 997 P.2d 1278, 1282 (Colo. Ct. App. 1999); People v. Bimonte, 726
N.Y.S.2d 830, 835-36 (N.Y. Crim. Ct. 2001) (noting that Dost factors distinguish
between innocent photographs and child pornography); Alexander v. State, 906
S.W.2d 107, 110 (Tex. Crim. App. 1995).
We find the Dost test helpful in determining whether a particular exhibition
is lewd. In the case before us, at least two of the factors are present. While the
initial part of the tape shows a wider angle and focuses mainly on the area between
the victims’ shoulders and above the knees, during the second segment, the
defendant modified the camera’s location as well as the placement of the bathing
suits so that “the focal point of the visual depiction is on the child’s genitalia or
pubic area.” See Dost, 636 F. Supp. at 832. Furthermore, many of the child
victims are shown in complete nudity as they are changing into the bathing suits.
Because the Dost test does not require that all factors be present, we are satisfied
that enough evidence has been presented by the State to demonstrate a prima facie
case against Brabson. See Hargrove, 552 So. 2d at 282.
Accordingly, whether a depiction meets the Dost test is best left to the factfinder. Purcell, 149 S.W. 2d at 393 (citing Knox, 32 F.3d at 747); see also Arvin,
900 F.2d at 1390 (“[W]hether the item to be judged is lewd . . . is a determination
that lay persons can and should make.” (citing United States v. Thoma, 726 F.2d
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1191 (7th Cir. 1984))). Because issues of fact cannot and should not be resolved
by a court on a motion to dismiss a criminal case, we reverse the trial court’s order
granting dismissal.
Reversed and remanded.
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